1. THE SERVICES. Alectrona will provide Licensee with access to the Services in accordance with the terms and conditions of this Agreement.
2. DATA OWNERSHIP AND DATA RETENTION.
2.1 OWNERSHIP OF DATA. Any data furnished by Licensee pursuant to this Agreement at all times remain the property of Licensee.
2.2 DATA RETENTION. Alectrona is responsible for retention of unique identifiers to track software licensing, on Licensee’s Authorized Users’ computers only. Alectrona does not retain any personal, proprietary, or other data of Licensee.
3. MODIFICATIONS TO THIS AGREEMENT. Licensee agrees Alectrona may modify this Agreement or any policy or other terms referenced in this Agreement (collectively, "Additional Policies") at any time by posting a revised version of the Agreement or such Additional Policy on the Alectrona Website. Any revised terms will become effective thirty (30) days after Alectrona post them to the Alectrona Website or, if Alectrona provides Licensee a click-through or other means of accepting the revised terms, upon Licensee’s acceptance. Continued use of the Services after the revised terms become effective constitutes acceptance on Licensee’s part of such Additional Policies.
4. DEFINITIONS. As used in this Agreement and on the Alectrona website:
4.1 “Authorized User/Authorized Users” means Licensee’s employees, agents, and independent contractors who are authorized to use the Services and have been supplied user accounts by Licensee.
4.2 “Alectrona Confidential Information”, see Section 13.
4.3 “Alectrona Properties, see Section 14.1.
4.4 “Effective Date”, see Section 5.1.
4.5 “Service Suspension”, see Section 11.
4.6 “Services”, see Section 1.
4.7 “Source” shall mean a component or third-party software.
4.8 “Third Party Sites”, see Section 16.3.
4.9 “Licensee Content” shall mean any application, data, identification information, or any other content Licensee may provide to Alectrona pursuant to this Agreement.
5. TERM, TERMINATION AND SUSPENSION.
5.1 TERM. The term of this Agreement commences on the date of the Customer Order form for the term specified in the applicable Order.
5.2 TERMINATION OR SUSPENSION BY ALECTRONA OTHER THAN FOR CAUSE. We may suspend Licensee’s right and license to use any or all Services (and any associated Alectrona Properties), or terminate this Agreement in its entirety and, accordingly, cease providing all Services to Licensee, for any reason or for no reason, at the Alectrona’s discretion at any time by providing Licensee fifteen (15) days' advance notice in accordance with the notice provisions set forth in Section 20 below.
5.3 TERMINATION AND SUSPENSION FOR CAUSE. Alectrona may suspend Licensee’s right and license to use any individual Service or any set of Services, or immediately terminate this Agreement in its entirety (and, accordingly, Licensee’s right to use all Services), without advanced notice, if:
(i) Licensee’s attempt a denial of service attack on any of the Services;
(ii) Licensee’s attempt to hack or break any security mechanism on any of the Services, or Alectrona otherwise determine that Licensee’s use of the Services or the Alectrona Properties poses a security or service risk to Alectrona, or any Alectrona’s users of services, to any third party sellers or their respective customers, or may subject Alectrona or any third party to liability, damages or danger;
(iii) Licensee’s otherwise use the Services in a way that disrupts or threatens the Services;
(iv) Licensee is in default of Licensee’s payment obligations for longer than two (2) months;
(v) Alectrona determines, in their sole discretion, there is evidence of fraud with respect to Licensee’s account;
(vi) Licensee’s use any of the Alectrona Properties or Marks other than as expressly permitted herein;
(vii) Alectrona receives notice or Alectrona otherwise determines, in their sole discretion, that Licensee may be using Alectrona Services for any illegal purpose or in a way that violates the law or violates, infringes, or misappropriates the intellectual property rights of any third party;
(viii) Alectrona determines, in their sole discretion, that the provision of any of the Services to Licensee is prohibited by applicable law, or has become impractical or unfeasible for any legal, business or regulatory reason; or
(ix) subject to applicable law, upon Licensee’s liquidation, commencement of dissolution proceedings, disposal of Licensee assets, failure to continue Licensee business in the normal course, assignment for the benefit of creditors, or if Licensee becomes the subject of a voluntary or involuntary bankruptcy or similar proceeding related to Licensee liquidation or solvency.
5.4 TERMINATION OR SUSPENSION WITH NOTICE. Alectrona may also suspend or terminate Licensee right and license to use any individual Service or any set of Services within thirty (30) days if:
(i) Licensee is in default of any payment obligation with respect to any of the Services and Licensee fails to cure such payment obligation default within a thirty (30) day period.
(ii) Licensee breaches any other provision of this Agreement and fails, as determined by Alectrona, in their sole discretion, to cure such breach within thirty (30) days of first receiving notice of such breach.
5.5 EFFECT OF SUSPENSION OR TERMINATION
5.5.1 SUSPENSION. Upon suspension of Licensee’s use of any Services, in whole or in part, for any reason, (i) fees will continue to accrue for any Services that are still in use by Licensee, notwithstanding the suspension; (ii) Licensee remains liable for all fees, charges and any other obligations Licensee has incurred through the date of suspension with respect to the suspended Services; and (iii) all of Licensee rights with respect to the suspended Services shall be terminated during the period of the suspension.
5.5.2 TERMINATION. Upon termination of this Agreement for any reason: (i) Licensee remains liable for all fees, charges and any other obligations Licensee incurred through the date of termination with respect to the Services; (ii) all of Licensee’s rights under this Agreement will immediately terminate; (iii) all Licensee Authorized User accounts will be cancelled; and (iv) both parties will return to the other all property, content, and confidential information of the other party.
5.5.3 SURVIVABILITY. Notwithstanding this Section 5, Sections 5.5.3, 10.2, 11.3, 13, 14, 15, 16, 17, 19, 20, and 21, will survive the expiration or termination of this Agreement for any reason.
6. AUTHORIZATION AND LICENSE TO USE THE SERVICES. Subject to Licensee’s acceptance of and compliance with this Agreement, and with the payment requirements for the Services that are set forth on the applicable Service detail page on the Alectrona website (as such payment terms may be updated from time to time), Alectrona hereby grants Licensee a limited, non-exclusive and non-transferable license to access and use the Services, solely in accordance with the terms and conditions of this Agreement for Customer’s internal business purposes only and for the number of Devices listed on the Order. Licensee may access and use the Services Licensee subscribed to, as well as grant the authorized number of Authorized Users the right to access and use the subscribed Services.
7. PERMITTED USES GENERALLY
7.1 USE OF THIRD-PARTY SOFTWARE AND PLATFORMS. Licensee may use supported software, websites, or other online services or technology that Licensee utilizes to interface with the Services. Licensee acknowledges the Alectrona may change or remove features or functionality of the Services at any time.
7.2 AUTHORIZED USER ACCESS. Licensee may enable access and use of Licensee Content by Licensee Authorized Users, in accordance with the terms of this Agreement. Licensee is responsible for all terms and conditions applicable to Licensee Content.
8. RESTRICTED USES GENERALLY. Licensee Content and/or Licensee’s use of the Services may not: (i) constitute, promote, facilitate or permit gambling; (ii) knowingly interfere with or disrupt the integrity or performance of the Service or the data contained therein; (iii) include, promote or facilitate child pornography or other illegal activities, including without limitation, activities that might be libelous or defamatory, or otherwise malicious or harmful to any person or entity, or that discriminate based on race, sex, religion, nationality, disability, sexual orientation or age; (iv) distribute, share or facilitate the distribution or sharing of unauthorized data, malware, viruses, Trojan horses, spyware, worms, or other malicious or harmful code; or (v) reverse engineer, copy, harvest, violate, misappropriate or infringe the intellectual property, data, usage, or other proprietary rights of Alectrona, its affiliates, or any third party without that party’s consent. Any one-time waiver of these restrictions is in the Alectrona’s sole discretion and does not a constitute a waiver of this Section 8.
9. ACCOUNTS & AUTHORIZED USERS. Licensee may only create one Authorized User account per email address. Authorized User accounts cannot be shared with or used by anyone other than the assigned Authorized User. Additionally, Licensee is fully responsible for all activities that occur under Licensee Authorized User accounts, regardless of whether such activities are undertaken by Licensee or a third party. Therefore, Licensee should contact the Alectrona immediately if Licensee believes that Licensee’s account has been compromised in any way. Licensee is responsible for maintaining up-to-date and accurate information (including contact information) for Licensee Alectrona account. Alectrona is not responsible for any unauthorized access to, alteration of, or the deletion, destruction, damage, loss or failure to store any of Licensee Content, or other data which Licensee submits or uses in connection with Licensee account or the Services. Authorized Users will not be charged any fees for Services subscribed for by Licensee under this Agreement.
10. LICENSE TO USE THE ALECTRONA PROPERTIES
10.1 ALECTRONA PROPERTIES. Alectrona may make available to Licensee, for Licensee’s installation, copying and/or use in connection with the Services, from time to time, a variety of software, data and other content and printed and electronic documentation (all such materials hereby referred to as the "Alectrona Properties"). Subject to Licensee’s acceptance of this Agreement, ongoing compliance with its terms and conditions with respect to the subject Service, and payment as required for Licensee’s right to use the subject Service, Alectrona hereby grants to Licensee the right to install, copy and use the Alectrona Properties solely in connection with and as necessary for Licensee’s use of the Services in compliance with Alectrona’s Terms and Conditions. This grant constitutes a limited, non-exclusive, non-transferable license during the term of this Agreement. Under no circumstances may Licensee transfer or sublicense any rights granted to Licensee under this Section 10 to third parties.Except as may be expressly authorized under this Agreement:(i) Licensee may not attempt to, or in any way: modify, alter, tamper with, repair, or otherwise create derivative works of any software included in or accessed via the Alectrona Properties.(ii) Licensee may not sell, lease, license, or sublicense any of the Services or Alectrona Properties.(ii) Licensee may not attempt to, or in any way: reverse engineer, disassemble, or decompile the Alectrona Properties or the Services or apply any other process or procedure to derive the source code of any software included in or accessed via the Alectrona Properties.(iii) Licensee may not edit Documentation in any way that materially alters the meaning of the Documentation or causes the Documentation to become factually incorrect or misleading.
10.2 RESTRICTIONS WITH RESPECT TO USE OF MARKS. Licensee’s use of any trademarks, service marks, trade names, logos, and other designations of Alectrona and its affiliates ("collectively, Marks") shall strictly comply with the following provision:Other than as specified in this Agreement, Licensee may not use any Mark of the Alectrona or its affiliates, unless Licensee obtains the Alectrona's or its affiliates' prior written consent, which consent shall be at Alectrona’s sole and absolute discretion. In addition, Licensee agrees not to misrepresent or embellish the relationship between the Alectrona and Licensee, for example by implying the Alectrona supports, sponsors, endorses, or contributes money to Licensee or Licensee endeavors.
10.3 NONEXCLUSIVE RIGHTS. The rights granted by Alectrona in this Agreement with respect to the Alectrona Properties, the Marks and the Services are nonexclusive, and Alectrona reserves the right to: (i) act as a developer of products or services related to any of the products Licensee may develop in connection with the Alectrona Properties or via Licensee’s use of the Services; (ii) use Licensee Content as necessary for providing Services to Licensee; and (iii) use Licensee trademarks, service marks, and logos as required to provide the Services to Licensee.
11. AVAILABILITY OF ACCESS; SERVICE SUSPENSIONS; SECURITY; DATA MANAGEMENT
11.1 AVAILABILITY OF ACCESS. Licensee recognizes that the traffic of data through the internet or other communications systems may cause delays during the download of information from the Services and shall not hold Alectrona liable for delays which are ordinary in the course of internet use or the use of other communications systems.
11.2 SERVICE SUSPENSIONS. Alectrona will be entitled, without any liability to Licensee, to suspend access to any portion or all of the Services at any time, on a Service-wide basis: (i) for scheduled downtime to permit Alectrona to conduct maintenance or make modifications to any Service; (ii) in the event of a denial of service attack or other attack on the Service or other event that Alectrona determine, in Alectrona’s sole discretion, may create a risk to the applicable Service, to Licensee or to any of Alectrona’s other clients, if the Service was not suspended; (iii) due to factors that are outside of Alectrona’s reasonable control, including any force majeure event or Internet-wide disruption or related problems beyond the demarcation point of the Services; (iv) that are caused by Licensee or any third party; (v) that result from the failure of Licensee equipment, software or other technology and/or third party equipment, software or other technology; (vi) that arise from Alectrona’s suspension and termination of Licensee’s right to use the Services in accordance with this Agreement; or (vii) as a result of Alectrona’s determination that any Service or Licensee use of Service is prohibited by law or regulatory reasons (collectively, "Service Suspensions").Without limitation to Section 16.4, Alectrona will have no liability whatsoever for any damages, liabilities, losses (including any loss of data) or any other consequences that Licensee may incur as a result of disruption due to any Service Suspensions. To the extent Alectrona is able, Alectrona will endeavor to provide Licensee email notice of any planned Service Suspensions in accordance with the notice provisions set forth in Section 20 below and to post updates on the Alectrona websites regarding resumption of Services (if applicable) following any Service Suspensions, but shall have no liability for the manner in which Alectrona may do so or if Alectrona fails to do so.
11.3 SECURITY. Alectrona strives to keep Licensee Content secure but cannot guarantee that Alectrona will be successful at doing so, given the nature of the Internet. Accordingly, without limitation to Sections 6 and 9 above, and Section 15.3 below, Licensee acknowledges that Licensee bears sole responsibility for adequate security, protection and backup of Licensee Content and Applications. Alectrona strongly encourages Licensee, where available and appropriate, to (a) use encryption technology to protect Licensee Content from unauthorized access, (b) routinely archive Licensee Content, and (c) keep Licensee Applications or any software that Licensee uses or runs` with Alectrona’s Services current with the latest security patches or updates. Alectrona will have no liability to Licensee for any unauthorized access or use, corruption, deletion, destruction or loss of any of Licensee Content or Applications.
11.4 DATA MANAGEMENT. Alectrona and its affiliates, and agents are permitted, but not obligated, to review and retain Licensee Communications, Licensee Content, and Licensee data, as is necessary to provide Services, during the term of this Agreement. Alectrona may monitor Licensee communications, Licensee Content, and Licensee data to evaluate the quality of Services Licensee receives, Licensee’s compliance with the Agreement, the security of the Services, or for other reasons in the ordinary course of business. Licensee agrees that such monitoring activities will not entitle Licensee to any cause of action or other right with respect to the manner in which Alectrona or its affiliates or agents monitor Licensee communications, Licensee Content, and enforces or fails to enforce the terms of the Agreement. In no event will Alectrona or any of its affiliates or agents be liable for any costs, damages, expenses, or any other liabilities incurred by Licensee as a result of monitoring activities by Alectrona its affiliates or agents.
12.1 SERVICE FEES. In consideration of Licensee’s use of any of the Services, Licensee shall pay Alectrona the following charges:(i) Licensing fees are payable in advance, with the first payment being due and payable upon execution of this Agreement, and all subsequent payments being due and payable within ten (10) days after the end of each calendar month; and(ii) In addition to the charges of Sections 12.1(i), Licensee shall pay all applicable taxes and duties, including without limitation, applicable sales and use taxes.Alectrona may increase or add new fees for any existing Service or Service feature, by giving Licensee ninety (90) days' advance notice. Additionally, such notice will be posted on the Alectrona website on the Service detail page for the affected Service. Licensee agrees that Licensee is responsible for checking the Alectrona website each month to confirm whether there are any new fees and their effective date(s).
12.2 PAYMENT. Alectrona may specify the manner in which Licensee will pay any fees, and any such payment will be subject to Alectrona’s general accounts receivable policies then in effect. All amounts payable by Licensee under this Agreement will be made in a timely manner, on or before the payment due date.
13.1 USE AND DISCLOSURE. Licensee shall not disclose Alectrona Confidential Information during the Term or at any time during the five (5) year period following the end of the Term of this Agreement. As used in this Agreement, "Alectrona Confidential Information" includes all nonpublic information, disclosed by Alectrona, Alectrona’s business partners or Alectrona’s respective agents or contractors, which is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. Alectrona Confidential Information includes, without limitation:(i) nonpublic information relating to Alectrona or Alectrona’s business partners' technology, customers, business plans, promotional and marketing activities, finances and other business affairs (including any information about or involving beta tests or a product that Licensee obtains as a result of Licensee’s participation in such beta test);(ii) third-party information that Alectrona is obligated to keep confidential; and(iii) the nature, content and existence of any discussions or negotiations between Licensee and Alectrona.Confidential Information does not include any information described in Section
13.2 or any information that Licensee is legally required to disclose, provided Licensee gives Alectrona prompt written notice of any such request for Alectrona’s Confidential Information so that Alectrona may seek a protective order or other relief to prevent or limit the requested disclosure.13.2 NON-CONFIDENTIAL INFORMATION. Notwithstanding any other provision in this Agreement, Licensee will not have any obligation to ensure the confidentiality of any information provided or made available by Alectrona hereunder, and Alectrona shall not have any confidentiality or non-use obligation to Licensee hereunder with respect to any information, software application, data or content provided or made available by Licensee hereunder that:(i) is or becomes publicly available without breach of this Agreement;(ii) can be shown by documentation to have been known to the receiving party at the time of its receipt from the disclosing party;(iii) is received from a third party who did not acquire or disclose the same by a wrongful or tortious act; or(iv) can be shown by documentation to have been independently developed by the receiving party without use of the disclosing party’s Confidential Information.
14. INTELLECTUAL PROPERTY
14.1 ALECTRONA SERVICES AND THE ALECTRONA PROPERTIES. Other than the limited use and access rights and licenses expressly set forth in this Agreement, Alectrona reserves all right, title and interest (including all intellectual property and proprietary rights) in and to: (i) the Services; (ii) the Marks; and (iii) any other technology and software the Alectrona provides or uses to provide the Services. Licensee does not, by virtue of this Agreement or otherwise, acquire any ownership interest or rights in the Services, the Marks, or other technology and software (including third party technology and software), except for the limited license, use, and access rights described in this Agreement.
14.2 LICENSEE APPLICATIONS, DATA AND CONTENT. Other than the rights and interests expressly set forth in this Agreement, Licensee reserves all right, title and interest (including all intellectual property and proprietary rights) in and to Licensee Content. Alectrona will not disclose Licensee Content, except: (i) if Licensee expressly authorizes Alectrona to do so in connection with Licensee’s use of the Services; or (ii) as necessary to provide the Services to Licensee, to comply with the Agreement, or the request of a governmental or regulatory body, subpoenas or court orders.
14.3 NON-ASSERTION. During and after the term of the Agreement, with respect to any of the Services that Licensee elects to use, Licensee will not assert, nor will Licensee authorize, assist, or encourage any third party to assert, against Alectrona or any of Alectrona’s customers, end users, vendors, business partners (including third party sellers on websites operated by or on behalf of Alectrona), sublicensees or transferees, any patent infringement or other intellectual property infringement claim with respect to such Services.
14.4 SUGGESTIONS, IDEAS, AND FEEDBACK. Alectrona will have the unrestricted right to use or act upon any suggestion, idea, enhancement request, feedback, recommendation or other information provided by Licensee, or any other party, relating to the Service to the extent it does not constitute Licensee Content.
15. REPRESENTATIONS AND WARRANTIES
15.1 USE OF THE SERVICES. Licensee represents and warrants Licensee and Authorized Users will not use the Services and Licensee Content: (i) in a manner that infringes, violates or misappropriates any intellectual property rights, publicity/privacy, or other rights of Alectrona or any third party; (ii) to engage in spamming or other impermissible advertising, marketing or other activities, including, without limitation, any activities that violate anti-spamming laws and regulations, including, without limitation, the CAN-SPAM Act of 2003; (iii) be deceptive, defamatory, obscene, pornographic, or unlawful; (iv) to transmit any viruses, worms, or other malicious computer programming codes intended to damage, surreptitiously intercept or expropriate any system, data or personal or personally identifiable information; (v) in any manner that constitutes or facilitates the illegal export of any controlled or otherwise restricted items, including, without limitation, software, algorithms or other data subject to export limitations; (vi) to violate or circumvent any federal, state, local law or regulation, including any ruling or interpretation of the Federal Elections Commission, or the appropriate elections administration agency; or (vii) in a way that is otherwise illegal or promotes illegal activities, including, without limitation, in a manner that might be libelous or defamatory or otherwise malicious or harmful or discriminatory to any person or entity.
15.2 LICENSEE CONTENT. Licensee represents and warrants: (i) that Licensee is solely responsible for the development, operation, and maintenance of Licensee Content, including without limitation, the accuracy, security, appropriateness, legality, applicable legal disclaimers, and completeness of Licensee Content and all related materials and descriptions; (ii) that Licensee has the necessary rights and licenses, consents, permissions, waivers and releases to use and display Licensee Content; (iii) that Licensee Content (a) does not violate, misappropriate or infringe any rights of Alectrona, its affiliates, or any third party, (b) does not constitute or contain defamatory material; does not invade third party rights of publicity or privacy; and/or does not otherwise violate any rights of any third party; and (c) is not designed for use in any illegal activity or to promote illegal activities, including, without limitation, any way that may be harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age; (iv) that Licensee Content does not contain any unauthorized data, malware, viruses, Trojan horses, spyware, worms, or other malicious or harmful code; and (v) to the extent to which Licensee uses any of the Marks, that Licensee will conduct Licensee business in a professional manner and in a way that reflects favorably on the goodwill and reputation of Alectrona.
15.3 AUTHORIZATION AND ACCOUNT INFORMATION. Licensee represents and warrants that: (i) the information Licensee provides in connection with Licensee registration for the Services is accurate and complete; (ii) Licensee is duly authorized to do business in the country or countries where Licensee operates, (iii) the individual signing this Agreement and completing the registration for the Services is an authorized representative of Licensee’s entity, and (iv) Licensee Authorized Users accessing the Services are duly authorized to access the Services and all transactions conducted under Licensee account.
16. DISCLAIMER & LIMITATIONS ON LIABILITY
16.1 GENERAL DISCLAIMER OF WARRANTIES. THE MARKS, THE SERVICES AND ALL TECHNOLOGY, SOFTWARE, FUNCTIONS, CONTENT, IMAGES, MATERIALS AND OTHER DATA OR INFORMATION PROVIDED BY ALECTRONA OR ALECTRONA’S AFFILIATES IN CONNECTION (COLLECTIVELY THE "OFFERINGS") ARE PROVIDED "AS IS." ALECTRONA AND AFFILIATES MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE OFFERINGS. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, ALECTRONA AND AFFILIATES DISCLAIM ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. ALECTRONA AND AFFILIATES DO NOT WARRANT THAT THE OFFERINGS WILL FUNCTION AS DESCRIBED, WILL BE UNINTERRUPTED OR ERROR-FREE, FREE OF HARMFUL COMPONENTS, OR THAT THE DATA LICENSEE STORES WITHIN THE OFFERINGS WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. ALECTRONA AND AFFILIATES WILL NOT BE RESPONSIBLE FOR ANY SERVICE INTERRUPTIONS, INCLUDING, WITHOUT LIMITATION, POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS, INCLUDING THOSE THAT AFFECT THE RECEIPT, PROCESSING, ACCEPTANCE, COMPLETION OR SETTLEMENT OF ANY PAYMENT SERVICES. NO ADVICE OR INFORMATION OBTAINED BY LICENSEE FROM ALECTRONA OR FROM ANY THIRD PARTY OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. LICENSEE AGREES THAT ANY EFFORTS BY ALECTRONA TO MODIFY ALECTRONA’S SERVICES WILL NOT BE DEEMED A WAIVER OF THIS GENERAL DISCLAIMER OF WARRANTIES. THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE SERVICES REMAINS WITH LICENSEE.
16.2 NO LIABILITY FOR LICENSEE CONTENT AND APPLICATIONS. In addition to the foregoing, Alectrona specifically disclaims all liability, and Licensee will be solely responsible for the development, operation, and maintenance of Licensee Content and for all materials that appear on or within Licensee Content housed on the Service.
16.3 NO LIABILITY FOR THIRD PARTY WEBSITES AND SOFTWARE. The Alectrona Website and/or the Services may contain links to websites or software applications that are not under Alectrona’s control ("Third Party Sites"). Alectrona is not responsible for the contents or functionality of any Third Party Sites or software. Alectrona provides these links to Licensee as a convenience and the inclusion of any such links does not constitute or imply Alectrona’s endorsement or validation of any Third Party Site or software.
16.4 LIMITATIONS OF LIABILITY. NEITHER ALECTRONA NOR ANY OF ALECTRONA’S AFFILIATES WILL BE LIABLE TO LICENSEE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR INTERRUPTION OF BUSINESS, LOSS OF DONATIONS, GOODWILL, USE, DATA OR OTHER LOSSES (EVEN IF ALECTRONA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, SUCH DAMAGES WERE REASONABLY FORESEEABLE TO ALECTRONA, OR ALECTRONA WAS NEGLIGENT) IN CONNECTION WITH THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY SUCH DAMAGES RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICES; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES; OR (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF LICENSEE CONTENT. IN ANY CASE, ALECTRONA’S AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY LICENSEE TO ALECTRONA HEREUNDER FOR THE SERVICES.SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO LICENSEE, AND LICENSEE MAY HAVE ADDITIONAL RIGHTS. IN SUCH JURISDICTIONS, OUR LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
17.1 GENERAL. Licensee agrees to indemnify, defend and hold Alectrona, Alectrona’s affiliates and Alectrona’s business partners (including third party sellers on websites operated by or on behalf of Alectrona) and each of Alectrona’s and affiliates’ respective employees, officers, directors and representatives, harmless from and against any and all claims, losses, damages, liabilities, judgments, penalties, fines, costs and expenses (including reasonable attorneys' fees), arising out of or in connection with any claim relating to (i) Licensee’s use of the Services in a manner not authorized by this Agreement, and/or in violation of the applicable restrictions, Additional Policies, and/or applicable law, (ii) Licensee Content, or Authorized User’s Content, or the combination of either with other applications, content or processes, including but not limited to any claim involving infringement or misappropriation of third-party rights and/or the use, development, design, manufacture, production, advertising, promotion and/or marketing of Licensee Content, (iii) Licensee’s breach of any term or condition of this Agreement or any applicable Additional Policies, including without limitation, Licensee representations and warranties, or (iv) Licensee or Licensee employees' or personnel's negligence or willful misconduct.
17.2 NOTIFICATION. Alectrona agrees to promptly notify Licensee of any claim subject to indemnification; provided that Alectrona’s failure to promptly notify Licensee will not affect Licensee’s obligations hereunder except to the extent that Alectrona’s failure to promptly notify Licensee materially prejudices Licensee’s ability to defend the claim. At Alectrona’s option, Licensee will have the right to defend against any such claim with counsel of Licensee’s own choosing (subject to a conflicts assessment), and to settle such claim as Licensee deems appropriate, provided that Licensee will not enter into any settlement without Alectrona’s prior written consent and provided that Alectrona may, at any time, elect to take over control of the defense and settlement of the claim.
18.1 ARBITRATION. The parties agree that any dispute arising in connection with the interpretation of this Agreement or the performance of either party under this Agreement or otherwise relating to this Agreement will be treated in accordance with the procedures set forth in this Section 19, prior to the resort by either Party to arbitration or litigation in connection with such dispute. The dispute will be referred for resolution first to the authorized representative of the party being notified. Such procedure will be invoked by either party presenting to the other a Notice of Request for Resolution of Dispute (a "Notice") identifying the issues in dispute sought to be addressed hereunder. A telephone or personal conference of those representatives will be held within ten (10) business days after the delivery of the Notice. In the event the telephone or personal conference between these representatives does not take place or does not resolve the dispute, either party may refer the dispute to binding arbitration pursuant to the arbitration provisions set forth below.All claims or disputes between the parties arising out of or relating to this Agreement will be decided by arbitration pursuant to the Commercial Arbitration Rules of the American Arbitration Association currently in effect and in accordance with Title 9 of the United States Code, unless the parties mutually agree otherwise in writing. Notice of the demand for arbitration must be filed, in writing, with the other party and must be made within a reasonable time after the dispute has arisen. All statutes of limitation, which would otherwise be applicable in a judicial action brought by a party, will apply to any arbitration or reference proceeding hereunder. The arbitration will be decided by a panel of three (3) arbitrators selected under the Commercial Arbitration Rules of the American Arbitration Association. Arbitration will be initiated in Washington, DC. Said arbitration will occur within thirty (30) consecutive days after the party demanding arbitration delivers the written demand on the other party, unless the parties mutually agree otherwise in writing. The award rendered by the arbitrators will be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof. Except by written consent of the parties, no arbitration arising out of or relating to this Agreement may include, by consolidation, joinder or in any other manner, any person or entity not a party to the Agreement under which such arbitration arises. The arbitration agreement herein among the parties will be specifically enforceable under applicable law in any court having jurisdiction thereof. Neither party will appeal such award nor seek review, modification, or vacation of such award in any court or regulatory agency.The arbitrators will award to the prevailing party, if any, as determined by the arbitrators, all of its Costs and Fees. "Costs and Fees" mean all reasonable pre-award expenses of the arbitration, including the arbitrators' fees, administrative fees, travel expenses, out-of-pocket expenses (such as copying and telephone), court costs, witness fees and attorneys' fees.
18.2 INJUNCTIVE RELIEF; JURISDICTION. Notwithstanding anything to the contrary, Alectrona may seek injunctive or other relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of Alectrona's or any third party's intellectual property and/or proprietary rights. Any dispute relating in any way to Licensee’s visit to the Alectrona Website or to products or services sold or distributed by Alectrona or its affiliates in which the aggregate total claim for relief sought on behalf of one or more parties exceeds $10,000 shall be adjudicated in any state or federal court in the Commonwealth of Virginia and Licensee consent to exclusive jurisdiction and venue in such courts.
18.3 GOVERNING LAW. Where the arbitration provisions of this Agreement are inapplicable, this Agreement will be governed by and construed in accordance with the laws of the Commonwealth of Virginia, without regard to principles of conflicts of laws.
19. NOTICES. Except as otherwise set forth herein, notices made by Alectrona to Licensee under this Agreement that affect Alectrona’s customers generally (e.g., notices of updated fees, etc.) will be posted on the Alectrona Website. Notices made by Alectrona under this Agreement for Licensee or Licensee’s account specifically (e.g., notices of breach and/or suspension) will be provided to Licensee via the email address provided to Alectrona in Licensee’s registration for the Services or in any updated email address Licensee provides in accordance with standard account information update procedures Alectrona may provide from time to time. It is Licensee’s responsibility to keep Licensee’s email address current and will be deemed to have received any email sent to any such email address, upon Alectrona sending of the email, whether or not Licensee actually receives the email.For notices made by Licensee to Alectrona under this Agreement and for questions regarding this Agreement or the Services, Licensee may contact Alectrona as follows:email@example.comAlectrona LLC2776 S Arlington Mill Dr #175Arlington, VA 22206
20. MISCELLANEOUS PROVISIONS
20.1 THIRD PARTY ACTIVITIES. If Licensee authorizes, assists, encourages or facilitates another person or entity to take any action related to the subject matter of this Agreement, including Authorized Users, Licensee will be deemed to have taken the action.
20.2 SEVERABILITY. If any portion of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect, and any invalid or unenforceable portions shall be construed in a manner that most closely reflects the effect and intent of the original language. If such construction is not possible, the provision will be severed from this Agreement, and the rest of the Agreement shall remain in full force and effect.
20.3 WAIVERS. The failure by Alectrona to enforce any provision of this Agreement will in no way be construed to be a present or future waiver of such provision nor in any way affect Alectrona’s right to enforce such provision or any other provision in this Agreement thereafter. All waivers by Alectrona must be in writing to be effective.
20.4 ENTIRE AGREEMENT. This Agreement incorporates by reference all policies and guidelines posted on the Alectrona Website, including all Additional Policies, constitutes the entire agreement between Licensee and Alectrona regarding the subject matter hereof and supersedes any and all prior or contemporaneous representation, understanding, agreement, or communication between Licensee and Alectrona, whether written or oral, regarding such subject matter. This Agreement may be only be amended or modified by a written agreement signed by an authorized representatives of the Alectrona.
20.5 RELATIONSHIP. Nothing in this Agreement is intended to or does create any type of joint venture, creditor-debtor, escrow, partnership or any employer/employee or fiduciary or franchise relationship between Licensee and Alectrona (or any of Alectrona’s affiliates).
20.6 FORCE MAJEURE. Alectrona will not be liable hereunder for any failure or delay in the performance of Alectrona’s obligations under this Agreement if such failure or delay is on account of causes beyond Alectrona’s control, including labor disputes, civil commotion, internet failures, network failures, cyberattacks, war, fires, floods, inclement weather, governmental regulations or controls, casualty, government authority, strikes, or acts of God, in which event Alectrona will be excused from their obligations for the period of the delay and for a reasonable time thereafter.