BY USING OR OTHERWISE ACCESSING THE SERVICES, YOU AGREE TO THE AGREEMENT. IF YOU DO NOT AGREE TO THE AGREEMENT, PLEASE DO NOT USE OR OTHERWISE ACCESS THE SERVICES. USE OF THE SERVICES IS VOID WHERE PROHIBITED.
1. AUTHORITY; ELIGIBILITY
1.1 If you use the Services on behalf of a company, organization, or other entity, then (a) you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to the Agreement, and that you agree to the Agreement on the entity’s behalf, and (b) the word “you” includes you and that entity.
1.2 The Services are not designed for use by or in connection with anyone under the age of 18, and you accept all responsibility that may arise from your use of the Services in connection with any minors. Any use of or access to the Services by anyone under 18 is only permitted with the express written permission of such individual’s legal guardian, and, if necessary, you represent and warrant that you have received such permission. Any use or access to the Services by anyone under 13 is strictly prohibited and in violation of this Agreement.
Subject to the terms of the Agreement, Placer hereby grants to you a limited, revocable, non-exclusive, non-sublicensable, non-transferable license to access and use the Services. This license may be revoked by Placer at any time for any reason, with or without notice.
3. RESTRICTIONS AND RESPONSIBILITIES
3.1 You will not, directly or indirectly, or allow any third party to (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services; (b) re-identify any anonymized or statistical data provided by Placer, (c) modify, translate, or create derivative works based on the Services, (d) use the Services for timesharing or service bureau purposes or otherwise for the benefit of a third party, (e) remove any proprietary notices or labels, (e) circumvent any security control or access mechanism of the Services, or (f) use the Services in connection with any products, services, or activities that compete with Placer. You shall not distribute, sublicense, display, or otherwise provide to third parties any data provided by Placer; any data provided by Placer may be used solely for your internal business purposes. Notwithstanding the preceding sentence, Placer may consent to your display to third parties of a minimal amount of data provided by Placer (e.g., including a screenshot in a presentation); provided, however, that you must include an attribution to Placer and comply with other terms and conditions, if any, that Placer may specify when providing its consent.
3.2 You represent, covenant, and warrant that you will use the Services only in compliance with applicable laws and regulations. Although Placer has no obligation to monitor your use of the Services, Placer may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
3.3 You shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment“). To use some of the Services, you may be required to create an account with Placer (an ” Account“). Any information submitted as part of the Account creation process must be accurate and complete. You shall be responsible for maintaining the security of the Equipment, Account (including but not limited to administrative and user passwords), passwords and files, and for all uses of your Equipment or Account with or without your knowledge or consent.
4. PROPRIETARY RIGHTS
4.1 Placer shall own and retain all right, title and interest in and to (a) the Services, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with the Services, including, without limitation, support for the Services, and (c) all intellectual property rights related to any of the foregoing. No licenses are granted by estoppel or by implication.
4.2 You may provide feedback to Placer in respect of the Services. Feedback may include, without limitation, updates to or corrections of Placer’s data (e.g., a retail store may have moved or may have been closed). Placer may use any such feedback to improve the Services or for other purposes, without any obligation to you.
4.3 In the course of using the Services, you may upload data (e.g., your customer data) to the Services. Such uploaded data is referred to herein as “Customer Data“. You hereby grant Placer a nonexclusive, worldwide, royalty-free, perpetual, irrevocable, sublicensable and transferable right to use, modify, reproduce, distribute, prepare derivative works of, display and perform Customer Data (including all related intellectual property rights) in an aggregated and de-identified format (“Anonymized Customer Data“) in connection with the Services. You also hereby grant each user of the Services a non-exclusive license to access Anonymized Customer Data through the Services, and to use, modify, reproduce, distribute, prepare derivative works of, display and perform such Anonymized Customer Data as permitted through the functionality of the Services. For clarity, the foregoing license grant to Placer and users of the Services does not affect your ownership of your Customer Data. Placer reserves the right to remove any Customer Data and/or Anonymized Customer Data from the Services at any time for any reason. You, not Placer, remain solely responsible for all Customer Data that you upload, post, email, transmit, or otherwise disseminate using, or in connection with, the Services, and you warrant that you possess all rights necessary to provide such Customer Data to Placer and to grant the rights to use such Customer Data as provided herein.
5. TERM AND TERMINATION
5.1 The Agreement will remain effective until terminated.
5.2 You may terminate your use of the Services at any time for any reason. Placer may terminate the Agreement and your access to the Services (or, at Placer’s discretion, applicable portions of the Services) at any time for any reason.
5.3 In addition, Placer may take any actions it deems appropriate (including without limitation suspending or terminating your Account and your access to the Services), without notice to you, if Placer suspects or determines that you may have (i) failed to comply with any provision of the Agreement, or (ii) engaged in actions relating to or in the course of using the Services that may be illegal or cause liability, harm, abuse or disruption for you, Placer, the Services, or any third parties. You may, as a result of termination, lose your Account and all information and data associated therewith.
6. WARRANTY DISCLAIMER
6.1 YOU EXPRESSLY AGREE THAT USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, PLACER MAKES NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS, OR WILL BE ACCURATE, RELIABLE, OR FREE OF VIRUSES OR OTHER HARMFUL CODE. FURTHER, PLACER MAKES NO WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES.
6.2 Placer is not a backup service, and you are solely responsible for creating any backups of data. Placer is not responsible for decisions made based on the Services.
You agree to indemnify, defend and hold Placer and its affiliates or subsidiaries, or any of their directors, employees, agents, licensees or licensors (collectively, the “Placer Parties“) harmless from and against any and all claims, liabilities, damages, losses, costs, expenses, fees (including reasonable attorneys’ fees and court costs) arising out of or relating in any way to (1) your (or anyone accessing the Services using your Account) use of the Services, (2) information in your Account and any information you (or anyone accessing the Services using your Account) submit, post or transmit through the Services, (3) your (or anyone accessing the Services using your Account) violation of the Agreement, and (4) your (or anyone accessing the Services using your Account) violation of any rights of any other person or entity. Placer reserves the right, at your expense, to assume the exclusive defense and control of any indemnifiable matter and you agree to cooperate with Placer to defend these claims.
8. LIMITATION OF LIABILITY
8.1 UNDER THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE PLACER PARTIES SHALL NOT BE RESPONSIBLE OR LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUES, LOST PROFITS, LOST DATA OR BUSINESS INTERRUPTION OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATING IN ANY WAY TO THE AGREEMENT OR THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY PLACER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES WILL THE PLACER PARTIES IN THE AGGREGATE BE LIABLE TO YOU FOR MORE THAN THE AMOUNT YOU HAVE PAID TO PLACER FOR THE SERVICES IN THE NINETY (90) DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY APPLICABLE CLAIM. YOU ACKNOWLEDGE AND AGREE THAT IF YOU HAVE NOT PAID PLACER DURING SUCH NINETY (90) DAY PERIOD, THEN YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH PLACER IS TO STOP USING THE SERVICES AND TO CANCEL YOUR ACCOUNT.
8.2 Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for certain types of damages. Accordingly, some of the above limitations and disclaimers may not apply to you. To the extent that Placer or any other Placer Party may not, as a matter of applicable law, disclaim any warranty or limit its liability as set forth herein, the scope and duration of such warranty and the extent of Placer’s and such Placer Party’s liability shall be the minimum permitted under such applicable law.
9. EXPORT CONTROL
You may not remove or export from the United States or allow the export or re-export of the Services, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.
10. U.S. GOVERNMENT CONTRACTS
As defined in FAR section 2.101, any software related to the Services, and any associated documentation are “commercial items” and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of the Agreement and will be prohibited except to the extent expressly permitted by the terms of the Agreement.
11.1 Placer reserves the right, at its discretion, to change, modify, add or remove portions of the Agreement at any time by posting the amended terms on the Site (the “Placer Amendment Process“). Except as otherwise expressly stated, all amended terms shall automatically be effective immediately when posted, and you will be deemed to have accepted such changes by continuing to use the Services. If at any point you do not agree to any portion of the then-current version of the Agreement, or any other policy or rules relating to your use of the Services, you must immediately stop using the Services, and your license to use the Services shall immediately terminate. Besides the Placer Amendment Process, the only other process by which the Agreement between you and Placer may be modified would be by way of an order form for paid Services signed by both you and Placer.
11.2 Except as may be expressly specified in an order form for paid Services signed by both you and Placer, Placer reserves the right to add, change, suspend or discontinue the Services, or any aspect or feature of the Services, without notice or liability.
11.3 The Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of the Agreement.
11.4 The failure of either party to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision, and no waiver by either party of any breach or default by the other party shall be deemed to be a waiver of any preceding or subsequent breach or default.
11.5 If any provision of the Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the Agreement will otherwise remain in full force and effect and enforceable.
11.6 The Agreement is not assignable, transferable or sublicensable by you except with Placer’s prior written consent. Placer may transfer and assign any of its rights and obligations under the Agreement without consent.
11.7 No agency, partnership, joint venture, or employment is created as a result of the Agreement, and you do not have any authority of any kind to bind Placer in any respect whatsoever.
11.8 You hereby grant Placer a non-exclusive, worldwide, royalty-free, perpetual, irrevocable, sublicensable and transferable right to use your user name, company name, company logo, and any comments you make publicly or privately for Placer’s promotional purposes (such as on our Site, on third-party websites, and in marketing presentations, etc.).
11.9 The Agreement shall be governed by the laws of the State of California without regard to conflict of laws provisions. Any dispute, claim or controversy arising out of or relating to the Agreement or the breach, termination, enforcement, interpretation or validity thereof shall be determined by arbitration in California before a single arbitrator. The arbitration shall be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures. Judgment on the award may be entered in any court having jurisdiction. The parties shall maintain the confidential nature of the arbitration proceeding and the award, including the hearing, unless otherwise required by law or judicial decision. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator.