Service Compression Website(s)
PLEASE READ THESE TERMS OF USE CAREFULLY (this “Agreement”). This Agreement has been prepared as a legally binding agreement between you (“you” or “your”) and Service Compression and its subsidiaries and affiliates (collectively, “Service Compression”, “us”, “our”, or “we”). Service Compression and you may be identified as “Party” or “Parties”.
This Agreement applies conditions to your use of any Service Compression website, portal or platform (collectively, the “Sites”). By accessing and using the Sites or manifesting your assent to this Agreement in any other manner, you agree to be bound by the terms and conditions of this Agreement. DO NOT ACCESS OR USE ANY SITES IN ANY WAY IF YOU DO NOT AGREE TO THESE TERMS OF USE. IMPORTANT NOTICE: YOUR USE OF THE SITES IS SUBJECT TO AN ARBITRATION PROVISION IN SECTION 7, REQUIRING ALL CLAIMS TO BE RESOLVED BY WAY OF BINDING ARBITRATION.
- Preliminary Provisions.
1.1. Revisions to the Agreement. We may revise and update this Agreement from time to time, and will post the updated Agreement to our website and any portal or interface that you access (our “Site”). ANY CHANGES TO THIS AGREEMENT WILL APPLY IMMEDIATELY UPON POSTING. Although we are not obligated to provide you with notice of any changes, any changes to this Agreement will not apply retroactively to events that occurred prior to such changes unless we provide you with adequate notice. Your continued use of the Sites will constitute your agreement to any new provisions within the revised Agreement.
- Ownership.
2.1. Sites. Service Compression, its affiliates or third-party licensors own and hold all right, title and interest in and to the Sites, including without limitation, all intellectual property contained therein, and all materials related to the Sites and all intellectual property derived from the Sites. No part of the Sites may be copied, reproduced, uploaded, posted, publicly displayed, transmitted, or distributed in any way to any other computer, server, website, or other medium for publication or distribution or for any commercial use without our prior express written consent.
2.2. Trademarks. “Service Compression,” the Service Compression logo and all Service Compression product names are trademarks or service marks of Service Compression or its affiliates (collectively, the “Marks”). No right or license to use the Marks is granted under this Agreement, except that you shall have the limited right to use the Marks solely as they appear in the Sites. You shall not use the Marks in any advertising or promotional material nor disclose Service Compression as a data source to any third party, except for such disclosures required by federal, state or local government regulations, or as otherwise may be prior authorized in writing by Service Compression. You shall not remove, alter or obscure any Marks or proprietary notices contained in the Sites or other materials provided by Service Compression.
- Restrictions on Your Use of the Sites. You agree that when accessing and using the Sites, you will not: (i) delete, modify, or attempt to change or alter any of the Sites or their content; (ii) introduce into the Sites any virus, rogue program, time bomb, drop dead device, back door, Trojan horse, worm or other malicious or destructive code, software routines, denial of service attack, or equipment components designed to permit unauthorized access to the Sites, or to otherwise harm other users, or any third parties, or perform any such actions; (iii) use the Sites to commit fraud or conduct other unlawful activities, including using stolen payment information to make a purchase; (iv) access or attempt to access any other person’s account, information, or content without permission; (v) copy, modify, create derivative works, reverse engineer, decompile, disassemble, or otherwise attempt to learn the source code, structure, or ideas upon which the Sites is based; (vi) use any bot, spider, or other automatic or manual device or process for the purpose of harvesting or compiling information from the Sites for any reason; (vii) use any content or information made available through the Sites in any manner that misappropriates any trade secret or infringes any copyright, trademark, patent, rights of publicity, or other proprietary right of any party; (viii) decrypt, transfer, frame, display, or translate (except translations for personal use) any part of the Sites; (ix) connect to or access any Service Compression computer system or network without authorization; or (x) use information from the Sites to create or sell a similar service. We may suspend or terminate, in whole or in part, your access to the Sites if you violate these Terms of Use.
- Disclaimer of Warranties. THE SITES ARE PROVIDED “AS IS”. WE DO NOT WARRANT OR MAKE ANY PROMISES REGARDING THE CORRECTNESS, USEFULNESS, ACCURACY, AVAILABILITY, OR RELIABILITY OF (I) YOUR USE OR THE RESULTS OF YOUR USE OF THE SITES; (II) ANY ADVICE YOU GLEAN FROM THE SITES WHETHER PROVIDED BY US OR A THIRD PARTY; OR (III) ANY OTHER CONTENT AVAILABLE THROUGH THE SITES. WE DO NOT PROMISE THAT THE SITES WILL BE UNINTERRUPTED OR WILL BE ERROR-FREE, OR THAT ANY DEFECTS WILL BE CORRECTED. THERE IS NO WARRANTY OF ANY KIND, INCLUDING ANY WARRANTY OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE.
SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST. IN THE EVENT THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS CONTAINED IN THESE TERMS OF USE SHALL BE DETERMINED BY A COURT TO BE INVALID OR UNENFORCEABLE, THEN SUCH PROVISIONS SHALL BE REFORMED TO THE MAXIMUM LIMITATION PERMITTED BY APPLICABLE LAW.
- Limitation of Liability. NONE OF SERVICE COMPRESSION AND ITS SUPPLIERS, LICENSORS, PARENT, AND AFFILIATES, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, ASSIGNEES, AND SUCCESSORS-IN- INTEREST, WILL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGES, CLAIMS, DEMANDS, LOST PROFITS, OR CAUSES OF ACTION, DIRECT OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE, RELATING TO THIS AGREEMENT, YOUR USE OF THE SITES, OR ANY INFORMATION YOU OBTAIN ON IT, OR ANY OTHER INTERACTION WITH THE SITES, AND YOU VOLUNTARILY AND UNEQUIVOCALLY WAIVE ANY LIABILITY OF SERVICE COMPRESSION. YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE SITES WILL BE TO STOP USING THE SITES.
IN ANY EVENT, THE MAXIMUM TOTAL LIABILITY OF SERVICE COMPRESSION, ITS SUPPLIERS, LICENSORS, AND AFFILIATES, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AND ASSIGNEES, OR SUCCESSORS-IN-INTEREST, FOR ANY CLAIM WHATSOEVER RELATING IN ANY WAY TO THIS AGREEMENT, INCLUDING CLAIMS FOR BREACH OF CONTRACT, TORT (INCLUDING, NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE, AND YOUR SOLE REMEDY, SHALL BE AN AWARD FOR DIRECT, PROVABLE DAMAGES NOT TO EXCEED THE LESSER OF ONE THOUSAND U.S. DOLLARS ($1,000.00 USD) OR THE AMOUNT THAT YOU HAVE SPENT ON THE SITES OVER THE PAST 12 MONTHS.
- Indemnification. YOU SHALL HOLD HARMLESS, INDEMNIFY, AND DEFEND SERVICE COMPRESSION, ITS SUBSIDIARIES, ITS AFFILIATES, ITS SUPPLIERS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES (COLLECTIVELY, THE “SERVICE COMPRESSION PARTIES”), FROM AND AGAINST ANY AND ALL CLAIMS (INCLUDING ANY AND ALL LIABILITIES, DAMAGES, LOSSES, COSTS, EXPENSES, AND REASONABLE ATTORNEYS’ FEES ARISING THEREFROM) ARISING OUT OF OR RELATING TO ANY ACTION OR PROCEEDING BROUGHT BY A THIRD PARTY AGAINST ANY ONE OR MORE OF THE SERVICE COMPRESSION PARTIES RESULTING FROM YOUR USE OF THE SITES.
- Agreement to Arbitrate. All disputes arising out of, or relating to, this Agreement (including formation, performance, breach, enforceability, and validity of this Agreement) or our provision of Sites shall be resolved by final and binding arbitration to be held in the English language in Tarrant County, Texas pursuant to the Commercial Arbitration Rules of the American Arbitration Association. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this Agreement, including any claim that all or any part, of this Agreement is void or voidable. We each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration we each waive any right to a jury trial. Without prejudice to the agreement to resolve disputes in binding arbitration set forth in the previous paragraph, either Party to this Agreement may obtain preliminary injunctive relief in a court of competent jurisdiction, for the purpose of enforcing any of the terms of this Agreement pending a final determination in arbitration or permanent relief for the purpose of enforcing arbitral awards. This Agreement is governed by and construed in accordance with the laws of the State of Texas, without giving effect to its principles of conflicts of law. Each Party hereby waives any defenses it may have before such courts based on a lack of personal jurisdiction or inconvenient forum. Each Party hereby expressly and irrevocably waives the right to a jury trial. The prevailing Party shall be awarded its reasonable attorneys’ fees and costs in any proceeding arising out of or related to this Agreement.
- General Provisions.
8.1. Relationship of Parties. The Parties acknowledge that this is a business relationship based on the express provisions of this Agreement and no partnership, joint venture, agency, fiduciary or employment relationship is intended or created by this Agreement.
8.2. Assignment. You shall not assign or transfer this Agreement or any rights or obligations under this Agreement without Service Compression’s prior written consent. A change in control constitutes an assignment under this Agreement. Any unauthorized assignment or transfer shall be void and constitutes ground for immediate termination of this Agreement by Service Compression. This Agreement binds and inures to the benefit of the Parties and their respective permitted successors and permitted assigns.
8.3. Severability. If any provision, or part thereof, of this Agreement becomes or is declared invalid, illegal or unenforceable in any respect under any law, such provision, or part thereof, shall be null and void, and deemed deleted from this Agreement. The validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired.
8.4. No Waiver. Any waiver is only valid to the extent expressly set forth in writing. No waiver by either Party of any right under this Agreement shall constitute a subsequent or continuing waiver of such right or any other rights under this Agreement.
8.5. Injunction. You acknowledge that the Sites are a valuable commercial product, the development of which involved the expenditure of substantial time and money. Any violation of the licenses granted hereunder, confidentiality obligations or infringement or misappropriation of Service Compression’s intellectual property rights shall be deemed a material breach of the Agreement, for which Service Compression may not have adequate remedy in money or damages, and Service Compression shall be entitled to injunctive relief, in addition to (and not in lieu of) such further relief as may be granted by a court of competent jurisdiction, without the requirement of posting a bond or providing an undertaking.
8.6. Force Majeure. Neither Party shall be liable for any failure or delay in its performance due to circumstances beyond its reasonable control (including, but not limited to, act of terrorism, war (declared or not declared), sabotage, insurrection, riot, act of civil disobedience, act of any government, accident, fire, explosion, flood, storm, earthquake, volcanic eruption, nuclear event, any act of God, labor disputes, failure or delay of shippers, or unavailability of components, equipment or hardware); provided that it notifies the other Party as soon as practicable and uses commercially reasonable efforts to resume performance.
8.7. Survival. The following sections shall survive the expiration or termination of this Agreement: 2(Ownership); 3 (Restrictions); 4 (Disclaimer); 5 (Limitation of Liability) 6 (Indemnification); 7 (Agreement to Arbitrate); and 8 (General Provisions).