Terms of Use
These Terms of Service (these “Terms”) are between you (“you,” “Customer” (with respect to a business, organization or other legal entity), or “User” (with respect to an individual)) and XXV Inc., dba Warpdrive (“Warpdrive”, “we”, “our”, or “us”) and describe your rights and responsibilities when using the Warpdrive web-based software platform (the “Warpdrive Platform”) and related technology services (the “Services”) offered by us. These Terms, any Order Form(s) (as defined in Section 3.A (Services Subscription) below), and any terms and conditions, policies, and disclaimers referenced in these Terms, presented through the Services, or otherwise required to access certain features of the Services (the “Additional Terms”) form the “Agreement” between you and us with respect to the Services. If there is a conflict between these Terms and any Additional Terms, the Additional Terms will control with respect to the specific content, service or feature. All terms not defined in this paragraph have the meanings set forth in these Terms below. In the Agreement, the words “include” and “including” will not be construed as terms of limitation.
By accessing or using the Services, submitting an Order Form, or clicking a button or checking a box marked “I Agree” (or something similar), Customer, through its authorized representative, or a User, as applicable, signifies that you have read, understood, and agree to be bound by this Agreement, and are legally able to receive the Services under the laws of the United States or other countries in which you are resident or from which you use the Services. Users must be over the age of 18, and, if a business, duly organized and legally in good standing. A Customer must take all reasonable steps to ensure that its Users comply with these Terms.
PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION PROVISION IN SECTION 16.B (THE “ARBITRATION AGREEMENT”) AND CLASS ACTION/JURY TRIAL WAIVER PROVISION IN SECTION 16.C (THE “CLASS ACTION/JURY TRIAL WAIVER”) THAT REQUIRE, UNLESS YOU OPT OUT PURSUANT TO THE INSTRUCTIONS IN SECTION 16.B, THE EXCLUSIVE USE OF FINAL AND BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES BETWEEN YOU AND WARPDRIVE, INCLUDING ANY CLAIMS THAT AROSE OR WERE ASSERTED BEFORE YOU AGREED TO THESE TERMS. TO THE FULLEST EXTENT PERMITTED BY LAW, YOU EXPRESSLY WAIVE YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS, AS WELL AS YOUR RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS, COLLECTIVE, PRIVATE ATTORNEY GENERAL OR REPRESENTATIVE ACTION OR PROCEEDING.
1. Changes to these Terms
We may update these Terms from time to time. If we materially update any portion of these Terms, we will notify you, at the email address provided in your Account profile, or other reasonable means (for example, by posting a notice on our website) before the date the update becomes effective. We will also post the updated Terms in their original location marked with the new date. Changes will not be retroactive nor affect your current Subscription Term (as defined in Section 8.A (Subscription Term and Renewal) below). Your renewal of your Subscription Term after we publish or send a notice about changes to these Terms means that you are consenting to the updated terms.
2. Accounts
A. Users. Users must register an account with Warpdrive (an “Account”) prior to accessing the Services. Users agree to: (a) not share your Account or transfer any part of it with anyone else; (b) provide accurate, current and complete information during the registration process and keep your Account up-to-date; and (c) keep your password secure and confidential. Warpdrive reserves the right to refuse registration of, or cancel, passwords that we deem inappropriate. You agree to notify Warpdrive immediately of any unauthorized use of your Account and are responsible for anything that happens through your Account prior to closing it or reporting misuse to us. By registering for an Account, you acknowledge that the Customer License Administrator of your organization has control of and access to Your Content (as defined below in Section 4.A (License to Your Content) below). Furthermore, you (i) agree to comply with your organization’s terms and policies with regard to your use of the Service; and (ii) acknowledge your organization’s ability to monitor, restrict or terminate your or other Users’ access to Your Content. You understand and agree that by using the Services, you consent to the collection, use and disclosure of your personal information as set forth in this Agreement and Warpdrive’s Privacy Policy.
B. Account Profile. You may control your Account profile and how it interacts with the Services by changing the settings in your Account. You consent to Warpdrive’s using the email address you provide in your Account profile to send you Services-related notices, including any notices required by law, in lieu of communication by other means such as postal mail. Warpdrive may also use your email address to send you other messages, such as changes to Services features, special offers, or Services-related newsletters.
C. Customer License Administrator. If you are registering an Account as an administrator of the Services on behalf of a Customer (a “Customer License Administrator”), either through the online mechanism provided by us when you accept the Agreement or other registration process, you do so on behalf of all Users authorized by Customer to access and use the Services under Customer’s license; and you represent and warrant that you have the authority to legally bind the Customer and to grant Warpdrive all permissions and licenses provided in this Agreement.
D. Account Access. Customer is responsible for ensuring that access to and use of the Services comports with any limits stated in the applicable Order Form, including by (a) protecting all authentication keys and access tokens for the Services in accordance with the usage limitations; (b) prohibiting access to or use of the Services by anyone other than authorized Users; and (c) ensuring that the authentication keys or access tokens are used solely as necessary to exercise Customer’s rights granted under the Agreement. Customer is responsible and liable to Warpdrive for all activity that occurs with the authentication keys, access tokens or otherwise through or in connection with Customer’s User Accounts.
3. Provision of the Services
A. Services Subscription. A subscription to the Services may be procured through the Services interface, or in some cases, via an order form entered into between Customer and us (each, an “Order Form”). During the Subscription Term (as defined in Section 8.A (Subscription Term and Renewal) below), Warpdrive grants you a revocable, nonexclusive, non-sublicensable, non-transferable, limited license to (a) access and use the Services described in the applicable Order Form solely in accordance with any usage or license limitations set forth in the Order Form; (b) if applicable, install any software made available to you in connection with the Services (the “Software”) solely as permitted by the features of the Software, and use the Software solely for your internal business purposes; and (c) access any and all documentation related to the Services or Software that Warpdrive may make available from time to time in any format we may decide in our sole discretion (the “Documentation”) internally and solely in connection with your authorized use of the Services or Software, as applicable. Upon the written agreement of the parties, Warpdrive may also perform additional technical, supplemental, or professional services for Customer at either Warpdrive’s published pricing rates or at rates mutually agreed to in writing between Customer and Warpdrive. The definition “Services” is comprehensive of the Warpdrive Platform, Software, professional services, technical support, training materials, Documentation, and other services specific to Warpdrive’s and our affiliates’ products and services.
B. Subscription Fees. Unless otherwise provided in your Order Form, all Subscription Fees are payable by credit card or other payment method permitted by us from time to time, and you authorize us to charge your credit card or bank account for all fees payable during the Subscription Term, at the start of the applicable billing period specified in your Order Form (i.e., monthly or annually), and on each periodic renewal, for a period of time equal in length to the original Subscription Term. All fees related to the subscription are fully earned upon payment. You further authorize Warpdrive to use third-party payment processing services (each, a “Payment Processor”) to process payments and other monetary transactions made on and through the Warpdrive Platform. You agree to the applicable Payment Processor’s collection and use of your personal information in accordance with the Payment Processor’s privacy policy, and to the Payment Processor’s services agreement, including but not limited to the Stripe’s Services Agreement, available at https://stripe.com/us/legal, and Stripe’s Global Privacy Policy, available at https://stripe.com/privacy. Except as otherwise specified in the applicable Order Form, Subscription Fees for the Subscription Term are non-refundable, including in the event of a suspension or termination pursuant to Section 8.B (Termination or Suspension) below. In the event your usage increases over the limitations set forth in your Order Form, we reserve the right to charge or invoice you for the subscription package pertaining to your usage, on a prorated basis and less subscription fees you have already paid for the Subscription Term, commencing on the first day of the month of the Subscription Term in which the usage exceeded the applicable limit. You are responsible for all taxes, duties or other fees imposed, assessed or collected by or under the authority of any governmental body (“Taxes”) imposed on the transaction or the delivery of Services (except Taxes based on our net income), and acknowledge and agree that the amount billed for your subscription may vary due to promotional offers, changes in your subscription plan at the time of renewal (in accordance with this Agreement) or changes in Taxes, and you authorize us (or Payment Processor, as applicable) to charge your payment method for the changed amounts.
C. Free Trial Services. In certain cases, we may make Services to which you have subscribed available on a free trial basis (a “Trial”). In such event, we will make the Trial available to you until the earlier of: (a) the end of the then-current Trial period offered by us, (b) the start date of any paid Services you order, or (c) the date on which we elect in our sole discretion to terminate your access to the Trial (the “Trial Term”). You acknowledge and agree that the features and functionality of the Services may be limited during the Trial Term. In addition, any changes made to Your Content (as defined in Section 4.A (License to Your Content) below) or Customer Data (as defined in Section 5.B (License to Customer Data) below) (by you or for you) during the Trial Term may be permanently lost unless you purchase a subscription to the same or upgraded Services to those covered during the Trial Term. We reserve the right to delete Your Content and Customer Data following the Trial Term to the extent you do not purchase a paid subscription within seven (7) days following the end of the Trial Term. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, WE DO NOT PROVIDE ANY WARRANTY, SUPPORT OR INDEMNIFICATION OF ANY KIND WITH RESPECT TO THE SERVICES DURING THE TRIAL TERM.
D. Usage Limitations. The Services may be subject to certain limitations, such as, for example, (a) limits on the number of Users; (b) limits to named (not concurrent) devices or persons; or (c) limits on content storage capacity specific to Customer’s subscription type. Warpdrive will specify these limitations in the Order Form for the applicable subscription package. If Warpdrive makes modifications to these limits that would negatively impact Customer, these modifications will not apply to Customer until the start of Customer’s next Subscription Term, if any.
E. Services Updates. Customer’s use of the Services includes the right to access all functionality available in the product to which Customer subscribed in the Order Form, on the effective date of such Order Form. Warpdrive may enhance and modify the Services and introduce new Services from time to time but will provide Customer with notice unless such changes are of minor nature with no material effect on Warpdrive’s contractual obligations. Warpdrive will not make changes to the Services that materially reduce the functionality Customer purchased for the applicable Subscription Term. To the extent Warpdrive makes available any new or different features, functionality or enhancements to the Services, Warpdrive will market these separately and may require the payment of additional fees. Customer agrees that Warpdrive will not be liable to Customer or any third party for any modification of the Services in keeping with this section.
F. Software Updates. The Software and Services may automatically download and install updates from time to time from Warpdrive (or our licensors). These updates are designed to improve, enhance and further develop the Software or Services, as applicable, and may take the form of bug fixes, enhanced functions, new software modules and completely new versions. You agree to receive such updates (and permit us to deliver these to you) as part of your use of the Software or Services.
G. Third Party Products, Links, and Information. The Services may integrate with, or contain, third-party products, services, materials, or information, or links thereto that are not owned or controlled by us (“Third-Party Materials”). We do not endorse or assume any responsibility for any such Third-Party Materials. If Customer or any User accesses any third-party website or service, you do so at your own risk, and you acknowledge and agree that the Agreement and our Privacy Policy do not apply to your use of such sites or services. You expressly relieve us from any and all liability arising from your use of any Third-Party Materials.
4. Your Content
A. License to Your Content. You hereby grant us a fully paid-up, royalty-free, worldwide, nonexclusive right and license, with the right to sublicense, copy, reproduce, modify, use, publicly perform, display, distribute and create derivative works of any and all text, images, video, audiovisual content, works of authorship or other types of materials, information or communications, or hyperlinks to any of the foregoing that you provide, post, upload, publish, transmit or distribute on or through the Services, including your desktop and web actions and metadata (collectively, “Your Content”) during the Subscription Term: (a) to provide the Services to you in accordance with the Agreement; (b) to derive De-Identified Data pursuant to Section 5.E (De-identified and Anonymized Data) below; and (c) to perform such other actions as authorized or instructed by Customer in writing (email to suffice). The licenses granted to Your Content terminate within a commercially reasonable time after termination of this Agreement; however, you understand, acknowledge and agree that we may retain, but not display, server copies of Your Content that has been removed or deleted.
B. Your Responsibility for Your Content. We do not own Your Content, and you, not Warpdrive, have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of Your Content. In connection with Your Content, Customer, and User as applicable, represents and warrants that you: (a) have the written consent of each and every identifiable natural person in Your Content to use such person’s name or likeness in the manner contemplated by the Services and the Agreement; (b) have obtained (and are solely responsible for obtaining) all consents that may be required by federal, state or local law, regulation ordinance, court order or other legal process (“Applicable Law”) to submit Your Content (including but not limited to any of Your Content relating to third parties); (c) Your Content and our use thereof as contemplated by the Agreement and the Services will not violate any law or infringe any rights of any third party, including but not limited to any intellectual property rights and/or privacy rights; (d) we may exercise the rights to use Your Content granted under the Agreement without liability for payment of any guild fees, residuals, payments, fees, or royalties payable under any collective bargaining agreement or otherwise; and (e) Your Content is truthful and accurate. We expressly disclaim any liability for the data and content transmitted through or intermediately, temporarily or permanently stored on Warpdrive networks or any server and for the actions or omissions of Customers or Users.
C. Our Right to Remove Your Content. We have the absolute right to remove or disable access to any content on the Services as needed (a) to operate, secure and improve the Services (including without limitation for fraud prevention, risk assessment, investigation and customer support purposes); (b) to ensure compliance with the Agreement (or any Warpdrive policy), Applicable Law, or an order or requirement of a court, law enforcement or other administrative agency or governmental body; or (c) as otherwise set forth in this Agreement. If we become aware of any content posted through the Services that allegedly violates this Agreement, we may investigate the allegation and determine in our sole discretion whether to act, but have no liability or responsibility to you to do so. You agree to cooperate with us in good faith, as we may reasonably request, in any investigation we choose to undertake with respect to Your Content.
5. Customer Data
A. Compliance with Data Protection Laws. The parties to this Agreement recognize that this Agreement is subject to, and intended to comply with, all Applicable Law in the United States relating to the use, collection, retention, storage, security, disclosure, transfer, sale or other processing of personal information (collectively, the “Data Protection Laws”).
B. License to Customer Data. In connection with the provision of the Services to Customer, Warpdrive may process personal information and data from or about Customer’s authorized Users, employees, current or potential clients or other individuals that is collected, submitted, posted, displayed, uploaded or otherwise received from or provided by Customer’s Users by or through the Services (collectively, “Customer Data”). Customer hereby grants to Warpdrive a fully paid-up, royalty-free, worldwide, nonexclusive right and license, with the right to sublicense, copy, reproduce, modify, use, publicly perform, display, distribute and create derivative works of all Customer Data during the Subscription Term for the purpose of (a) providing the Services in accordance with the purposes set forth in the Agreement and applicable Order Form and in accordance with Customer’s instructions set forth in writing; (b) detecting data security incidents or to protect against fraudulent or illegal activity; and (c) enforcing Warpdrive’s rights under this Agreement.
C. Customer Data Disclosure. Warpdrive will not disclose or sell Customer Data other than as necessary to perform the agreed-upon Services, or in accordance with Customer’s instructions. Notwithstanding the foregoing, nothing in this Agreement will restrict Warpdrive’s ability to disclose Customer Data (a) to a subcontractor for a business purpose pursuant to a written agreement to protect the confidentiality of Customer Data, provided that Warpdrive shall be liable to Customer for the acts or omissions of any subcontractor to whom Warpdrive has disclosed or permitted to access Customer Data as if they were the acts or omissions of Warpdrive; (b) to a third party as necessary to comply with Applicable Laws; (c) with the Customer’s or User’s consent; or (d) as otherwise permitted by applicable Data Protection Laws.
D. Your Responsibility for Customer Data. Warpdrive does not own any Customer Data, and you, not Warpdrive, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data. Customer acknowledges and affirms that Customer has provided all notices and obtained all consents necessary, if any, under the Data Protection Laws, to provide to Warpdrive, or permit Warpdrive to access and collect, Customer Data for the purposes described in this Agreement. Customer shall not submit, or cause to be submitted by any User, Customer Data that includes (a) personal information relating to a resident of the European Economic Area or which may be subject to the General Data Protection Regulation (GDPR); (b) personal information or other data that may be subject to additional protections under applicable laws or regulations including, but not limited to, the Gramm-Leach-Bliley Act (GLBA) or the Health Insurance Portability and Accountability Act (HIPAA), the Children’s Online Privacy Protection Act (COPPA); or (c) a social security number, passport number, driver’s license number, or similar identifier, credit card or debit card number, financial information, without Warpdrive’s prior written approval.
E. De-Identified or Anonymized Data. Warpdrive will have the right to derive De-Identified Data from Customer Data and/or to collect, analyze and use De-Identified Data and/or aggregate data directly from the Services. You acknowledge and agree that Warpdrive may use De-Identified Data and aggregate data to: (a) analyze, improve, market or develop the Services or new products and services; (b) train predictive models; (c) conduct research; and (d) inform Warpdrive’s marketing and advertising campaigns. “De-Identified Data” means any data, including but not limited to Customer Data, usage data, metadata or other data generated from Customer’s and its Users’ use of the Services and the interaction of the Services with Your Content, from which all personal information, including direct and indirect identifiers, has been removed or obscured so that the remaining information does not reasonably identify an individual, and for which Warpdrive has implemented technical safeguards and business processes to prohibit the reidentification of such data. For clarity and without limitation, De-Identified Data shall not be deemed “Customer Data” or “Your Content,” and nothing in these Terms shall limit Warpdrive’s right, both during and after the Subscription Term, to use, store, transmit, modify, copy, display, sublicense and create derivative works from De-Identified Data.
F. California Consumer Privacy Act. To the extent the California Consumer Privacy Act of 2018 and its implementing regulations (the “CCPA”) applies, Warpdrive and Customer acknowledge that Warpdrive processes any and all “personal information” (as defined in the CCPA) contained in Customer Data for and on behalf of Customer as a “Service Provider” (as defined in the CCPA), and shall not collect, retain, use or disclose such personal information for any commercial purpose other than for the specific purposes of performing the Services, as instructed by the Customer, and as otherwise specified in the Agreement. Warpdrive agrees to reasonably cooperate with Customer, at Customer’s expense, to assist Customer with ensuring its compliance with the CCPA, including to respond to requests for access, knowledge, deletion or rectification to the extent such actions cannot be performed by Customer through the Service dashboard and User controls. If and to the extent Customer instructs Warpdrive to delete a User’s personal information in response to a consumer request received by Customer which cannot be performed by Customer through the Services dashboard, Warpdrive agrees to delete or de-identify such information within thirty (30) days of receipt of the request. For the avoidance of doubt, Warpdrive shall have no obligation to delete De-Identified Data.
5. Acceptable Use
A. Prohibited Activities. You shall not use, or encourage, promote, facilitate or instruct others to use the Services for any illegal, harmful or offensive use, including:
- accessing any content available through the Services through any technology or means other than those authorized by us on the Warpdrive Platform, such as by robot, spider, scraper or other automated means or manual process, for any purpose not authorized in the Agreement;
- interfering with or compromising the system integrity or security or deciphering any transmissions to or from the servers running the Warpdrive Platform, or otherwise causing harm to the Warpdrive Platform, such as attempting to mine information about users of the Services;
- attempting to gain unauthorized access to Accounts;
- removing, circumventing, disabling, damaging or otherwise interfering with security or other preventive features of the Warpdrive Platform;
- using the Services to transmit any computer viruses, worms, defects, Trojan horses, malicious code, spyware, malware or other items of a destructive or harmful nature;
- taking any action that imposes, or may impose at our sole discretion, an unreasonable or disproportionately large load on our infrastructure;
- attempting to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services;
- exporting, re-exporting, importing, or transferring any part of the Services except as authorized by United States law, the export control laws of your jurisdiction, and any other Applicable Laws;
- commercially exploiting the Services or making the Services available to any third party, other than to Users or as otherwise contemplated by this Agreement, or accessing the Services for the purpose of building a similar or competitive product;
- copying, translating, creating a derivative work of, reverse engineering, reverse assembling, disassembling, or decompiling the Services or any part thereof; or
- partaking in any activity that, in our sole judgment, restricts or inhibits any other person from using or enjoying any aspect of the Services or exposes or may expose any users of the Services to harm or liability of any sort.
B. Prohibited Content. You shall not transmit, store, display, distribute or otherwise make available any data or content through the Services that:
- is fraudulent, false, misleading (directly or by omission or failure to update information) or deceptive;
- is defamatory, libelous, harassing, abusive, obscene, sexually explicit, pornographic, vulgar or offensive;
- promotes discrimination, bigotry, racism, hatred, harassment or harm against, or is inappropriate towards any individual or group;
- is violent or threatening or promotes violence or actions that are threatening to any other person or animal;
- promotes illegal or harmful activities or substances; you do not have the permission from the content owner or individuals appearing in the content to post, free of charge;
- seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise;
- may constitute or contribute to a crime or tort;
- contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party’s trade secrets);
- creates a risk of any other loss or damage to any person or property; or
- violates any other Warpdrive policy.
5. Proprietary Rights
A. Ownership. As between Warpdrive and Customer (a) Customer and its licensors own all right, title and interest in and to (i) Your Content, (ii) Customer Data, and (iii) Customer’s copyrights, trademarks, service marks, trade names, trade secrets, and other intellectual and proprietary rights with respect to Customer’s products and services; and (b) Warpdrive and our licensors own all right, title and interest in and to (i) the Services (including, but not limited to, the Warpdrive Platform, Documentation and any information, text, links, graphics, photos, audio, videos, and all other forms of data or communication that Users can view on, access or otherwise interact with through the Services, with the exception of Your Content and Customer Data); and (ii) Warpdrive’s and our affiliates’ copyrights, trademarks, service marks, trade names, trade secrets, and other intellectual and proprietary rights with respect to Warpdrive’s and our affiliates’ products and services.
B. Feedback. If Customer or a User provides any feedback, comments, questions, suggestions, or the like about the Services (collectively "Feedback"), then Customer or User, as applicable, hereby assigns to Warpdrive all right, title, and interest in, and Warpdrive is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, including, without limitation, for the improvement, marketing, and promotion of the Services. Customer agrees that Feedback provided by Customer or its Users is given entirely voluntarily and that Feedback, even if designated as confidential by Customer, will not, absent a separate written agreement, create any confidentiality obligation for Warpdrive with respect to such Feedback.
C. Reservation of Rights. Each party reserves all rights not expressly granted in the Agreement, and no licenses are granted by either party to the other under the Agreement, whether by implication, estoppel or otherwise, except as expressly set forth herein.
5. Term and Termination
A. Subscription Term and Renewal. The initial term of the subscription for Services specified in an Order Form shall begin on the start date of your subscription as specified in the Order Form, and extend for the term specified in the applicable Order Form and any auto-renewal period agreed to by you (the “Subscription Term”). You may terminate your subscription by contacting support@warpdrive.co. Termination requests must be received at least one full calendar day prior to your next renewal date to avoid being charged for the next renewal period. Termination requests received after that will take effect the following renewal period.
B. Termination and Suspension. We may temporarily or permanently suspend access to the Services with respect to Customer or a User in the event that we suspect in good faith that Customer or a User is engaged in any conduct in violation of this Agreement, or has failed to make payment of the applicable Subscription Fee when due. In the event we suspend Customer’s Account, all User Accounts will be likewise suspended.
C. Effect of Termination. Upon the expiration or termination of the Agreement: (a) all rights and licenses granted by a party to the other party will immediately terminate; and (b) Warpdrive will terminate Customer’s and/or User’s access to Your Content and Customer Data through the Services. Any section of the Agreement that, by its terms or its nature, should survive the termination or expiration of the Agreement shall so survive. In the event we suspend or terminate your access to the Services, you understand and agree that you shall receive no refund or exchange for any unused time in the Subscription Term.
9. Confidential Information
A. Confidentiality. Warpdrive and Customer each agree to retain in confidence the non-public information and know-how disclosed pursuant to the Agreement which is either designated in writing as proprietary and/or confidential, if disclosed in writing, or if disclosed orally, is designated in writing (which may be via email) as confidential within thirty (30) days of the oral disclosure, or should reasonably be understood to be confidential by the recipient (the “Confidential Information”). Notwithstanding any failure to so designate them, the Services shall be Warpdrive's Confidential Information; and the Customer Data and Your Content shall be Customer’s Confidential Information. Each party agrees to: (a) preserve and protect the confidentiality of the other party’s Confidential Information; (b) refrain from using the other party’s Confidential Information except as contemplated herein; and (c) not disclose such Confidential Information to any third party except to employees, officers, affiliates, controlling stockholders, agents, advisors, subcontractors and other representatives as is reasonably required in connection with the exercise of its rights and obligations under the Agreement (and only subject to binding use and disclosure restrictions at least as protective as those set forth herein). Each party agrees to immediately notify the other party of any unauthorized disclosure or use of any Confidential Information and to assist the other party in remedying such unauthorized use or disclosure by taking such steps as are reasonably requested. Notwithstanding the foregoing, either party may disclose Confidential Information of the other party which is: (i) already publicly known without breach of the Agreement; (ii) discovered, created or independently developed by the receiving party without use of, or reference to, the Confidential Information of the disclosing party, as shown in records of the receiving party; (iii) otherwise known to the receiving party through no wrongful conduct of the receiving party; or (iv) required to be disclosed by law or court order; provided that the receiving party shall provide prompt notice thereof and commercially reasonable assistance to the disclosing party to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure. Moreover, either party hereto may disclose any Confidential Information hereunder to such party’s agents, attorneys and other representatives (and only subject to confidentiality obligations at least as protective as those set forth herein) or any court of competent jurisdiction as reasonably required to resolve any dispute between the parties hereto. Upon the disclosing party’s written request, the receiving party shall, within a reasonable time, return to the disclosing party or permanently delete or destroy any and all of the disclosing party’s Confidential Information, and any and all copies thereof, within its possession or control as may have been provided pursuant to the Agreement.
B. Data Security. Warpdrive employs commercially reasonable administrative, physical and technical safeguards and technologies, designed to secure Customer Data and Your Content from unauthorized access, disclosure or use. In the event that Warpdrive determines that unencrypted or unredacted Customer Data or Your Content was accessed or acquired by an unauthorized party, Warpdrive will promptly inform Customer without undue delay and shall provide reasonable cooperation with Customer’s investigation of the incident. Customer, as the owner or licensee of Customer Data and Your Content, shall be solely responsible for compliance with any notification obligations that may be required under Applicable Laws. NOTWITHSTANDING THE FOREGOING IN THIS SECTION 9.B, WARPDRIVE DOES NOT GUARANTEE THAT UNAUTHORIZED THIRD PARTIES WILL NEVER BE ABLE TO DEFEAT WARPDRIVE’S SECURITY MEASURES OR USE THE CUSTOMER DATA OR YOUR CONTENT FOR IMPROPER PURPOSES. CUSTOMER ACKNOWLEDGES THAT IT PROVIDES CUSTOMER DATA AND YOUR CONTENT AT ITS OWN RISK AND THAT WARPDRIVE TAKES NO RESPONSIBILITY AND ASSUMES NO LIABILITY FOR CUSTOMER DATA OR YOUR CONTENT.
10. Indemnification
You agree to indemnify and hold harmless Warpdrive, our affiliates, and each of our respective directors, officers, employees, shareholders and agents (collectively, the "Indemnified Parties") against any losses, claims, damages, liabilities, penalties, actions, proceedings, judgments, or any and all costs thereof (collectively, "Losses") to which the Indemnified Parties may become subject and which Losses arise out of, or relate to, the Agreement, your use of the Services, Your Content, Customer Data, your breach of any confidentiality obligation, any alleged infringement of any trademark, copyright, patent or other intellectual property right or breach of Applicable Law, and shall reimburse the Indemnified Parties for all legal and other expenses, including, but not limited to, reasonable attorney's fees incurred by the Indemnified Parties, in connection with investigating, defending, or settling any Loss, whether or not in connection with pending or threatened litigation in which the Indemnified Parties may be a party.
11. Limitation on Liability and Claims
WARPDRIVE WILL NOT BE LIABLE FOR: (A) ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF PROFITS OR LOSS OF REVENUE RESULTING FROM THE USE OF THE SERVICES BY YOU OR ANY THIRD PARTIES OR ANY FAILURE OF THE SERVICES; OR (B) ANY LOSS, EXFILTRATION, DISCLOSURE OR CORRUPTION OF CUSTOMER DATA, YOUR CONTENT OR OTHER DATA, INCLUDING, WITHOUT LIMITATION, LOSS OF DATA RESULTING FROM DELAYS, NON-DELIVERIES, MISS-DELIVERIES, SERVICE INTERRUPTIONS, FAILURE OF WARPDRIVE’S NETWORK, RECLAMATION OF SERVERS, FAILURE OF SERVERS, OR THE RELOADING OF AN OPERATING SYSTEM OR OTHER SOFTWARE ON A SERVER. IN NO EVENT SHALL WARPDRIVE'S AGGREGATE LIABILITY UNDER THE AGREEMENT EXCEED THE AGGREGATE AMOUNT PAID BY YOU TO WARPDRIVE IN THE BILLING CYCLE IMMEDIATELY PRECEDING SUCH CLAIM. NO CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT MAY BE ASSERTED BY YOU AGAINST WARPDRIVE MORE THAN ONE (1) YEAR FOLLOWING THE DATE OF THE EVENT THAT UNDERLIES ANY SUCH CLAIM.
12. Disclaimer of Warranties
WARPDRIVE PROVIDES ALL SERVICES “AS IS,” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. YOU BEAR THE ENTIRE RISK AS TO THE PERFORMANCE OF THE SERVICES. WARPDRIVE DOES NOT WARRANT THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR SECURE, AND ASSUMES NO RESPONSIBILITY OR LIABILITY OF ANY KIND FOR ERRORS IN THE SERVICES OR FOR THE CONSEQUENCES OF ANY SUCH ERRORS. YOU ACKNOWLEDGE THAT THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY THAT COULD RESULT IN THE LOSS OF YOUR CONTENT, PRIVACY, TECHNOLOGY, CUSTOMER DATA, CONFIDENTIAL INFORMATION, OR OTHER MATERIALS.
13. Infringing Content.
The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials available through the Services infringe your copyright, you may send us a written notice by mail or e-mail, requesting that we remove such material or block access to it. If you believe in good faith that someone has wrongly filed a notice of copyright infringement against you, the DMCA permits you to send Warpdrive a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA. See http://www.copyright.gov/ for details. Notices and counter-notices must be sent in writing to Warpdrive’s DMCA agent as follows: by mail to PO Box 14713, San Francisco, CA 94114; or by e-mail to copyright@warpdrive.co. Once this procedure has been followed, we will respond to valid and properly substantiated complaints by making all reasonable efforts to remove manifestly illegal content within a reasonable time. We may also at our sole discretion limit access to the Services and/or terminate the accounts of Users who infringe any intellectual property rights of others.
14. Force Majeure.
Neither party shall lose any rights hereunder or be liable to the other party for damages or losses on account of failure of performance by the defaulting party if the failure is due by any occurrence or contingency beyond its reasonable control, including, but not limited to, war, strike, fire, Act of God, earthquake, flood, lockout, embargo, pandemics, governmental acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of the nonperforming party; provided that such party shall use commercially reasonable efforts to promptly mitigate any damages or losses.
15. Publicity
Customer agrees that Warpdrive may publicly disclose that Warpdrive is providing Services to Customer and may include Customer’s name, logo, trade names, trademarks, service marks, trade dress, and other rights in indicia in any promotional materials, including without limitation any press releases issued by Warpdrive and on Warpdrive’s website and printed materials, and hereby grants to us a nonexclusive license to use, reproduce, and display Customer’s name, logo, service marks, trademarks, and related brand features (“Marks”) on or within the user interface of the Services, including as made available to actual or potential customers, as well as in marketing and promotional materials. We will use such Marks in compliance with any reasonable written usage guidelines provided to us by Customer. Except as set forth in this Agreement, neither party may publicly use the other party’s name, logo or other trade or service mark.
16. Governing Law, Arbitration, and Class Action/Jury Trial Waiver
A. Governing Law. You agree that: (a) the Services shall be deemed solely based in California; and (b) the Services shall be deemed a passive one that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than California. This Agreement shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, the Federal Arbitration Act (9 U.S.C. §§ 1-16) (“FAA”) governs the interpretation and enforcement of the Arbitration Agreement in Section 16.B and preempts all state laws to the fullest extent permitted by law. If the FAA is found to not apply to any issue that arises from or relates to the Arbitration Agreement, then that issue shall be resolved under and governed by the law of your state of residence. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the exclusive personal jurisdiction of the federal and state courts located in San Francisco County, California for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that San Francisco County, California is the proper and exclusive forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
B. Arbitration. READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM WARPDRIVE. This Section 16.B (the “Arbitration Agreement”) applies to and governs any dispute, controversy, or claim between you and Warpdrive that arises out of or relates to, directly or indirectly: (a) this Agreement, including the formation, existence, breach, termination, enforcement, interpretation, validity, or enforceability thereof; (b) access to or use of the Services, including receipt of any advertising or marketing communications; (c) any transactions through, by, or using the Services; or (d) any other aspect of your relationship or transactions with Warpdrive, directly or indirectly, as a consumer (“Claim” or collectively, “Claims”). The Arbitration Agreement shall apply, without limitation, to all Claims that arose or were asserted before or after your agreement to this Agreement.
If you are a new Warpdrive user, you can reject and opt-out of this Arbitration Agreement within thirty (30) days of accepting this Agreement by emailing Warpdrive at support@warpdrive.co with your first and last name and stating your intent to opt-out of the Arbitration Agreement. Note that opting out of this Arbitration Agreement does not affect any other part of this Agreement, including the provisions regarding controlling law or in which courts any disputes must be brought.
For any Claim, you agree to first contact us at support@warpdrive.co and attempt to resolve the dispute with us informally. In the unlikely event that Warpdrive has not been able to resolve a Claim after sixty (60) days, we each agree to resolve any Claim exclusively through binding arbitration by the American Arbitration Association (“AAA”) before a single arbitrator (the “Arbitrator”), under the Expedited Procedures then in effect for AAA (the “Rules”), except as provided herein. In the event of any conflict between the Rules and this Arbitration Agreement, this Arbitration Agreement shall control. AAA may be contacted at www.adr.org, where the Rules are also available. The arbitration will be conducted in San Francisco County, California, unless you and Warpdrive agree otherwise. If you are using the Services for commercial purposes, each party will be responsible for paying any AAA filing, administrative and arbitrator fees in accordance with AAA rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using the Services for non-commercial purposes: (i) AAA may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from AAA; (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. You and Warpdrive agree that the Arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether the Agreement, any provision of the Agreement, is unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, unconscionability, or estoppel.
Nothing in this Section shall be deemed as: preventing Warpdrive from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, Intellectual Property Rights or other proprietary rights; or preventing you from asserting claims in small claims court, if your claims qualify and so long as the matter remains in such court and advances on only an individual (non-class, non-representative) basis.
If this Arbitration Agreement is found to be void, unenforceable, or unlawful, in whole or in part, the void, unenforceable, or unlawful provision, in whole or in part, shall be severed. Severance of the void, unenforceable, or unlawful provision, in whole or in part, shall have no impact on the remaining provisions of the Arbitration Agreement, which shall remain in force, or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to the Arbitration Agreement. Notwithstanding the foregoing, if the Class Action/Jury Trial Waiver is found to be void, unenforceable, or unlawful, in whole or in part, because it would prevent you from seeking public injunctive relief, then any dispute regarding the entitlement to such relief (and only that relief) must be severed from arbitration and may be litigated in a civil court of competent jurisdiction. All other claims for relief subject to arbitration under this Arbitration Agreement shall be arbitrated under its terms, and the parties agree that litigation of any dispute regarding the entitlement to public injunctive relief shall be stayed pending the outcome of any individual claims in arbitration.
C. Class Action/Jury Trial Waiver. WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SERVICE FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AND WARPDRIVE AGREE THAT THE ARBITRATOR MAY AWARD RELIEF ONLY TO AN INDIVIDUAL CLAIMANT AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF ON YOUR INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED MAY NOT AFFECT OTHER WARPDRIVE USERS. YOU AND WARPDRIVE FURTHER AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND WARPDRIVE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO BRING, JOIN, OR PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND AS A PLAINTIFF OR CLASS MEMBER.
17. U.S. Government Restricted Rights
If the Services are being licensed by the U.S. Government, the Services are commercial computer software and documentation developed exclusively at private expense, and (a) if acquired by or on behalf of a civilian agency, shall be subject to the terms of this computer software license as specified in 48 C.F.R. 12.212 of the Federal Acquisition Regulations and its successors; and (b) if acquired by or on behalf of units of the Department of Defense (“DOD”) shall be subject to the terms of this commercial computer software license as specified in 48 C.F.R. 227.7202-2, DOD FAR Supplement and its successors.
18. Legal Investigations
Warpdrive will comply with any legal process or requirement including, but not limited to, any investigations, court orders, discovery orders, subpoenas, freeze orders, search warrants, information requests, wire taps, electronic intercepts and surveillance, preservation requests, and any other order from a court, government entity or regulatory agency (each an “Investigation” and collectively, “Investigations”). Warpdrive may charge User, Customer or any person seeking compliance with any Investigations for the reasonable costs and expenses associated with Warpdrive’s compliance with any Investigations. WARPDRIVE RESERVES THE RIGHT TO COMPLY WITH ANY INVESTIGATIONS WITHOUT NOTICE TO YOU. WARPDRIVE SHALL NOT BE DEEMED IN BREACH OF THE AGREEMENT FOR WARPDRIVE’S COMPLIANCE WITH ANY INVESTIGATIONS THAT REQUIRE THE SEQUESTERING OR DISCLOSURE OF ALL OR A PORTION OF THE CUSTOMER DATA OR YOUR CONTENT.
19. Compliance with Laws.
The parties recognize that this Agreement is subject to, and intended to comply with, Applicable Law, and agree that the Services addressed in this Agreement do not exceed those which are reasonably necessary to accomplish the commercially reasonable business purposes of this Agreement.
20. General Terms
This Agreement (including each Order Form) contains the entire understanding between Warpdrive and you relating to the subject matter herein and supersedes all prior oral or written agreements between us. We reject any additional or different terms proposed by you, including those contained in your purchase order, vendor onboarding process or web portal. In the event of a conflict between the terms of your Agreement and an Order Form, the terms of the Order Form shall control, but only as to that Order Form. You may not assign or transfer your rights and benefits under this Agreement without our prior written consent, but we may assign or transfer this Agreement without restriction. Except as set forth in this Agreement, nothing in this Agreement shall be deemed to confer any rights or benefits on any third party. No waiver, amendment, modification or addition to this Agreement shall be valid unless in writing and signed by both you and us. In the event any provision of this Agreement is determined to be invalid by a court of competent jurisdiction, such determination shall in no way affect the validity or enforceability of any other provision herein. Warpdrive and Customer are independent contractors, and this Agreement does not create a partnership, joint venture, employment or agency relationship between the Warpdrive and Customer or any User. This is a non-exclusive arrangement.
21. Information or Complaints
If you have a question or complaint regarding the Services, please send an e-mail to support@warpdrive.co. You may also contact Warpdrive by writing to PO Box 14713, San Francisco, CA 94114. Please note that e-mail communications will not necessarily be secure; accordingly you should not include credit card information or other sensitive information in your e-mail correspondence with Warpdrive. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.