Service Terms and Agreement
These Service Terms and Agreement, together with the Subscription (as defined in Section 2 below), are an agreement (collectively, this “Agreement”) between GuardianUI LLC., a Delaware Limited Liability Company (“GuardianUI”), and the individual or company identified in the Subscription (“Customer”).
BY SIGNING UP TO ACCESS THE GUARDIANUI SERVICE YOU ARE REPRESENTING THAT YOU ARE OVER THE AGE OF 18, HAVE THE CAPACITY AND AUTHORITY TO ENTER INTO THIS AGREEMENT, AND ARE CONSENTING ON BEHALF OF YOURSELF AND/OR AS AN AUTHORIZED REPRESENTATIVE OF YOUR COMPANY, AS APPLICABLE, TO BE BOUND BY THIS AGREEMENT.
In consideration of the mutual promises contained in this Agreement, GuardianUI and Customer agree as follows:
Description GuardianUI runs a testing and monitoring service intended for development teams which includes the features and functionality described at the guardianui.com website (the “Site”) on the Subscription Date, as such features and functionality may change from time to time as provided in Section 6 (the “Service”). The Service is operated on GuardianUI’s hosting servers or those of its provider(s) to enable Customer and those of its employees, contractors, consultants, or contributors who have been authorized by Customer (“Authorized Users”) to access and use the Service via the web. (If Customer is an individual subscribing for personal use, the term Authorized User shall refer to him or her.)
Subscription and Subscription Date As used in this Agreement, the term “Subscription” means (a) an online order for the Service completed and submitted by Customer through the Site and accepted by GuardianUI, (b) a written Customer purchase order for the Service accepted by GuardianUI, or (c) another written agreement for the Service executed by both GuardianUI and Customer. “Subscription Date” refers to, as applicable, (i) the date Customer submits its online order through the Site, (ii) the date Customer issues its written purchase order, or (iii) the date both Customer and GuardianUI have executed a written agreement.
Term
This Agreement shall commence on the Subscription Date and, unless terminated early in accordance with Section 14 below, continue for (i) period specified in the Subscription as measured from the first day of the first calendar month after the Subscription Date, or (ii) if no period is specified in the Subscription, the date on which Customer begins using the Service (the “Initial Period”). This Agreement shall automatically renew for successive renewal periods of the same duration of the Initial Period (each, a “Renewal Period”) unless one party gives notice of termination or non-renewal pursuant to this Section 3 (the Initial Period, and all such Renewal Periods, collectively, the “Service Period”).
If Customer is using the Service under a Pro, Enterprise or other fee-based pricing plan (each, a “Paying Plan”), this Agreement shall automatically renew for successive renewal periods of the same duration of the Initial Period unless one party gives notice to the other of its intent not to renew at least 30 days prior to the expiration of the then pending term. If Customer is using the Service under a Free or non-paying Trial plan (each, a “Free Plan”), this Agreement will be deemed month-to-month and either party shall be free to not renew, or to terminate, this Agreement immediately upon notice to the other.
Pricing and Fees
The Customer shall make an advance payment to GuardianUI of the amounts set forth on the pricing schedule available at [URL] (the “Fees”). Unless otherwise set forth on the pricing schedule or in this Agreement, Fees are due within 30 days from the date of receipt of the relevant invoice. In the event the Customer is delinquent in fulfilling its payment obligations during the corresponding term, Customer agrees that GuardianUI may, without limiting any of its rights hereunder, in its sole discretion, require Customer to fulfill its payment obligations for any subsequent terms. In addition, Customer will be responsible for any sales, use, excise, import or export, value added, or similar tax or duty not based on GuardianUI’s income, including any penalties and interest, which may be assessed on the Fees. The Fees stated in Section 4 shall be charged to the Customer through the GuardianUI approved payment method chosen by the Customer. The Customer shall ensure in advance the availability of sufficient funds on the payment account submitted to pay for the Services provided. GuardianUI will notify Customer in advance, either through the Service or by email pursuant to Section 18, if GuardianUI changes Fees that would apply to Customer in a Renewal Period. If Customer does not agree to these changes, Customer must give notice of its intent to not renew the Agreement for such Renewal Period and stop using the Service on or before the effective date of termination. If Customer fails to give notice of non-renewal, Customer’s payment information on file will be charged at the new Fees thereafter.
All Customer prepayments, if any, for the Service (monthly, yearly or otherwise) shall be deemed fully earned upon payment and are non-refundable; this includes accounts that are renewed.
If this Agreement is terminated early by Customer pursuant to 14.1, or by GuardianUI pursuant to Section 14.2, Customer will not be obligated to pay the Fees following the effective date of termination. In all other cases, and regardless of whether Customer and its Authorized Users’ access or use the Service at the levels reflected in the Subscription or otherwise, Customer is responsible for paying all Fees through expiration of the Service Period.
Any amount not paid when due will bear interest at the rate of 1.5% per month or the maximum rate permitted by applicable law, whichever is less, computed and compounded daily from the date due until the date paid. Further, in the event of any action by GuardianUI to collect any amount not paid when due, Customer will pay or reimburse GuardianUI’s costs of collection (including, without limitation, any attorneys’ fees and court costs).
Taxes Customer is responsible for payment of all taxable amounts, including sales tax, value added tax, withholding taxes, export, import and other duties imposed by any governmental agency in connection with its use of the GuardianUI Services. All items of income, gain, expense and loss that GuardianUI is required to report shall be reported to the relevant federal, state and local taxing authorities under the name and taxpayer identification number of Customer. All amounts payable to GuardianUI hereunder shall not be subject to any set-off or deduction. All fees are exclusive of any applicable taxes, duties and similar governmental charges, and, except with respect to income taxes of GuardianUI, Customer agrees to hold GuardianUI harmless from all claims and liability arising from Customer’s failure to report or pay such taxes, duties or other governmental charges.
Service Access and Use Rights
Subject to this Agreement, GuardianUI will make the Service available to Customer and Authorized Users during the Service Period and GuardianUI hereby grants to Customer, during the Service Period, a nonexclusive, nontransferable, limited right to enable Authorized Users to access and use the Service through the interface and the Site, and to access and use GuardianUI’s technical and operations documentation and Agents (as defined in Section 8) in support thereof, solely for Customer’s internal, business use. Customer acknowledges that its and each Authorized User’s access and use of the Service are subject to GuardianUI’s Privacy Policy, which is published at the Site and incorporated into this Agreement by reference. GuardianUI may delegate the performance of certain portions of the Service to third parties, but will remain responsible to Customer for delivery thereof. GuardianUI may in its discretion modify, enhance or otherwise change the Service from time to time, provided that, if Customer is under a Paying Plan, such change does not adversely affect the Service as it existed at the Subscription Date.
GuardianUI may at its sole discretion and from time to time, offer access to services that are classified as a beta service, referring to services GuardianUI is testing and learning from, including but not limited to privately published versions of GuardianUI Service before making it generally available (also referred to herein as a “Beta Service”). A Beta Service may be a separate, stand-alone service, accessible apart from the currently available Service or may be a feature or functionality for existing Service. Access to and use of a Beta Service may be subject to additional agreements. GuardianUI makes no representations that a Beta Service will ever be made generally available and reserves the right to discontinue or modify a Beta Service at any time without notice. Any Beta Service provided by GuardianUI and any subsequent updates thereto are provided AS IS, and may contain bugs, errors or other defects. Your use of a Beta Service is at your sole risk and without warranty of any kind, express or implied, including but not limited to the warranties of merchantability, fitness for a particular purpose and noninfringement. GuardianUI will have no liability for any harm or damage arising out of or in connection with a Beta Service.
Support GuardianUI will provide support to Customer in accordance with our support policy which may be amended from time to time by GuardianUI. Customer agrees that GuardianUI is not responsible for providing support for any issues resulting from problems, errors or inquiries related to Customer's systems or hardware.
Agents; Third-Party Content GuardianUI may make various application program interfaces (APIs), agents, libraries and other materials available at the Site or through the Service from time to time in its discretion to support Customer’s access and use of the Service (collectively, “Agents”). Customer acknowledges and agrees that: (a) the Agents may only be used on systems owned, leased or primarily operated by Customer, (b) the Agents are made available solely to support access and use of the Service, and GuardianUI has no liability with respect to any other uses of the Agents, and (c) certain of the Agents may include third-party content that is subject to open source license terms that may expand or limit Customers’ rights to use such content. Customer agrees to review any electronic documentation that accompanies the Agents or is identified in a link provided to Customer to determine which portions of the Agents are open source and are licensed under open source license terms. To the extent any such license terms require that GuardianUI provide Customer the rights to copy, modify, distribute or otherwise use any open source software in the Agents that are inconsistent with the limited rights granted to Customer in this Agreement, then such rights in the applicable open source license terms shall take precedence over the rights and restrictions granted in this Agreement, but solely with respect to such open source software. Further, Customer acknowledges and agrees that all third-party content is governed by its respective terms and such terms are solely between Customer and the applicable licensor. Customer agrees to comply with such third-party terms (including open source license terms), as applicable, and GuardianUI has no liability with respect to third-party content under this Agreement.
Regulatory Notwithstanding anything to the contrary in this Agreement, the Customer shall not use the Services in connection with, or for the benefit of, provide Authorized User credentials to, or otherwise permit access to the Services by, any country, government, organization, entity, or person that is restricted by the HM Treasury Sanctions List, EU Consolidated List of Sanctions, United Nations Sanctions List, or any U.S. Treasury Department’s Office of Foreign Asset Control (“OFAC”) list.
Restrictions and Limitations
GuardianUI has implemented commercially reasonable, industry-standard technical and organizational measures designed to secure Customer Data from accidental loss and from unauthorized access, use, alteration or disclosure. GuardianUI does not represent, and, except as expressly set forth herein and the Privacy Policy, expressly disclaims that it meets the standards for operational compliance or certification in any specific area, including any government or industry-association requirements.
Customer is solely responsible for providing, installing and maintaining at its own expense all equipment, facilities and services necessary to enable Authorized Users’ access and use of the Service through the interface, including, without limitation all computer hardware and software and Internet access.
Customer will use commercially reasonable efforts to ensure, through proper instructions and enforcement actions, that all access to and use of the Service by Customer or Authorized Users’, or otherwise through Customer’s facilities, equipment, identifiers or passwords, will conform to this Agreement and will be made and used solely for proper and legal purposes, and will be conducted in a manner that does not violate any law or regulation, the rights of any third party or this Agreement. Customer is solely responsible for tracking and for ensuring the security and confidentiality of all user identifiers and passwords. GuardianUI has no liability with respect to any use or misuse of such identifiers or passwords, and any use thereof other than as provided in this Agreement will be considered a breach of this Agreement by Customer.
Without limiting the generality of Sections 10 and 12, no provision of this Agreement includes the right to, and Customer will not, directly or indirectly: (i) use the Services in connection with any illegal or unauthorized purpose or in any manner that damages or interferes with the Services’ operation; (ii) remove any copyright, trademark or other proprietary rights notices contained in the Services or any reports or outputs thereof, including the GuardianUI data and documentation; (iii) sublicense, sell, lease (including on a service bureau basis), share, distribute, or transfer the Services or make it available to anyone that is not an Authorized User, (iv) attempt to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service; (v) take any action that imposes, or may impose at GuardianUI’s discretion, an unreasonable or disproportionately large load on GuardianUI’s infrastructure; (vi) knowingly upload invalid data, viruses, worms, or other software agents through the Service; (vii) enable any person or entity other than Authorized Users to access and use the Service or Technology (as defined in Section 12(b)); (vii) modify or create any derivative work based upon the Service or Technology; (iix) engage in, permit or suffer to continue any copying or distribution of the Service or Technology; (x) reverse engineer, disassemble or decompile all or any portion of, or attempt to discover or recreate the source code for, any software that is part of the Service or Technology; (xi) access the Service in order to build a competitive solution or to assist any third party to build a competitive solution; (xii) remove, obscure or alter any proprietary notice related to the Service or Technology; or (xiii) engage in, permit or suffer to continue any use or other activity that is not expressly authorized under this Agreement by any person or entity within Customer’s control (“Unauthorized Use”). In the event Customer violates any of the terms set forth in this Section, in addition to any other remedies available at law or in equity, GuardianUI will have the right, in its discretion, to immediately suspend Customer’s and Authorized Users’ use and access to the Service.
Without limiting any other restrictions in this Agreement, as it relates to use of any APIs, the Customer shall not, either directly or indirectly: (i) integrate Customer’s application or system with the Services through APIs other than the documented APIs expressly made available and permitted by GuardianUI for such use, (iii) cache GuardianUI Data, (iv) interfere with or disrupt the APIs or the servers or network providing the APIs, or (vi) take any action that may impose an unreasonable or disproportionately large load on GuardianUI infrastructure, as determined by GuardianUI. GuardinanUI reserves the right at any time, without notice, to limit the number of requests the Customer may make to the API gateway of any API to protect the GuardianUI system or enforce reasonable limits on Customer’s use of an API and accordingly, specific throttling limits may be imposed and modified from time to time by GuardianUI.
Rights Grants to GuardianUI
In order to provide and support the Service for the benefit of Customer, Customer hereby grants GuardianUI a worldwide, non-exclusive, royalty-free, system-wide perpetual license during the Service Period to use, reproduce, electronically distribute, transmit, have transmitted, perform, display, store, and archive the data, text, software, audio, video, images or other content that Customer and/or any Authorized User run on or through the Service, cause to interface with the Service, upload to the Service, or otherwise transfer, process, use or store in connection with the Service (collectively “Customer Data”). Customer agrees that, so long as no Customer Confidential Information is publicly disclosed, GuardianUI may: (i) use Customer Data to refine, supplement or test GuardianUI’s product and service offerings; (ii) include aggregated and anonymized Customer Data in any publicly available reports, analyses and promotional materials; and (iii) retain anonymized, non-attributable Customer Data following any termination of this Agreement for use in connection with the foregoing.
During the Service Period, GuardianUI may list Customer as a customer and use Customer’s name and logo on the Site, on social media, on publicly available customer lists, and in media releases.
Proprietary Rights
Subject only to the limited rights expressly granted in this Agreement, as between Customer and GuardianUI, Customer shall retain all right, title and interest in and to the Customer Data and all intellectual property rights therein. Customer is solely responsible, and GuardianUI assumes no liability, for the Customer Data that Authorized Users or other third parties post, send or otherwise make available over or through the Service.
As used in this Agreement, “Technology” means any and all know-how, processes, methodologies, specifications, designs, inventions, functionality, graphics, techniques, methods, applications, computer programs, libraries, user manuals, documentation, products or other technology and materials of any kind, or any enhancement thereto, used by GuardianUI in connection with the performance of the Service or the Support, or made available by GuardianUI to Customer, any Authorized User, or any third party in connection with the Service or the Support. Without limiting the foregoing, Technology includes the products, services and technology made available through the Site, the Agents, the Service interface and any GuardianUI branded or co-branded websites (including sub-domains, widgets and mobile versions).
The Service and Technology constitute or otherwise involve valuable intellectual property rights of GuardianUI and all right, title and interest in and to the foregoing shall, as between the parties, be owned by GuardianUI. No title to or ownership of the Service or Technology, or any intellectual property rights associated therewith, is transferred to Customer, any Authorized User or any third party under this Agreement. Sections 6 and 10 set forth the entirety of Customer’s limited rights to access and use the Service and Agents and to make the Service and Agents available to Authorized Users. Except with respect to certain of the Agents, in no event shall Customer be entitled to access or review any object code or source code. GuardianUI reserves all rights to the Service and Technology not otherwise expressly granted herein.
Confidentiality
As used in this Agreement, “Confidential Information” means any information that is proprietary or confidential to the Discloser (as defined below) or that the Discloser is obligated to keep confidential (e.g., pursuant to a contractual or other obligation owing to a third party). Confidential Information may be of a technical, business or other nature. However, Confidential Information does not include any information that: (i) was known to the Recipient (as defined below) prior to receiving the same from the Discloser in connection with this Agreement; (ii) is independently developed by the Recipient; (iii) is acquired by the Recipient from another source without restriction as to use or disclosure; or (iv) is or becomes part of the public domain through no fault or action of the Recipient.
Each party reserves any and all right, title and interest (including any intellectual property rights) that it may have in or to any Confidential Information that it may disclose to the other party under this Agreement. The party that receives any Confidential Information (the “Recipient”) of the other party (the “Discloser”) will protect Confidential Information of the Discloser against any Unauthorized Use or disclosure to the same extent that the Recipient protects its own Confidential Information of a similar nature against Unauthorized Use or disclosure, but in no event will use less than a reasonable standard of care to protect such Confidential Information; provided that the Confidential Information of the Discloser is conspicuously marked or otherwise identified as confidential or proprietary upon receipt by the Recipient or the Recipient otherwise knows or has reason to know that the same is Confidential Information of the Discloser. The Recipient will use any Confidential Information of the Discloser solely for the purposes for which it is provided by the Discloser. This Section will not be interpreted or construed to prohibit: (i) any use or disclosure which is necessary or appropriate in connection with the Recipient’s performance of its obligations or exercise of its rights under this Agreement or any other agreement between the parties; (ii) any use or disclosure required by applicable law, provided that the Recipient uses reasonable efforts to give the Discloser reasonable advance notice thereof to afford the Discloser an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information; or (iii) any use or disclosure made with the consent of the Discloser. In the event of any breach or threatened breach by the Recipient of its obligations under this Section 13(b), the Discloser will be entitled to injunctive and other equitable relief to enforce such obligations. The obligations of confidentiality shall survive expiration or termination of this Agreement.
Early Service Termination
Either party may terminate this Agreement prior to the end of the Service Period in the event of a material breach of this Agreement by the other party if such other party fails to correct such breach within 30 days of notice.
In addition to the rights under Section 14.1, GuardianUI may terminate this Agreement immediately upon notice to Customer (i) if Customer breaches any provisions of Section 6, 10 or 11, (ii) in order to comply with applicable laws or regulations, (iii) if Customer defaults in the timely payment of any amounts due GuardianUI under a Paying Plan.
Effect of Expiration or Early Service Termination
Upon expiration or earlier termination of this Agreement: (i) any and all rights granted to Customer with respect to the Service and Technology, and except as set forth in Section 11 any and all rights granted to GuardianUI with respect to the Customer Data, will terminate effective as of the effective date of termination; (ii) Customer will return to GuardianUI any and all Confidential Information of GuardianUI in the possession or control of Customer; (iii) subject to Section 13.2, GuardianUI will return to Customer any and all Confidential Information of Customer in its possession or control; (iv) GuardianUI will have no obligation to provide the Service to Customer or Authorized Users after the effective date of the termination; and (v) Customer will pay to GuardianUI any amounts payable for Customer’s and Authorized User’s use of the Service through the effective date of the termination, together with all other amounts in accordance with Section 4. This Section 15 and Sections 4, 5, 10 through 13 and 16 through 18 shall survive the expiration or earlier termination of this Agreement.
GuardianUI’s only obligation with respect to any electronic information transmitted or received by Customer or Authorized Users in relation to Customer’s and Authorized User’s use of the Service is, upon Customer’s request, to promptly delete or destroy the information that is stored, if any, in the Service database on the effective date of termination. Customer acknowledges the duration of the retention of such information is determined by the terms of the applicable Free Plan or Paying Plan. In addition, Customer acknowledges that although information in the Service database will be deleted from its transaction servers, GuardianUI may retain such information stored on automatic backup archiving systems during the period such backup or archived materials are retained under GuardianUI’s customary procedures and policies. In addition, GuardianUI may retain certain information as provided in Section 11(a)(iii).
Representations and Indemnities
Customer hereby represents and warrants to GuardianUI that Customer has the authority to enter into and perform this Agreement and the Customer’s entering into this Agreement, and performance of its obligations and exercise of its rights under this Agreement, do not and will not violate any applicable laws, regulations or orders.
Customer hereby represents, warrants and covenants that, without limiting the foregoing: (i) Customer or its licensors owns all right, title and interest in and to Customer Data; (ii) Customer has all rights in Customer Data necessary to grant the rights contemplated by this Agreement; and (iii) Customer has obtained any necessary third-party approvals, including without limitations applicable vendors and licensors, in relation to third-party content to be used by Customer in connection with the Service or will obtain such approvals prior to such use.
GuardianUI hereby represents, warrants and covenants to Customer, if under a Paying Plan, that: (i) the Service and Technology as delivered to Customer and used in accordance with this Agreement will not infringe on any intellectual property right or other right of any other person or entity and (ii) GuardianUI has all rights in the Service and Technology necessary to grant the rights contemplated by this Agreement.
Customer agrees to defend, indemnify and hold harmless GuardianUI and its employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including without limitation attorneys’ fees) arising out of or related to: (i) Customer’s and Authorized Users’ use of and access to the Service; (ii) Customer’s or an Authorized User’s violation of any term of this Agreement; (iii) Customer’s or an Authorized User’s violation of any third-party right, including without limitation any right of privacy, publicity rights or intellectual property rights; (iv) Customer’s or an Authorized User’s violation of any law, rule or regulation; (e) any claim or damages that arise as a result of any Customer Data; or (v) any other party’s access and use of the Service with provided identifier(s) and password(s).
GuardianUI agrees to defend, indemnify and hold harmless Customer, if under a Paying Plan, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including without limitation attorneys’ fees) arising out of or related to: (i) GuardianUI’s breach of any representation, warranty or obligation in this Agreement or (ii) GuardianUI’s violation of any law, rule or regulation. In addition, if the Service or Technology becomes the subject of a claim of infringement of a U.S. copyright or patent, GuardianUI will indemnify Customer, if under a Paying Plan, against such claim provided that Customer gives GuardianUI prompt written notice of the claim, allows GuardianUI to direct the defense and settlement of the claim, and cooperates with GuardianUI as necessary, at GuardianUI’s expense, for defense and settlement of the claim. If the Service or Technology becomes, or, in GuardianUI’s opinion is likely to become, the subject of such a claim, GuardianUI shall have the right to obtain for Customer the right to continue using the Service or Technology, replace or modify the Service or Technology so that it becomes non-infringing, or terminate the rights granted hereunder to such Service or Technology with refund to Customer of any fees paid for such Service and Technology (less a reasonable charge for the period during which Customer has had available to it the use of such Service and Technology). GuardianUI will have no liability for any infringement claim to the extent it (1) is based on modification of the Service or Technology other than by GuardianUI; (2) results from failure of Customer to use any updated version of Service or Technology provided by GuardianUI to Customer; (3) is based on the combination or use of the Service or Technology with any other software, program or device not provided by GuardianUI if such infringement would not have arisen but for such use or combination; (4) results from compliance by GuardianUI with designs, plans or specifications furnished by Customer; or (5) results from Customer’s operation of the Service or Technology in a manner that is inconsistent with its intended use. THE FOREGOING STATES GuardianUI’S ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDIES FOR INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT. IF UNDER A FREE PLAN, CUSTOMER ACKNOWLEDGES THAT THIS SECTION 16 SHALL BE DEEMED DELETED AND OF NO FORCE OR EFFECT.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICE, TECHNOLOGY, SUPPORT AND ALL OTHER ITEMS PROVIDED IN CONNECTION THEREWITH ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. GuardianUI DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANY ERROR, DEFECT, DEFICIENCY, INFRINGEMENT OR NONCOMPLIANCE IN THE SERVICE, TECHNOLOGY, SUPPORT OR ANY OTHER ITEMS PROVIDED BY, THROUGH OR ON BEHALF OF GuardianUI UNDER THIS AGREEMENT (INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT AND ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE).
Limitations of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT TO THE EXTENT ARISING OUT OF CUSTOMER’S PAYMENT OBLIGATIONS, OR IN CONNECTION WITH CUSTOMER’S UNAUTHORIZED USE OR DISCLOSURE OF THE SERVICE OR GUARDIANUI INTELLECTUAL PROPERTY (COLLECTIVELY, THE “EXCLUDED LIABILITIES“), IN NO EVENT WILL EITHER PARTY BE LIABLE FOR CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR INDIRECT DAMAGES, OR LOST PROFITS, OR LOSS OF DATA ARISING OUT OF THIS AGREEMENT, REGARDLESS OF THE THEORY OF LIABILITY ASSERTED (INCLUDING NEGLIGENCE, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT), EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
UNDER NO CIRCUMSTANCES WILL GUARDIANUI BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR CUSTOMER’S ACCOUNT(S) OR THE INFORMATION CONTAINED THEREIN. GUARDIANUI ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM CUSTOMER’S OR AUTHORIZED USERS’ ACCESS TO AND USE OF THE SERVICE OR SUPPORT; (III) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (IV) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (IV) CUSTOMER DATA OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. EXCEPT FOR THEIR RESPECTIVE INDEMNITY AND CONFIDENTIALITY OBLIGATIONS HEREUNDER, IN NO EVENT SHALL EITHER PARTY, THEIR AFFILIATES, DIRECTORS, EMPLOYEES, OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY AUTHORIZED USER FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE FEES CUSTOMER PAID TO GuardianUI HEREUNDER.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, EXCEPT AS IT RELATES TO THE EXCLUDED LIABILITIES, IN NO EVENT WILL EITHER PARTY’S MAXIMUM AGGREGATE LIABILITY IN CONNECTION WITH THIS AGREEMENT EXCEED THE TOTAL AMOUNT TO BE RECEIVED BY GUARDIANUI IN CONNECTION WITH THE APPLICABLE SERVICE IN THE TWELVE (12) MONTHS PRIOR TO THE DATE ON WHICH THE CLAIM AROSE. THIS LIMITATION IS CUMULATIVE AND THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIABILITY LIMITATION.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, CUSTOMER ACKNOWLEDGES AND AGREES THAT GUARDIANUI PROVIDES TESTING AND MONITORING SERVICE ONLY AND HAS NO LIABILITY FOR THE TRANSACTIONS ANALYZED BY THE SERVICE OR FOR ANY ACTS OR OMISSIONS IN CONNECTION WITH THE SERVICE. IN NO EVENT WILL GUARDIANUI BE RESPONSIBLE IN CONNECTION WITH ANY ACTUAL OR POTENTIAL VIOLATIONS IN CONNECTION WITH CUSTOMER’S USE OF THE SERVICE OR FOR ANY CONTENT POSTED BY CUSTOMER OR OTHER AUTHORIZED USERS OF THE SERVICE.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF THE NON-BREACHING PART HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
Miscellaneous
Customer may not delegate, assign or transfer this Agreement or any of its rights and obligations under this Agreement and any attempt to do so shall be void.
GuardianUI may send Customer, in electronic form, information about the Service, additional information and any information the law requires GuardianUI to provide. Customer acknowledges and agrees that GuardianUI may provide notices to Customer by email at the address Customer specified in its Subscription or by access to a website that GuardianUI identifies. Notices emailed to Customer will be deemed given and received when the email is sent. If Customer does not consent to receiving notices electronically, Customer and its Authorized Users must stop using the Service. (Please note that these provisions relate to the customer business relationship and are distinct from marketing and similar emails covered by the “Opt-Out” provisions of the Privacy Policy.) Customer may provide legal notices to GuardianUI by email to support@guardianui.com, with a duplicate copy sent via registered mail, return receipt requested, to the following address: GuardianUI, LLC., …….., or such other address as GuardianUI may direct from time to time on the Site. Customer must specify in all such notices that the notice is being given under this Agreement.
The parties expressly understand and agree that their relationship is that of independent contractors. Nothing in this Agreement shall constitute one party as an employee, agent, joint venture partner or servant of another.
GuardianUI shall have no liability to Customer, Authorized Users or third parties for any failure or delay in performing any obligation under this Agreement due to circumstances beyond its reasonable control, including without limitation acts of God or nature, fires, floods, strikes, civil disturbances or terrorism or interruptions in power, communications, satellites, the Internet or any other network that are beyond its reasonable control.
This Agreement will be interpreted, construed and enforced in all respects in accordance with the laws of the State of Delaware, without reference to its choice of law principles.
This Agreement, inclusive of the Subscription and Privacy Policy, is the complete and exclusive statement of the agreement between the parties and supersedes all proposals, oral or written, and all other communications between the parties relating to the subject matter of this Agreement. In the event any information posted on the Site from time to time conflicts with any provision of this Agreement, the applicable provision of this Agreement shall control. Any terms and conditions of any other instrument issued by Customer in connection with this Agreement which are in addition to, inconsistent with or different from the terms and conditions of this Agreement shall be of no force or effect. Any affiliate of Customer shall be deemed a third party for purposes of this Agreement. This Agreement may be modified only by a written instrument duly executed by authorized representatives of the parties. Any waiver by either party of any condition, term or provision of this Agreement shall not be construed as a waiver of any other condition, term or provision. If any provision of this Agreement is held invalid or unenforceable, the remainder of the Agreement shall continue in full force and effect.
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