Platform Services Agreement
Last updated: September 11, 2022
IMPORTANT NOTICE: THIS PLATFORM SERVICES AGREEMENT (the “AGREEMENT”) CONTAINS A BINDING ARBITRATION PROVISION AND WAIVER OF JURY TRIALS AND CLASS ACTIONS GOVERNING DISPUTES ARISING FROM USE OF THE SERVICES. IT AFFECTS YOUR LEGAL RIGHTS AS DETAILED IN THE MANDATORY ARBITRATION AND WAIVER OF CLASS ACTION SECTION BELOW. PLEASE READ CAREFULLY.
The Dynaboard Platform allows developer users to create web applications. This Agreement is a binding contract between you ("Customer") and Dynaboard ("Dynaboard"). This Agreement governs Customer’s access to and use of the Dynaboard platform website and infrastructure (the "Platform") and any and all services made available to Customer by Dynaboard via the Platform (the "Services").
Together with this Dynaboard Platform Services Agreement, the Agreement consists of (1) Dynaboard’s Acceptable Use Policy (the "AUP"), which may be updated by Dynaboard from time to time as set forth in Section 12 below.
THIS AGREEMENT TAKES EFFECT BY CLICKING ON THE "ACCEPT" BUTTON TO ACCEPT THESE TERMS OR BY ACCESSING OR USING THE SERVICES (the " Effective Date"). BY CLICKING ON THE "ACCEPT" BUTTON OR BY ACCESSING OR USING THE SERVICES CUSTOMER (A) ACKNOWLEDGES THAT CUSTOMER HAS READ AND UNDERSTANDS THIS AGREEMENT; (B) REPRESENTS AND WARRANTS THAT CUSTOMER HAS THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND, IF ENTERING INTO THIS AGREEMENT FOR AN ORGANIZATION, THAT CUSTOMER HAS THE LEGAL AUTHORITY TO BIND THAT ORGANIZATION; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT CUSTOMER IS LEGALLY BOUND BY ITS TERMS.
IF CUSTOMER DOES NOT AGREE TO THIS AGREEMENT, PLEASE SELECT THE CLOSE BUTTON IN THE TOP RIGHT CORNER OF THIS WINDOW. IF CUSTOMER DOES NOT ACCEPT THIS AGREEMENT, CUSTOMER MAY NOT ACCESS OR USE THE SERVICES.
- “Affiliate” of a Party means any entity that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such Party. For purposes of this definition, the “control” of an entity means the direct or indirect ownership or control of more than 50% of the voting interests of such entity.
- “Authentication Key” means any access key, application key or authentication key necessary for utilizing an Authorized API.
- “Authorized API” means the application programming interfaces developed and enabled by Dynaboard that permit Customer to access certain functionality provided by the Services.
"Authorized User" means Customer and Customer's employees, consultants, contractors, and agents
- (i) who are authorized by Customer to access and use the Platform Services under the rights granted to Customer pursuant to this Agreement and
- (ii) for whom access to the Platform Services has been purchased hereunder.
- “Background IP” means any intellectual property, materials and other content that Dynaboard provides to Customer in connection with its performance of Professional Services that (i) was in existence prior to performance of Dynaboard’s Professional Services obligations set forth in the applicable Order Form, (ii) is conceived or developed at any time wholly independently of such Professional Services, or (iii) was otherwise not specifically created for Customer.
- “Beta Services” means the features and/or functionality of the Services that may be made available to Customer to try at its option at no additional charge and which are clearly designated as beta, pilot, limited release, non-production, early access, evaluation, labs or by a similar description.
- "Business Data" means information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Consumer User through the Customer Web Application hosted on the Platform Services.
- "Consumer User" means the customers or users of the Customer Web Application.
- "Customer Data" means, other than Usage Information, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or any other Authorized User through the Platform Services.
- "Customer Web Application(s)" means the web applications created by Customer, using the Dynaboard Platform Services, for the benefit and use of Consumer Users.
- "Documentation" means Dynaboard's user manuals, handbooks, and guides relating to the Platform Services made generally available by Dynaboard to its customers, either electronically or in hard copy form, which relate to the Platform Services and are available at https://dynaboard.com/.
- "Dynaboard IP" means the Platform Services, the Documentation, the Background IP, and all intellectual property provided to Customer or any other Authorized User in connection with the foregoing. For the avoidance of doubt, Dynaboard IP includes Usage Information and any information, data, or other content derived from Dynaboard's monitoring of Customer's access to or use of the Platform Services, but does not include Customer Data or Business Data.
- “Order Form” means an ordering document for Services that has been executed hereunder by the Parties (or, in the case of an online transaction, which has been electronically accepted by Customer).
- "Platform Services" means the software and software services provided by Dynaboard under this Agreement and the applicable Order Form that are detailed on Dynaboard's website available at https://dynaboard.com/, including (i) the web and other user interfaces, applications, and software provided to Authorized Users, (ii) the Authorized APIs, (iii) all downloadable software provided by Dynaboard (e.g., mobile and desktop applications), and (iii) any modifications, updates, derivative works, optional modules, custom or standard enhancements, updates, and upgrades to or of any of the foregoing.
- “Personal Data” means any information relating to an identified or identifiable natural person (‘data subject’) where an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as name, an identification number, location data, an online identifier or to one or more factors specific to their physical, physiological, mental, economic, cultural or social identity of that natural person.
- “Processing/to Process/Processed” means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, or erasure or destruction.
- “Professional Services” means fee-based setup, implementation, configuration, consulting, training, content development and other services (other than the Platform Services) that Dynaboard provides pursuant to an Order Form and which is detailed in an attached statement of work.
- “Services” means the Platform Services and Professional Services.
- “Subprocessor” means any third-party data processor engaged by Dynaboard, including Dynaboard’s Affiliates, that receive Customer Data from Dynaboard for Processing on behalf of Customer and in accordance with Customer’s instructions (as communicated by Dynaboard) and the terms of its written subcontract.
- “Subscription Term” means the subscription period set forth in the applicable Order Form during which Dynaboard agrees to provide the Platform Services to Customer.
- "Third Party Products" means any products, content, services, information, websites, or other materials that are owned and provided to Customer by third parties that are integrated with the Platform Services or a Customer Web Application.
- Platform Services.
- Provision of Platform Services. Subject to and conditioned on Customer’s payment of Fees and compliance with all other terms and conditions of this Agreement and the applicable Order Form(s), Dynaboard hereby grants Customer a revocable, non-exclusive, non-transferable, non-sublicensable, limited right to access and use the Platform Services during the Subscription Term solely for Customer’s internal business operations by Authorized Users in accordance with the terms and conditions herein. Dynaboard shall provide Customer the necessary passwords and access credentials to allow Customer to access the Platform Services. Dynaboard grants Customer a non-transferable, non-exclusive, non-assignable, limited right for Authorized Users to use downloadable software Dynaboard provides to Customer as part of the Platform Services.
- Order Forms. Each Order Form for Platform Services will describe additional mutually agreed-upon limitations on use of the Platform Services, including, to the extent applicable, Fees, the Subscription Term, and the permitted scope of use of the Platform Services.
- Platform Guidelines. Customer hereby acknowledges that it will at all times comply with, and ensure that all of its Authorized Users comply with, the platform guidelines set forth on Exhibit A, which are hereby incorporated by reference (the “Platform Guidelines”).
- Free Plans. Dynaboard offers a free plan at Dynaboard’s sole discretion (“Free Plan”). Dynaboard may change the terms and conditions applicable to the Free Plan or discontinue offering the Free Plan at any time. Dynaboard reserves the right to disable or remove any project or website deployment on the Free Plan with or without notice at Dynaboard’s sole discretion. Dynaboard may shut down and terminate projects or deployments using the Free Plan without notice, and Dynaboard has the right to delete Customer Data, Business Data and/or a Customer's or Authorized User's account (which may also result in the deletion of associated Customer Data and/or Business Data) under a Free Plan if Dynaboard reasonably determines that such Customer and/or Authorized Users overload the Platform, store illegal or copyrighted data, or otherwise violates the Acceptable Use Policy. Either Dynaboard or a Customer under a Free Plan may terminate this Agreement for convenience by providing written notice to the other party. In addition, Dynaboard shall have the right but not the obligation to indemnify, defend or hold Customer harmless for Third-Party Claims pursuant to Section 9(a). To the extent of a conflict between this Section 2(a)(iv) and any other provision of this Agreement, this Section 2(a)(iv) will govern with respect to Free Plans.
- Professional Services.
- Scope. Dynaboard will perform the Professional Services set forth in an Order Form, which shall include and/or specify a description of the Professional Services to be provided to Customer and the applicable fees and payment terms. If either Customer or Dynaboard request a change in the scope of Professional Services, any agreed-upon changes, including changes in Fees and expenses, will not be binding against either Party unless set forth in a writing executed by the Parties (each, a “Change Order”).
- Background IP. Dynaboard hereby grants to Customer a non-sublicensable, non-transferable, non-exclusive license during the term of this Agreement to access and use the Background IP, if any, that is included in a Professional Services deliverable (“Professional Services Deliverable”) solely as necessary for Customer to use that Professional Services Deliverable in connection with Customer’s permitted use of the Platform Services; it being understood that the foregoing license does not permit Customer to exploit any Background IP apart from the specific Professional Services Deliverable in which it is included.
- Customer Cooperation. Customer acknowledges that Dynaboard’s ability to timely deliver the Services is dependent upon Customer’s ongoing cooperation and assistance. Accordingly, Customer will supply to Dynaboard, on a timely basis, all information, materials, system access, and assistance reasonably necessary for Dynaboard to perform the Services, including the Customer Data, Authorized User lists, and any additional information, material, or assistance identified in an Order Form. Customer will also appoint and actively manage the key roles identified in the statement of work relating to such Order Form. Dynaboard’s period of performance shall be equitably extended to account for any delays resulting from Customer’s failure to fully comply with the foregoing.
- Staffing. Dynaboard shall be responsible for staffing decisions with respect to employees or contractors utilized in the performance of any Service under this Agreement, and shall have the right at any time to delegate, subcontract, remove or replace any of its personnel or contractors assigned to perform any Services under this Agreement. Dynaboard will be responsible for any breach of this Agreement by its employees and contractor personnel.
- Expense Reimbursements. Customer will reimburse Dynaboard for reasonable travel and other expenses incurred in connection with performing the Professional Services, provided that Customer approves such expenses before they are incurred.
3. Fees and Payment Terms
- Fees. Customer will pay Dynaboard all fees specified in or otherwise incurred pursuant to an Order (“Fees”) in accordance with this Section 3 and the applicable Order. Fees are quoted and payable in United States dollars. Payment obligations are non-cancelable and Fees paid are non-refundable, except as otherwise expressly set forth in this Agreement. Dynaboard will provide Customer with at least thirty (30) days’ advance written notice of any price increases applicable to the Services being used by Customer, and such price increases shall be effective at the start of the next Subscription Term.
- Invoices and Payment. By providing a credit card or other payment method accepted by Dynaboard (“Payment Method”) for the Services, Customer agrees that Dynaboard is authorized to charge the elected Payment Method on a recurring basis for all applicable Fees when due, and any other charges Customer may incur in connection with Customer’s use of the Services. For all purchased Services, the Payment Method will be charged on a monthly basis or at the interval indicated in the applicable Order. In addition, Customer shall reimburse Dynaboard for all chargebacks and fees for declined or disputed transactions charged to Dynaboard by its third party payment processor. If Dynaboard does not collect a Payment Method from Customer at the time of purchase, Dynaboard will invoice Customer for the charges at the email address on file with Dynaboard. Customer will pay all invoiced amounts within thirty (30) calendar days of the invoice date. Overdue invoices are subject to a finance charge of 1.5% per month or the maximum permitted by law, whichever is lower, plus all expenses of collection.
- Taxes. Customer is solely responsible for the payment of all taxes, assessments, tariffs, duties, or other fees imposed, assessed, or collected by or under the authority of any governmental body arising from Dynaboard’s provision of the Services hereunder (collectively, “Taxes”), except any taxes assessed upon Dynaboard’s net income. Unless otherwise stated, Dynaboard’s pricing policies and invoices do not include and are not discounted or enhanced for any such Taxes. If Dynaboard is required to directly pay Taxes related to Customer’s use or receipt of any Services, Customer agrees to promptly reimburse Dynaboard for any amounts paid by Dynaboard. Customer shall provide Dynaboard with all reasonable information and documentation requested by Dynaboard regarding the taxes which are or were due (or which may be due) under this Agreement.
- Credits. Dynaboard may, at its sole discretion, choose to offer credits for the Services in various ways, including but not limited to, coupons, promotional campaigns, prepaid credits and discretionary customer service fee adjustments. Dynaboard reserves the right to award credits at its sole discretion. Credits have no monetary or cash value, can only be used by Customer to offset Customer’s subsequent payments of Fees for the Services, and are revocable or subject to early expiration at any time and for any reason or no reason by Dynaboard, including for abuse, misrepresentation of account information, unauthorized transfer, or illegal conduct. Credits may only be applied to Fees due for the Services specifically identified by Dynaboard when issuing the credit and may be subject to other disclosures, terms and conditions presented to Customer at the time the Credit is issued. Credits can only be used by Customer and are non-transferable. Unless the instrument (including any coupon) states an earlier expiration date, credits shall expire and no longer be redeemable twelve (12) months from the date the credit was issued.
4. Confidential Information
From time to time during the Term, Dynaboard and Customer may disclose or make available to the other party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, and whether or not marked, designated, or otherwise identified as "confidential" at the time of disclosure (collectively, " Confidential Information"). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving party; (c) rightfully obtained by the receiving party on a non-confidential basis from a third party; or (d) independently developed by the receiving party without use of the Confidential Information. The receiving party shall not disclose the disclosing party's Confidential Information to any person or entity, except to the receiving party's employees, agents, or subcontractors who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder and who are required to protect the Confidential Information in a manner no less stringent than required under this Agreement. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (i) to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order shall first have given written notice to the other party and made a reasonable effort to obtain a protective order; or (ii) to establish a party's rights under this Agreement, including to make required court filings. Each party's obligations of non-disclosure with regard to Confidential Information are effective as of the date such Confidential Information is first disclosed to the receiving party and will expire three years after the expiration or termination of this Agreement; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
5. Data Privacy and Security
- Global Data Processing Addendum (“DPA”). Dynaboard’s DPA Data Processing can be executed by emailing Dynaboard at firstname.lastname@example.org and a pre-signed DPA will be provided to Customer. To be effective, Customer must sign the DPA and email the fully executed copy to email@example.com for the DPA to be incorporated by reference herein and become a part of this Agreement.
- Hosting and Processing. Unless otherwise specifically agreed to in writing by Dynaboard, Customer Data and Business Data may be hosted by Dynaboard or its Affiliates, or their respective authorized third-party service providers, in the United States, Canada, the European Economic Area (“EEA”) or the United Kingdom.
- Subprocessors. Customer acknowledges and agrees that Dynaboard may use Subprocessors, who may access Customer Data and Business Data, to provide, secure and improve the Services. Dynaboard shall be responsible for any breach of the DPA by its Subprocessors to the same extent that Dynaboard would be responsible if Dynaboard was performing the services of each Subprocessor directly under the terms of this Agreement. A list of all Subprocessors can be found here: https://dynaboard.com/docs/legal/3rd-party-subprocessors.
- Security. Dynaboard maintains a risk-based assessment security program. The framework for Dynaboard’s security program includes administrative, organizational, technical, and physical safeguards reasonably designed to protect the Services and confidentiality, integrity, and availability of Customer Data and Business Data. Dynaboard’s security program is intended to be appropriate to the nature of the Services and the size and complexity of Dynaboard’s business operations.
6. Intellectual Property
- Ownership. As between Customer and Dynaboard, (a) Dynaboard owns all right, title, and interest, including all intellectual property rights, in and to the Dynaboard IP and (b) Customer owns all right, title, and interest, including all intellectual property rights, in and to Customer Data.
- Feedback. If Customer or any of Customer’s employees, contractors, or agents sends or transmits any communications or materials to Dynaboard by mail, email, telephone, or otherwise, suggesting or recommending changes to the Platform Services, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like ("Feedback"), Dynaboard is granted a perpetual, unrestricted, irrevocable license to use such Feedback irrespective of any other obligation or limitation between Customer and Dynaboard governing such Feedback. All Feedback is and will be treated as non-confidential.
- License to Customer Data. Customer hereby grants to Dynaboard a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and Business Data and perform all acts with respect to the Customer Data and Business Data as may be necessary for Dynaboard to provide the Services to Customer.
7. Limited Warranty and Warranty Disclaimer
- Mutual Warranties. Each Party represents and warrants that it has the legal power and authority to enter into this Agreement.
- Customer Warranties. Customer represents, warrants and covenants, that at all times it (i) exclusively owns, or has all necessary rights and authorizations to process or otherwise use or handle Customer Data and Business Data, and (ii) will not use the Services for unlawful purposes or in a manner that infringes or otherwise violates the rights of any third party or the AUP.
- Dynaboard Warranties. Dynaboard warrants to Customer that the Professional Services shall be performed by Dynaboard in a professional and workmanlike manner, and the Platform Services purchased by Customer will, in all material respects, perform in accordance with the applicable portions of the Documentation. This warranty shall not apply to non-conformities, errors, or problems caused by acts within the control of Customer, any of its Authorized Users or any Consumer, or arising from Customer’s negligence or improper use of the Platform Services, from unauthorized modifications made to the Platform Services, from use of the Platform Services in an unsupported operating environment or manner, or that arises from Customer’s or any third party’s software or systems (including Third Party Products). To the maximum extent permitted under applicable law, Customer’s sole and exclusive remedy with respect to breach of the warranty set forth in this Section 7(c) shall be for Dynaboard to perform the Services again.
- Disclaimer. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN THIS SECTION 7, THE SERVICES ARE PROVIDED "AS IS" AND DYNABOARD SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. DYNABOARD SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. DYNABOARD MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON'S OR ENTITY'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OF CUSTOMER’S OR ANY THIRD PARTY'S SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
- Beta Services. Dynaboard may make Beta Services available to Customer at no charge, and Customer may choose to try such Beta Services in its sole discretion. Beta Services are intended for evaluation purposes and not for production use, are not supported, and may be subject to additional terms that will be presented to Customer. Beta Services are not considered “Services'' under this Agreement for purposes of Section 7(c) (Dynaboard Warranties) and Sections 8(a) (Dynaboard Indemnification); however, all restrictions, Dynaboard’s reservation of rights and Customer’s obligations concerning the Service, and use of any Third Party Products shall apply equally to Customer’s use of Beta Services. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date otherwise specified in writing by Dynaboard. Dynaboard may discontinue Beta Services at any time in its sole discretion and may never make them generally available. For the avoidance of doubt, Beta Services are Dynaboard’s Confidential Information and screenshots or other disclosure of the Beta Services is prohibited.
- Dynaboard Indemnification.
- Dynaboard shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees ("Losses"), incurred by Customer resulting from any third-party claim, suit, action, or proceeding ("Third-Party Claim") that the Platform Services, or any use of the Platform Services in accordance with this Agreement, infringes or misappropriates such third party's US intellectual property rights (an “Infringement Claim”), provided that Customer promptly notifies Dynaboard in writing of the Third-Party Claim, cooperates with Dynaboard, and allows Dynaboard sole authority to control the defense and settlement of such Third-Party Claim. Dynaboard shall have no liability for any Infringement Claim to the extent arising from (1) Customer’s use or supply to Dynaboard of any Customer Data or Business Data; (2) use of the Platform Services in combination with any software, hardware, network or system not supplied by Dynaboard, if the alleged infringement relates to such combination; (3) any modification or alteration of the Platform Services (other than by Dynaboard); or (4) Customer’s violation of applicable law or third party rights.
- Without limiting the foregoing, in the event that any portion of the Platform Services is likely to, in Dynaboard’s sole opinion, or does become the subject of a Third Party Claim, Dynaboard may, at its option and expense: (i) procure for Customer the right to continue using the allegedly infringing item, (ii) substitute a functionally equivalent non-infringing replacement for such item, or (iii) modify such item to make it non-infringing and functionally equivalent, or (iv) terminate the Agreement and any outstanding Order Forms and refund to Customer prepaid unused Fees for the infringing items.
- This Section 8(a) sets forth Customer’s sole remedy and our sole liability and obligation for any actual, threatened, or alleged Third-Party Claims that the Platform Services infringe, misappropriate, or otherwise violate any intellectual property rights of any third party.
- Customer Indemnification. Customer shall indemnify, hold harmless, and, at Dynaboard's option, defend Dynaboard and its officers, directors, employees, agents, Affiliates, successors, and assigns from and against any and all Losses arising from or relating to any Third-Party Claim (i) that the Customer Data or Business Data, or any use of the Customer Data or Business Data in accordance with this Agreement, infringes or misappropriates such third party's intellectual property rights; (ii) arising from Customer's or any Authorized User's negligence or willful misconduct; or (iii) arising from use of the Services in violation of the AUP, applicable laws or the Platform Guidelines; provided that Customer may not settle any Third-Party Claim against Dynaboard unless Dynaboard consents to such settlement, and further provided that Dynaboard will have the right, at its option, to control the defense of such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
9. Limitations of Liability
- IN NO EVENT WILL DYNABOARD BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, INTEGRITY, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER DYNABOARD WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.
- IN NO EVENT WILL DYNABOARD'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO DYNABOARD UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
10. Term and Termination
- Term. The term of this Agreement begins on the Effective Date and continues until terminated. Unless otherwise specified in the Order Form, Platform Services will automatically renew for the same period as the expiring Subscription Term unless either party gives the other party written notice opting out of such renewal at least 1 day prior to the expiration of the then-current Subscription Term.
Termination. In addition to any other express termination right set forth in this Agreement:
- Dynaboard may terminate this Agreement, effective on written notice to Customer, if Customer is in breach of the AUP, have provided Dynaboard with fraudulent payment information or have circumvented or attempted to circumvent Dynaboard’s security measures.
- either party may terminate this Agreement, effective on written notice to the other party, if the other party breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured 30 days after the non-breaching party provides the breaching party with written notice of such breach; or
- either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
- Effect of Termination. Upon termination of this Agreement, Customer shall immediately discontinue use of the Dynaboard IP. No expiration or termination of this Agreement will affect Customer's obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund. In the event of termination of this Agreement, upon Customer’s written request made within thirty (30) days after the effective date of termination, Dynaboard shall make the Customer’s project source code, Customer Data, Business Data and stored log information for the Consumer User use of the applicable Customer Web Applications (“Exported Data”), in the format stored by the Platform Service, available to Customer for thirty (30) days from the date such written request is received, during which time Customer shall be solely responsible for retrieving the Exported Data. After such thirty (30) day period, Dynaboard shall have no obligation to maintain or provide any Exported Data and shall thereafter, unless legally prohibited, delete all Exported Data in its possession.
- Survival. Sections 1, 2(a)(iii), 3, 4, 6, 7, 8, 9, 10(c), 10(d) and 11, and any right, obligation, or required performance of the parties in this Agreement which, by its express terms or nature and context is intended to survive termination of this Agreement, will survive any such termination.
- Relationship. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties, and Dynaboard will be considered an independent contractor when performing any Services hereunder.
- Customer Affiliates. An Affiliate of Customer may purchase Services subject to the terms of this Agreement by executing Order Forms with Dynaboard hereunder. By entering into an Order Form hereunder, the Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
- Notice to California Residents. If Customer is a California resident, under California Civil Code Section 1789.3, Customer may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite N 112, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint or to receive further information regarding use of the Services.
- Entire Understanding. This Agreement (including the DPA and all Exhibits and Order Forms, which are incorporated herein by reference) constitutes the entire agreement between the Parties as to its subject matter, and supersedes all prior proposals, marketing materials, negotiations and other written or oral communications between the Parties with respect to the subject matter of this Agreement. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any Order Form, the terms of such Order Form shall prevail. Notwithstanding any language to the contrary therein, all terms and conditions stated in any Customer purchase order or in any other ordering documentation (excluding Order Forms) are hereby rejected. Such terms will not be deemed incorporated into or form any part of this Agreement, and all such terms or conditions are null and void.
- Modification; Waiver. Except for Dynaboard’s modification or update of the Documentation or the Service, or any policies as necessary to comply with applicable law, rules, regulations, no modification of this Agreement legally binding against the other Party unless in writing and signed or electronically accepted by both Parties. Notwithstanding the foregoing, (i) updates to this Agreement which are not a result of a changes to Dynaboard’s hosting provider’s services or their terms and conditions will take effect at the start of the next billing cycle, (ii) updates to this Agreement which do result from changes to Dynaboard’s hosting provider’s services or their terms and conditions shall take effect immediately, and (iii) updates to the AUP will take effect immediately. In case of updates that take effect immediately (clauses (ii) and (iii)) and which adversely affect Customer’s then-current use of the Services, Customer may terminate this Agreement and Customer’s use of the Service by providing written notice to Dynaboard within thirty (30) days of the update. The failure of any Party in any one or more instances to insist upon strict performance of any terms or provisions of this Agreement, the DPA or any Order Form, or to exercise any option or remedy which is conferred in this Agreement, the DPA or any Order Form, shall not be construed as a waiver, or relinquishment to any extent of the right to assert or rely upon any such terms, provisions, options, or remedies on any future occasion. No waiver by either Party hereunder shall be effective unless agreed to pursuant to a writing signed by a duly authorized representative of the Party granting the waiver.
Mandatory Arbitration, Waiver of Class Actions. PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS CUSTOMER’S LEGAL RIGHTS, INCLUDING CUSTOMER’S RIGHT TO FILE A LAWSUIT IN COURT.
- Customer agrees that this Agreement affects interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions. This Section 11(f) is intended to be interpreted broadly and governs any and all disputes between Customer and Dynaboard including but not limited to claims arising out of or relating to any aspect of the relationship between Customer and Dynaboard, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory; claims that arose before this Agreement or any prior; and claims that may arise after the termination of this Agreement. The only disputes excluded from this broad prohibition are the litigation of certain intellectual property as provided below.
- Initial Dispute Resolution. Most disputes can be resolved without resort to arbitration. If Customer has any dispute with Dynaboard, Customer agrees that before taking any formal action Customer will contact Dynaboard at firstname.lastname@example.org and provide a brief, written description of the dispute and Customer’s contact information (including Customer’s username, if Customer’s dispute relates to an account on the Platform Services). Except for intellectual property, Customer and Dynaboard agree to use reasonable efforts to settle any dispute, claim, question, or disagreement directly through consultation with Dynaboard, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration.
- Binding Arbitration. If the parties do not reach an agreed-upon solution within a period of thirty (30) days from the time informal dispute resolution is initiated under the Initial Dispute Resolution provision above, then either party may initiate binding arbitration as the sole means to resolve claims (except as provided below) subject to this Agreement as set forth below. Specifically, all claims arising out of or relating to this Agreement, the parties' relationship with each other, and/or Customer’s use of the Services shall be finally settled by binding arbitration administered by JAMS in accordance with the JAMS Streamlined Arbitration Procedure Rules for claims that do not exceed $250,000 and the JAMS Comprehensive Arbitration Rules and Procedures for claims exceeding $250,000 in effect at the time the arbitration is initiated, excluding any rules or procedures governing or permitting class actions.
- Arbitrator’s Powers. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of this Agreement, including but not limited to any claim that all or any part of this Agreement is void or voidable, whether a claim is subject to arbitration or the question of waiver by litigation conduct. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator's award shall be written and shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction.
- Filing a Demand. To start an arbitration, Customer must do the following: (a) Write a Demand for Arbitration that includes a description of the claim and the amount of damages Customer seeks to recover (Customer may find a copy of a Demand for Arbitration at www.jamsadr.com); (b) Send three copies of the Demand for Arbitration, plus the appropriate filing fee, to JAMS, Two Embarcadero Center, Suite 1500, San Francisco California 94111; and (c) send one copy of the Demand for Arbitration to Dynaboard at: email@example.com.
- Fees & Costs. If Customer’s claim(s) total is less than US $5,000.00, then: (a) Customer may choose whether Customer’s participation in the arbitration will be conducted on the basis of documents provided to the arbitrator, through a telephonic hearing or by an in-person hearing; (b) Dynaboard will reimburse Customer’s filing fees up to a maximum of US $1,500.00 unless the arbitrator determines that Customer’s claims are frivolous; and (c) Dynaboard will not seek attorney’s fees and costs, unless the arbitrator determines that Customer’s claims are frivolous. Customer is responsible for Customer’s own attorneys' fees unless the arbitration rules and/or applicable law provide otherwise.
- No Jury Trial. The parties understand that, absent this mandatory arbitration section, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
- Venue. Arbitration shall be initiated and take place in San Francisco, California, United States, and Customer and Dynaboard agree to submit to the personal jurisdiction of any federal or state court in San Francisco, California in order to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
- Class Action Waiver. The parties further agree that the arbitration shall be conducted in the party’s respective individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. CUSTOMER AND DYNABOARD AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
- Exception: Litigation of Intellectual Property. Notwithstanding the parties' decision to resolve all disputes through arbitration, either party may bring enforcement actions, validity determinations, or claims arising from or relating to theft, piracy, or unauthorized use of intellectual property in any state, or federal court or other governing body or authority with lawful jurisdiction for such disputes, or in the U.S. Patent and Trademark Office to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights).
- Survival. This Mandatory Arbitration, Waiver of Class Actions section shall survive any termination of Customer’s use of the Site or information Dynaboard supplies.
- Governing Law & Venue. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of California, U.S.A, without reference to its choice of law rules to the contrary. Notwithstanding Customer and Dynaboard’s agreement to mandatory arbitration, either party may seek any interim or preliminary injunctive relief from a court of competent jurisdiction in San Francisco, CA, as necessary to protect the party's rights or property pending the completion of arbitration. Customer and Dynaboard submit to the exclusive jurisdiction of, and venue in, any federal or state court of competent jurisdiction located in San Francisco, California, U.S.A.
- Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other Party; provided, however, Dynaboard may assign this Agreement in its entirety, together with all rights and obligations hereunder, without consent of the other Party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets related to this Agreement. Any attempt by a Party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
- Publicity. Any press release developed by a party regarding this Agreement shall be subject to the prior written consent of the other party, which shall not be unreasonably withheld. Dynaboard may identify Customer as a user of the Services by referencing Customer’s name and logo, provided that Dynaboard will cease making such references after receiving written notice from Customer to do so.
- Notices. Except for notification methods expressly permitted under the Platform Guidelines, all notices under this Agreement to Customer shall be in writing and shall be delivered to the addresses first set forth in the Order Form(s). Notices to Dynaboard shall be addressed to: Dynaboard, Attn: Legal Department, 548 Market Street, Unit 58073, San Francisco, CA 94104, with a copy to firstname.lastname@example.org. Either Party may change its address for notice by giving notice of such address change in the manner provided herein. All communications and notices to be made or given pursuant to this Agreement shall be in the English language.
- Anti-Corruption. Customer acknowledges and agrees that it has not received or been offered any illegal bribe, kickback, payment, gift or thing of value from any Dynaboard employees, agent or representative in connection with this Agreement, other than reasonable gifts and entertainment provided in the ordinary course of business. Customer will promptly notify Dynaboard if it offers or receives any such improper payment or transfer in connection with this Agreement.
- Export Control. The Services are subject to the trade and economic sanctions maintained by the Office of Foreign Assets Control (“OFAC”). By accessing the Services, Customer agrees to comply with these laws and regulations. Specifically, Customer represents and warrants that it is not (a) located in any country that is subject to OFAC’s trade and economic sanctions, currently Cuba, Iran, North Korea, Syria, and the Crimea region of the Ukraine; or (b) an individual or entity included on any U.S. lists of prohibited parties including: the Treasury Department’s List of Specially Designated Nationals List (“SDN List”) and Sectoral Sanctions List (“SSI List”). Additionally, Customer agrees not to – directly or indirectly – sell, export, reexport, transfer, divert, or otherwise dispose of the Services in contradiction with these laws and regulations. Failure to comply with these laws and regulations may result in the suspension or termination of Customer’s account. Customer agrees to comply with all applicable export and import control laws and regulations in connection with its use of the Services, and, in particular, Customer will not utilize the Services to export or re-export data or software without all required United States and foreign government licenses. Customer assumes full legal responsibility for any access and use of the Services from outside the United States, with full understanding that such access or use may constitute export of technology and technical data that may implicate export regulations and/or require export license.
- Government Use. Dynaboard provides the Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under this Agreement, then it must negotiate with Dynaboard to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
- Force Majeure. Except for performance of a payment obligation, neither Party shall be liable under this Agreement for delays, failures to perform, damages, losses or destruction, or malfunction of any equipment, or any consequence thereof, caused or occasioned by, or due to fire, earthquake, flood, water, the elements, labor disputes or shortages, utility curtailments, power failures, explosions, civil disturbances, governmental actions, epidemics, shortages of equipment or supplies, unavailability of transportation, acts or omissions of third parties, or any other cause beyond its reasonable control. In the event any of the foregoing events results in Dynaboard not being able to provide the Services for a period of more than thirty (30) days, then either Party may terminate the Agreement upon written notice to the other Party.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
Exhibit A — Platform Guidelines
- The Platform Services can only be accessed after the creation of an account with Dynaboard (“Account”). Customer may create an Account by providing Dynaboard with certain information, including contact information, log-in credentials, payment, and billing sources (collectively “Registration Information”) and after authentication by Dynaboard. Customer agrees that it shall update and ensure that its Registration Information is current and accurate at all times. Customer shall not disclose, transfer, license, or otherwise share any Account authentication information without Dynaboard’s prior written consent in each instance. Customer is solely responsible for ensuring the security and confidentiality of all Registration Information and shall utilize proper security protocols, such as setting strong passwords and access control mechanisms, safeguarding access to all logins and passwords, and verifying the trustworthiness of persons who are entrusted with account access information. Customer must notify Dynaboard immediately of any unauthorized access of its Registration Information or Account upon becoming aware of it. In addition, as between Customer and Dynaboard, Customer is solely responsible for (i) making Authorized Users aware of the terms and conditions set forth in this Agreement, (ii) managing which Authorized Users have access to such Customer Data, (iii) any actions taken by such Authorized Users with respect to such Account and Customer Data, and any act or omission by a Authorized that would constitute a breach of this Agreement, (iv) managing which Consumer Users have access to the Customer Web Applications and Business Data, and (v) any actions taken by Consumer Users with respect to the Customer Web Applications (including the Platform Services provided in response to such actions), and any act or omission taken by a Consumer User that would constitute a breach of this Agreement.
- Except for uses that are expressly permitted by Dynaboard (for example, in the Documentation or in an Order Form), Customer will not, and shall ensure that Authorized Users and Consumer Users do not: (i) sell, resell, rent, lease, lend, license, sublicense, assign, publish, transfer, distribute or otherwise make available any portion of the Dynaboard IP; (ii) use the Platform Services other than in accordance with the Documentation or in a manner that interferes with, unduly burdens, or disrupts the integrity, performance, or availability of the Dynaboard Services (for example, by conducting load tests or penetration tests without Dynaboard’s prior written consent); (iii) attempt to gain unauthorized access to the Dynaboard Services or to Dynaboard’s or its third party suppliers’ related systems or networks; (iv) access any portion of the Dynaboard Services for the purpose of building a similar or competitive product or service, or monitor the Dynaboard Services for any benchmarking or competitive purpose; (v) introduce, disseminate, or otherwise enable any viruses, Trojan horses, spyware, worms, malware, spam, or malicious code using the Dynaboard Services; (vi) copy, modify, translate, or create a derivative work of any Dynaboard Property; (vii) reverse engineer, disassemble, or decompile any software included in the Dynaboard Property, except to the extent such restrictions are prohibited under applicable law; (viii) submit any sensitive personal data or information (including government issued identification numbers, financial account information, payment card information, and personal health information) to the Dynaboard Services (including to a Consumer Web Application); (ix) attempt to probe, scan, or test the vulnerability of the Dynaboard Services or breach any security or authentication measures; (x) send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation; (xi) impersonate or misrepresent Customer’s affiliation with any person or entity; (xii) use the Dynaboard Services in connection with any Customer Data or Consumer Data in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person; (xiii) alter, remove or violate any copyright or other intellectual property notice appearing in connection with the Dynaboard Services; (xiv) use the Dynaboard Services (including in connection with any Customer Data or Business Data) that violates applicable law; (xv) scrapes or crawls third party websites without authorization; (xvi) access the Dynaboard Services if it is a direct competitor of Dynaboard, except with Dynaboard’s prior written consent, or (xvii) use Platform Services for any unlawful, fraudulent, offensive, or obscene activity or for any uses otherwise prohibited by the AUP.
- Customer is responsible for properly configuring and using the Platform Services and taking its own steps to maintain appropriate security, protection and backup of the Customer Data, Customer Web Applications and Business Data, which may include the use of encryption technology to protect Customer Data and Business Data from unauthorized access and routine archiving of such data. In the event Customer discovers that the Business Data collected by Customer has been breached, compromised, or inadvertently exposed to non-authorized third parties, Customer shall notify Dynaboard promptly of such a breach or exposure including the root cause, remediation steps, and compensating controls to ensure such a breach does not occur in the future. Customer is solely responsible for the integrity, preservation and backup of the Customer Data and Business Data, regardless of whether its use of Platform Services includes a backup feature or functionality, and to the fullest extent permitted by law, Dynaboard shall have no liability to Customer or any Consumer User for any data loss, unavailability, or other consequences related to the foregoing. Customer shall be solely responsible and liable for the activities of any individual or entity who gains access to Customer Data, Business Data or the Platform Services as a result of Customer’s failure to comply with the obligations of this subsection.
- Customer shall use the Authorized APIs in accordance with the Documentation, and will promptly correct any usage of Authorized APIs that does not comply with the Documentation. Authentication Keys must be restricted to use by authorized personnel of Customer who have a need to use it for purposes of integrating the Platform Services with other web applications. Customer is solely responsible for maintaining the security of all Authentication Keys and for all activities that occur using any Authentication Key issued to Customer and must promptly notify Dynaboard of any unauthorized use. The Authentication Keys are the property of Dynaboard and may be revoked by Dynaboard in connection with any permitted suspension of Customer’s right to use an Authorized API. In addition, Customer shall be responsible for all activities that occur on API endpoints it develops for its Customer Web Applications and all charges incurred to Dynaboard based on the usage of such API endpoints by Consumer Users.
- A high-speed Internet connection is required for proper transmission of the Platform Services. Customer responsible for procuring and maintaining the network connections that connect Customer’s network to the Platform Services, including, but not limited to, “browser” software that supports protocols used by Dynaboard, including Secure Socket Layer (SSL) protocol or other protocols accepted by Dynaboard, and to follow procedures for accessing services that support such protocols. Dynaboard is not responsible for notifying Customer or its Authorized Users of any upgrades, fixes or enhancements to any such software or for any compromise of data, including Customer Data and Business Data, transmitted across computer networks or telecommunications facilities (including but not limited to the Internet) which are not owned, operated or controlled by Dynaboard. Dynaboard assumes no responsibility for the reliability or performance of any connections as described in this section.
- Dynaboard will process and investigate proper notices of alleged copyright or other intellectual property infringement related to material submitted through Customer’s account, and will respond appropriately, following the guidelines of the Online Copyright Infringement Liability Limitation Act and other applicable intellectual property laws.
- Dynaboard reserves the right, but has no obligation, to monitor the use of the Platform Services, Customer Data and Business Data and make modifications to the features and functionality of the Platform Services during the Term to (i) respond to any applicable law, regulation, legal process or governmental request; (ii) enforce this Agreement, including investigation of potential violations hereof; (iii) detect, prevent, or otherwise address fraud, security or technical issues; (iv) respond to user support requests; or (v) protect the rights, property or safety of Dynaboard, Dynaboard’s users and the public.
- Notwithstanding anything herein to the contrary in this Agreement, Dynaboard may temporarily suspend Customer's and any other Authorized User's access to any portion or all of the Platform Services (which may also affect Consumer User's access to Customer Web Application) if: (i) Dynaboard reasonably determines that (A) there is a threat or attack on any of the Dynaboard IP; (B) Customer's or any other Authorized User's use of the Dynaboard IP disrupts or poses a security risk to the Dynaboard IP or to any other customer or vendor of Dynaboard; (C) Customer or any other Authorized User is using the Dynaboard IP for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Dynaboard's provision of the Platform Services to Customer or any other Authorized User is prohibited by applicable law; (ii) any vendor of Dynaboard has suspended or terminated Dynaboard's access to or use of any third-party services or products required to enable Customer to access the Platform Services; or (iii) Customer’s payment obligations are more than thirty (30) days overdue (any such suspension described in subclause (i), (ii), or (iii), a " Service Suspension"). Dynaboard shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Platform Services following any Service Suspension. Dynaboard shall use commercially reasonable efforts to resume providing access to the Platform Services as soon as reasonably possible after the event giving rise to the Platform Services Suspension is cured. Dynaboard will have no liability for any damage, liabilities, losses (including any loss of or profits), or any other consequences that Customer or any other Authorized User may incur as a result of a Service Suspension, and Customer shall remain liable for the payment of all Fees.
- Notwithstanding the foregoing right for Dynaboard to suspend Customer’s or an Authorized User’s access to the Platform Services, Dynaboard will use commercially reasonable efforts to provide all plan levels with sufficient bandwidth, builds, and serverless function invocations that Dynaboard determines in good faith are typical of projects at that plan level. Dynaboard will notify Customer if its usage is unreasonable, and Dynaboard may shut down and terminate projects and Accounts that are creating an unreasonable burden on Dynaboard’s infrastructure and/or business operations.
- Customer acknowledges and agrees that the Platform Services are designed to serve as a tool or utility in which Authorized Users have broad discretion to process Customer Data and Business Data. Accordingly, unless and to the extent that an event is caused by Dynaboard’s failure to provide the Platform Services in accordance with its obligations under this Agreement, Customer is solely responsible and liable for all activities that are affiliated or associated with its Account, including without limitation: (i) the processing of all Customer Data and Business Data; (ii) any data processed by Customer or any Authorized User arising from or related to the Platform Services; (iii) and any data displayed, disclosed, generated, and/or published arising from or related to its use of the Platform Services (including a Consumer User’s use of a Consumer Web Application).
- Customer expressly grants Dynaboard the right to process Customer Data and Business Data: (i) as necessary to provide the Platform Services (including by disclosing such Customer Data and Business Data to third parties that support the provision of the Platform Services); or (ii) as otherwise expressly permitted by this Agreement. Customer is responsible for obtaining all necessary rights and consents (including such rights and consents for all Authorized Users and Consumer Users) for Dynaboard to Process Customer Data and Business Data for the purposes of providing the Platform Services and for meeting Dynaboard's obligations under this Agreement. In addition, Dynaboard may monitor Customer's use of the Platform Services and collect, and compile data and information related to Customer's use of the Platform Services to be used by Dynaboard in an aggregated and anonymized manner (“Usage Information”), including but not limited to compiling statistical and performance information related to the operation of the Platform Services, determining usage trends, performing analytics, improving the Platform Services, promoting and marketing the effectiveness of the Platform Services, or for any other ordinary business purpose. Customer agrees that Dynaboard may make Usage Information publicly available, provided that (i) such information does not incorporate any Customer Data or Business Data, and (ii) such use does not identify Customer, any Authorized Users or Consumer Users either directly or indirectly. Dynaboard retains all intellectual property rights in Usage Information. Dynaboard shall have no obligation or liability in connection with any use of Usage Information, unless, and to the extent, restricted by applicable law.
- Customer is solely responsible for obtaining and maintaining all rights, licenses, and credentials necessary to use Third Party Products. In addition, Customer is solely responsible for installing, operating, updating, or otherwise maintaining the operation of such Third Party Products. To the maximum extent permitted by applicable law, Dynaboard does not provide any warranties, guaranties or indemnification regarding any Third Party Products, whether or not such products or services are designated by Dynaboard as “certified,” “validated” or otherwise. Dynaboard does not have any responsibility or liability for any exchange of data or other interaction occurring directly between Customer, its Authorized Users or a Customer Web Application and any provider of a Third Party Product. If the availability of all or a portion of the Platform Services depends on the corresponding availability of Third Party Products, Dynaboard will not be liable to Customer if changes in Third Party Products cause the unavailability of all or a portion of the Platform Services. However, Dynaboard will use commercially reasonable efforts to update the Platform Services to ensure continued interoperation with such Third Party Products. Further, Customer acknowledges and agrees that if it gives a Third Party Product access to its Account, Customer shall serve as the controller of such information and the provider of the Third Party Product serves as the processor for purposes of those data laws and regulations that apply to Customer. In no case are such providers of Third Party Products Dynaboard’s Sub-processors.
- Dynaboard may now or in the future allow Customer to post or publish content on or upload content to forums used by other Dynaboard customers (e.g., a public Slack channel or a web forum (“Forum”), including but not limited to website templates created and contributed by Customer or its Authorized Users, blog or forum posts, images, and photos. Any content an Authorized User submits, posts, displays, or otherwise makes available on a Forum, including all intellectual property rights (defined below) therein, is referred to as “User Content.” Customer retains ownership of its User Content; provided, however, unless Customer expressly specifies the license type when posting User Content to a Forum, (x) all User Content that is software code shall be licensed by default under the Apache 2.0 license, and (y) all User Content that is not software code shall be licensed under the Attribution 4.0 International (CC BY 4.0) license. Dynaboard have no obligation to store, maintain, or provide Customer with a copy of User Content that Customer submits. As between Customer and Dynaboard, Customer shall be responsible for its User Content, including its compliance with applicable laws, non-infringement of third party intellectual property rights and any representations or warranties that Customer provides in connection with its submission of User Content.