Terms of Services
Last Modified on March 29, 2023
MASTER SUBSCRIPTION AGREEMENT
Thank you for your interest in the CoralTree Cloud Products, which include Basil, Qbox, CoraLegal, CADbox, and CoraSign. These products enable you to offer accounting, legal, or engineering services over the web (the “Service” or “Services”) and is owned and operated by CoralTree, Inc. (collectively “CoralTree”, “we”, “our”, or “us”). The terms “you”, “your”, and “yours” refer to anyone using the Service. The Services are the property of CoralTree Cloud Platform.
IMPORTANT – PLEASE READ CAREFULLY: THIS MASTER SUBSCRIPTION AGREEMENT (THE “AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR A SINGLE ENTITY) AND CORALTREE AND GOVERNS YOUR USE OF THE SERVICE. BY CLICKING ON THE “I ACCEPT” BUTTON OR OTHERWISE INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT TO CORALTREE’S SATISFACTION, YOU ARE (1) REPRESENTING THAT YOU ARE OVER THE AGE OF 18, (2) REPRESENTING THAT YOU HAVE THE RIGHT AND AUTHORITY TO LEGALLY BIND YOURSELF OR YOUR COMPANY, AS APPLICABLE, AND (3) CONSENTING TO BE LEGALLY BOUND BY ALL THE TERMS AND CONDITIONS OF THE AGREEMENT. IF YOU DO NOT AGREE TO ALL THESE TERMS AND CONDITIONS OR CANNOT MAKE SUCH REPRESENTATIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICE.
IF YOU AGREE TO THESE TERMS OF SERVICE ON BEHALF OF AN ENTITY, OR IN CONNECTION WITH PROVIDING OR RECEIVING SERVICES ON BEHALF OF AN ENTITY OR AGENCY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY OR AGENCY TO THESE TERMS OF SERVICE. IN THAT EVENT, “YOU,” “YOUR,” AND “YOURS” WILL REFER AND APPLY TO THAT AGENCY OR ENTITY.
This is a legal agreement between you and us for use of any of the Services. This Agreement applies to you, whether personally or on behalf of an entity, whether you visit our Website or use any of our Services. No agency, partnership, joint venture, employee-employer, or franchiser-franchisee relationship between you and us intended or created by this Agreement.
If you access the Services from the European Union, Asia, or any other region of the world with laws or other requirements governing personal data collection, use, or disclosures that differ from applicable laws in the United States, then through your continued use of the Services, you are transferring your data to the United States, and you expressly consent to have your data transferred to and processed in the United States.
Subject to the terms and conditions of this Agreement, CoralTree hereby provides you a limited, non-exclusive, non-transferable, and terminable license to access and use the Services solely for your benefit and internal business purposes. CoralTree shall host the Services and may update the functionality and user interface thereof from time to time in its sole discretion and in accordance with this Agreement. Subject to the limited rights expressly granted hereunder, CoralTree reserves all rights, title, and interest in and to the Services, including all related intellectual property rights. No rights are granted to you hereunder other than as expressly set forth herein.
The information accessed through our Services is not intended for viewing or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to any law or regulation or which would be subject us to any registration requirement within any such jurisdiction or country. Accordingly, individuals who choose to access the Services from other locations do so on their own initiative and are solely responsible for compliance with local laws, if and to the extent local laws are applicable.
We retain the right to refuse any and all current or future use of the Services, for any reason, at any time. Without limiting other remedies, we may immediately issue a warning, temporarily suspend, indefinitely suspend, or terminate your access and/or refuse to provide access to the Services to you if you breach any part of this Agreement, if we are unable to verify or authenticate any information you provide to us when creating your account, or if we believe that your actions are impermissible, inappropriate, or may create liability for us.
In order to access or use the Service, you will have to register and create a unique, password-protected account (“Account”). You agree to: (1) Provide true, accurate, current, and complete information as prompted by the registration form; and (2) Maintain and update such information to keep it true, accurate, current, and complete at all times. We reserve the right to delete your Account without warning if you are found to have misrepresented any of the registration information submitted. You are responsible for safeguarding your password and maintaining the confidentiality thereof and also for any actions under your password and Account, whether authorized by you or not. You agree to: (1) Immediately notify us of any unauthorized use of your password or account, or any other breach of security; and (2) Ensure that you exit from your account at the end of each session.
By creating an account and accessing the Services, you represent and warrant that: (1) All information you submit is and will be true, accurate, current, and complete; (2) You have the legal capacity to agree to this Agreement, and you agree to comply with this Agreement; (3) You are not under the age of 18, and you are not a minor in the jurisdiction in which you reside; or if you are under the age of 18 or are a minor, you have received parental permission to use the Services; (4) You will not access the Services through automated or non-human means, whether through a bot script or otherwise; (5) You will not use the Services for any illegal or unauthorized purpose; and (6) Your use of the Services will not violate any applicable law or regulation.
If you choose to register for the Services, you agree to provide and maintain true, accurate, current, and complete information about yourself as prompted by the Services’ registration form. You must not provide false or misleading information about your location, your business, your skills, or the services your business provides. If you provide any information that is untrue, inaccurate, not current, or incomplete, we have the right to suspend or terminate your account and refuse any and all current or future use of the Services (or any portion thereof). You must not register for more than one account without express written permission from us.
We do not request your feedback concerning the Services. Nonetheless, if you provide us with any feedback (including through any contact information available on the Website, Services, or public forums) concerning the Services, you also grant us and our successors a worldwide, non-exclusive, royalty-free, perpetual, and transferable license to use, copy, dispute, transmit, modify, prepare derivative works of such feedback, in any format and/or through any media channels, including incorporating such feedback on the Services.
By registering for a CoralTree account, or by clicking to accept this Agreement, you are deemed to have executed this Agreement electronically, effective on the date you register, pursuant to the U.S. Electronic Signatures in Global and National Commerce Act (the E-Sign Act) (15 U.S.C. §7001, et seq.), and to electronically receive and access, via email or via the Services, all records and notices for the Services provided to you under this Agreement that we would otherwise be required to provide to you in paper form. Your account registration continues an acknowledgement that you are able to electronically receive, download, and print this Agreement, and any amendments.
When you register for an Account and time to time thereafter, your Account will be subject to verification, including, but not limited to, validation against third-party databases, or the verification of one or more official government or legal documents that confirm your identity. You authorize us, directly or through third parties, to make any inquiries necessary to validate your identity and confirm your ownership of your email address or financial accounts, subject to applicable law. When requested, you must provide us with information about you and your business.
Although we may perform background checks of users, we cannot confirm that each user is who they claim to be, and therefore, we cannot and do not assume any responsibility for the accuracy or reliability of identity or background check information, or any information provided through the Services.
MODIFICATION OF SERVICES.
We reserve the right to modify or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice. You agree that we will not be liable to you or to any third-party for any modification, suspension, or discontinuance, of the Services.
GENERAL PRACTICES REGARDING USE AND STORAGE.
You acknowledge that we may establish general practices and limits concerning use of the Services, including, without limitation, the maximum period of time that data or other content will be retained by or on the Services, and the maximum storage space that will be allotted on our servers on your behalf.
You agree that we have no responsibility or liability for the deletion or failure to store any data or other content maintained or uploaded by or on the Services. You acknowledge that we reserve the right to terminate Accounts that are inactive for an extended period of time. You further acknowledge that we reserve the right to change these general practices and limits at any time, in our sole discretion, with or without notice.
You may use the Services only as expressly authorized under this Agreement, and for no other purpose. Without limiting the foregoing, you will not yourself, or through any parent, subsidiary, affiliate, agent, or other third party, entity, or other business structure, authorize, enable, or engage in any of the following: (1) Sell, lease, license, sublicense, rent, or otherwise transfer the Services or use the Services in the operation of a service bureau or on a time-sharing basis; (2) Decompile, disassemble, re-program, reverse engineer, or otherwise attempt to derive or modify the Services or the underlying software in whole or in part; (3) Access the Services by any means other than through the interfaces that are provided by CoralTree; (4) Write or develop any derivative software or any other software program based on the Services, or related information; (5) Remove, alter, cover, or obfuscate any copyright notices or other proprietary rights notices of CoralTree; (6) Use the Services in any manner that may infringe any intellectual property right of CoralTree or any third-party; (7) Use the Services in any manner that violates any statute, law, rule, regulation, directive, guideline, and/or bylaw, whether presently in force or as may be implemented by federal, state, or local authorities; or (8) Use any device, software, or routine that interferes with the proper working of the CoralTree software that supports the Services, or otherwise attempt to interfere with the proper working of the Services.
FEES AND PAYMENT.
In consideration for your use of the Services and the licenses granted hereunder, you agree to pay all charges billed to you in accordance with CoralTree’s billing plan in effect at the time the charge becomes payable. You acknowledge and agree that a portion of the compensation CoralTree receives is for making the Services available to you. Such billing plan is hereby incorporated by reference into this Agreement. You acknowledge that you will be charged a monthly subscription fee, even if you do not use or access the Services. CoralTree reserves the right to change the billing plan and the subscription fees for the Services at the end of your subscription, upon prior notice to you. If you fail to pay the charge(s) for the Services when due, CoralTree reserves the right to pursue any and all legal remedies to collect the amounts owed by you including without limitation the right to suspend or terminate your subscription to the Services. Any late payments shall be subject to a service charge equal to 1.5% of the amount due (calculated on a monthly basis), or the maximum amount allowed by law, whichever is less. You further agree to pay all foreign, federal, state, and local taxes, if applicable, to your access to, use, or receipt of the Services, excluding CoralTree’s operational and/or income taxes.
USER CONTENT TRANSMITTED THROUGH THE SERVICE.
With respect to the content or other materials you upload through the Services or share with other users or recipients collectively (“User Content”), you represent and warrant that you own all right(s), title, and interest in and to such User Content, including, without limitation, all copyrights and rights of publicity contained therein. By uploading any User Content, you hereby grant and will grant CoralTree and its affiliated companies a nonexclusive, worldwide, royalty-free, fully paid up, transferable, sublicensable, perpetual, and irrevocable license, to copy, display, upload, perform, distribute, store, modify, and otherwise use your User Content in connection with the operation of the Services, or the promotion, advertising, or marketing thereof.
If you provide any content to us and/or the Services, including reviews, comments, materials, information on forums or message boards, images, videos, audio files, newsletter, blogs, documents, or any other content (“Content”), you grant us and our successors and assigns, unrestricted, unlimited, worldwide, nonexclusive, royalty-free, perpetual, irrevocable, and transferable license, to host, use, copy, distribute, modify, prepare derivative works of such Content for any purpose, commercial or otherwise. You also grant us the right to use your name in connection with the submitted materials and other information as well as in connection with all advertising, marketing, and promotional material related thereto. You agree that you shall have no recourse against us for any alleged or actual infringement or misappropriation of any property right in your communications to us. We have the right, in our sole and absolute discretion, to: (1) Edit, redact, or otherwise change the Content; (2) Re-categorize any Content to place them in more appropriate locations in the Services; and (3) Pre-screen or delete any Content at any time and for any reason, without notice. We have no obligation to monitor your Content.
We do not guarantee any confidentiality with respect to Content, regardless of whether or not it is published. You are solely responsible for your own Content, and the consequences of posting and/or publishing it. You represent and warrant that you own or have the necessary licenses, rights, consents, and permissions to your Content, including the right to authorize use of the Content in the manner contemplated by the Services and this Agreement.
We neither endorse nor assume any liability for any Content. We generally do not pre-screen, monitor, or edit Content. However, we have the right, at our sole discretion, to remove any Content that, in our judgment, does not comply with this Agreement and any other rules of user conduct for the Services, or is otherwise harmful, objectionable, or inaccurate. We are not responsible for any failure or delay in removing any such Content. You hereby consent to such removal, and waive any claim against us arising out of such removal of any Content, whether it is yours or another user(s)’.
With respect to your Content, you thereby represent and warrant that: (1) The creation, distribution, transmission, public display, or performance, and the accessing, downloading, or copying of your Content does not and will not infringe the proprietary rights, including, but not limited to, the copyright, patent, trademark, trade secret, and/or moral rights of any third-party; (2) You are the creator(s) and owner(s) of and/or have the necessary licenses, rights, consents, releases, and permissions to use and to authorize us, the Services, and other users of the Services to view your Content in any manner contemplated by the Services and this Agreement; (3) You have the written consent, release, and/or permission of each and every identifiable individual person in your Content to use the name or likeness of each and every such identifiable individual person to enable inclusion and use your Content in any manner contemplated by the Services and this Agreement; (4) Your Content is not false, inaccurate, or misleading; (5) Your Content is not obscene, lewd, lascivious, filthy, violent, harassing, libelous, slanderous, or otherwise objectionable (as determined by us); (6) Your Content does not ridicule, mock, disparage, intimidate, or abuse anyone; (7) Your Content does not advocate the violent overthrow of any government, or incite, encourage, or threaten physical harm against another; (8) Your Content does not violate any applicable law, regulation, or rule; (9) Your Content does not violate the privacy or publicity rights of any third-party; (10) Your Content does not contain any material that solicits personal information from anyone under the age of 18 nor exploits people under the age of 18 in a sexual or violent manner; (11) Your Content does not violate any federal or state law concerning child pornography, or that is otherwise intended to protect the health or well-being of minors; (12) Your Content does not include any offensive comments that are connected to race, national origin, gender, sexual preference, or physical handicap; (13) Your Content does not otherwise violate, or link to material that violates, any provision of this Agreement or those Terms, third-party or otherwise, or any applicable law or regulation.
Any information or Content posted to the Services by you is the sole responsibility of the person from whom such Content originated, and you access all such information and Content at your own risk, and we are not liable for any errors or omissions in that information or Content, nor for any damages or loss you might suffer in connection with it. We cannot control, and have no duty to take action, regarding how you may interpret and use the Content or what actions you may take as a result of having been exposed to the Content, and you hereby release us from all liability for you having acquired or not acquired Content through the Services. We cannot guarantee the identity of any users with access to the Services, and we are not responsible for which users gain access to the Services. Any use of the Services in violation of the foregoing violates this Agreement and may result in, among other things, termination or suspension of your rights to use our Services.
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback, or other information about the Services (“Submissions”) provided by you to us is non-confidential, and we will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgement or compensation to you.
You acknowledge and agree that we may preserve Content and may also disclose Content if required to do so by law, or in the good faith belief that such preservation or disclosure is reasonably necessary to: (1) Comply with legal process(es), applicable law(s), or government request(s); (2) Enforce this Agreement; (3) Respond to claims that any Content violates the rights of third parties; and/or (4) Protect the rights, property, or personal safety of CoralTree, its users, and the public.
You understand that the technical processing and transmission of the Services, including your Content, may involve: (1) Transmissions over various networks; and/or (2) Changes to conform and adapt to technical requirements of connecting networks or devices.
The Services may contain profiles, email systems, blogs, message boards, applications, job postings, chat areas, news groups, forms, communities, and/or other messages or communication facilities (“Public Areas”) that allow users to communicate with other users. You may only use such Public Areas to send and receive messages and material that are relevant and proper to the applicable forum.
This Agreement commences on the date that you accept it and continues, so long as you pay your monthly subscription fees, until your subscription has expired or is terminated in accordance with the terms of this Agreement. Either party may terminate this Agreement upon thirty (30) days formal written notice to the other party in the event of a material breach of any provision of this Agreement by the other party, provided that, during that thirty (30) day period, the breaching party fails to cure such breach. Such notice by the complaining party shall expressly state all of the reasons for the claimed breach in sufficient detail so as to provide the alleged breaching party a meaningful opportunity to cure such alleged breach. Upon termination or expiration of this Agreement, you shall have no rights to continue use of the Services. If you terminate this Agreement for any reason other than a termination expressly permitted by this Agreement, you agree that CoralTree shall be entitled to all of the fees due under this Agreement for the entire term of your subscription. If this Agreement is terminated as a result of a material breach on CoralTree’s part, CoralTree shall refund the pro-rata portion of any fee paid by you for the terminated portion of your subscription. In the event that your Service is terminated for any reason, CoralTree will grant you temporary, limited access to the Service for the sole purpose of permitting you to retrieve your data, provided that you have paid in full all good faith undisputed amounts owed to CoralTree. You further agree that CoralTree shall not be liable to you nor to any third-party for any termination of your access to the Service or deletion of your data, provided that CoralTree is in compliance with the terms of this Section 5.
You agree that CoralTree, in its sole discretion, may suspend or terminate your Account (or any part thereof) or use of the Services, and remove and/or discard any content within the Services, for any reason, including, without limitation, for lack of use or if CoralTree believes that you have violated or acted inconsistently with the letter or spirit of this Agreement. Any suspected fraudulent, abusive, or illegal activity that may be grounds for termination of your use of the Services may be referred to appropriate law enforcement authorities. CoralTree may also, in its sole discretion and at any time, discontinue providing the Services, or any part thereof, with or without notice. You agree that any termination of your access to the Services under any provision of this Agreement may be affected without prior notice, and you acknowledge and agree that we may immediately deactivate or delete your Account and all related information and files in your Account and/or bar any further access to such files or the Services. Further, you agree that we will not be liable to you or any third-party for any termination of your access to the Services.
THESE TERMS SHALL REMAIN IN FULL FORCE AND EFFECT WHILE YOU USE THE SERVICES. WITHOUT LIMITING ANY OTHER PROVISION OF THIS AGREEMENT, WE RESERVE THE RIGHT TO, IN OUR SOLE DISCRETION AND WITHOUT NOTICE OR LIABILITY, DENY ACCESS TO AND USE OF THE SERVICES (INCLUDING BLOCKING CERTAIN IP ADDRESSES) TO ANY PERSON, FOR ANY REASON OR FOR NO REASON, INCLUDING, WITHOUT LIMITATION, FOR BREACH OF ANY REPRESENTATION, WARRANTY, OR COVENANT CONTAINED IN THIS AGREEMENT, OR ANY APPLICABLE LAW OR REGULATIONS. WE MAY TERMINATE YOUR USE OR PARTICIPATION IN THE WEBSITE OR SERVICES, OR DELETE YOUR ACCOUNT AND ANY CONTENT AND/OR INFORMATION THAT YOU POSTED AT ANY TIME, WITHOUT WARNING, IN OUR SOLE DISCRETION.
Upon any breach by you of this Agreement, we may pursue, in our sole discretion, all of our legal remedies, including, but not limited to, termination of your Account and of your ability to use and/or access the Services. You agree that any termination of your access to the Services may be affected without prior notice, and you acknowledge and agree that we may immediately deactivate or delete your Account and all related information and material in your Account and/or bar any further access to such information and/or to the Services. Further, you agree that we are not liable to you or to any third-party for any termination of your access to the Services.
You are solely responsible for obtaining access to the World Wide Web, either directly or through devices that access Web-based content. You understand that DSL, cable, or other high speed Internet connection is required for proper performance of the Services. You agree to use third-party software necessary for accessing the Service, including, but not limited to, “browser” software that supports a data security protocol compatible with the protocol used by CoralTree. You understand that the technical processing and transmission of your electronic data and communications is fundamentally necessary to your use of the Services, which shall involve transmission over the Internet, and over various networks, only part of which may be owned and/or operated by CoralTree. You expressly consent to CoralTree’s interception and storage of your electronic communications and data in connection with providing the Services and further acknowledge and understand that electronic communications may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone, or other electronic means. You agree that CoralTree is not responsible for any electronic communications and/or data which are delayed, lost, altered, intercepted, or stored without authorization during the transmission of any data whatsoever across networks not owned and/or operated by CoralTree, including, but not limited to, the Internet.
You agree that you are solely responsible for your interactions with any other user in connection with the Services. We will have no liability or responsibility with thereto. We reserve the right, but have no obligation, to become involved in any way with disputes between you and any other user of the Services.
CHANGES TO THE SERVICE.
CoralTree reserves the right at any time, and from time to time, to modify, temporarily or permanently, the Services (or any part thereof). In the event that CoralTree modifies the Services in a manner which removes or disables a feature or functionality on which you materially rely, CoralTree, at your request, shall use commercially reasonable efforts to substantially restore such functionality to you. In the event that CoralTree is unable to substantially restore such functionality (unless enjoined from doing so by a court of competent jurisdiction), you shall have the right to terminate the Agreement and receive a pro-rata refund of the fees paid under this Agreement for the remaining period of your subscription. You acknowledge that CoralTree reserves the right to discontinue offering the Services at the conclusion of your subscription. You agree that CoralTree shall not be liable to you nor to any third-party for any modification of the Services as described in this Section 7.
Under no circumstances will we be liable in any way for any content or materials of any third parties (including users), including, but not limited to, for any errors or omissions in any such content or materials, or for any loss or damages(s) of any kind incurred as a result of the use of any such content. You acknowledge that we do not pre-screen content, but that we and our designees will have the right (but not the obligation), in our sole discretion, to refuse or remove any content that is available via the Services. Without limiting the foregoing, we and our designees will have the right to remove any content that violates this Agreement, or is deemed by us, in our sole discretion, to be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any such content, including any reliance on the accuracy, completeness, or usefulness of such content.
INTERACTION WITH THIRD PARTIES.
INTELLECTUAL PROPERTY RIGHTS.
You acknowledge and agree that the Services may contain content or features (“Service Content”) that are protected by copyright, patent, trademark, trade secret, or other proprietary rights and laws. Except as expressly authorized by us, you agree not to copy, frame, scrape, rent, lease, loan, sell, distribute, or create derivative works based on the Services or the Service Content, in whole or in part, except that the foregoing does not apply to your own User Content (as defined above) that you legally upload to the Services. In connection with your use of the Services, you will not engage in or use any data mining, robots, scraping, or similar data gathering or extraction methods. If you are blocked by us from accessing the Services (including by blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address). Any use of the Services or the Service Content other than as specifically authorized herein is strictly prohibited. The technology and software underlying the Services or distributed in connection therewith are the property of us, our affiliates, and our partners (“Software”). You agree not to copy, modify, create derivative works of, reverse engineer, reverse assemble, or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any other right in the Software, Services, and/or Service Content. Any rights not expressly granted herein are reserved to us.
Our name and logos are trademarks and service marks of CoralTree (collectively the “CoralTree Trademarks”). Other company, product, and service names and logos used and displayed via the Services may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to us. Nothing in this Agreement or the Services should be construed as granting, by implication, estoppel, or otherwise, any license or any right to use any of the CoralTree Trademarks displayed on the Services, without our prior written permission in each instance. All goodwill generated from the use of CoralTree Trademarks will inure to our exclusive benefit.
If you believe that your User Content or Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to upload and use the content in your User Content or Content, you may send a written counter-notice containing the following information to the copyright agent of the copyright owner: (1) Your physical or electronic signature; (2) Identification of the User Content or Content, which has been removed or to which access has been disabled, and the location at which the User Content or Content appeared before it was removed or disabled; (3) A statement that you have a good faith belief that the User Content or Content was removed or disabled as a result of mistake or a misidentification of such User Content or Content; and (4) Your name, address, telephone number, and email address; a statement that you consent to the jurisdiction of the state court located within the Superior Court of Santa Clara or the federal court located within the United States District Court, Northern District of California; and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the copyright agent, we will send a copy of the counter-notice after our receipt of it to the original complaining party informing that it may replace the removed User Content or Content, or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member, or user, the removed User Content or Content may be replaced, or access to it restored, in 10 to 14 business days, or more, after receipt of the counter-notice, at our sole discretion.
WORKER CLASSIFICATION AND WITHHOLDING.
The Services are not an employment service and we are not an employer of any user. As such, we are not responsible for and will not be liable for any tax payments or withholding, including, but not limited to, unemployment insurance, social security, disability insurance, or any other applicable federal or state withholding in connection with your use of the Services.
CoralTree is always interested in resolving disputes amicably and efficiently, and most of your concerns can be resolved quickly and to your satisfaction by emailing customer support at email@example.com. If such efforts prove unsuccessful, parties may engage in good faith informal negotiations to resolve such disputes. If those negotiations fail, parties may seek mediation, and must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). A Notice to CoralTree should be sent to firstname.lastname@example.org. The Notice must: (1) Describe the nature and basis of the claim or dispute; and (2) Set forth the specific relief sought. If CoralTree and you do not resolve the claim through mediation within sixty (60) calendar days after the Notice is received, CoralTree or you may commence arbitration proceedings by providing to the arbitrator and the other party a written Notice that: (1) Describes the nature and basis of the claim or dispute; and (2) Sets forth the specific relief sought. During arbitration, the amount of any settlement offer made by CoralTree or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or CoralTree is owed or entitled. If CoralTree and you do not resolve the claim through arbitration within thirty (30) calendar days after the arbitrator receives the Notice, either party may bring their dispute or claim to court in either the Superior Court of Santa Clara and/or the United States District Court, Northern District of California.
Unless provided otherwise in this Agreement or by law, the dispute resolution procedures included herein shall be the exclusive mechanism to resolve all disputes or claims arising under this Agreement. All of any disputes arising out of, touching upon, or in relation to this Agreement, including the interpretation and validity of the terms thereof and the respective rights and obligations of the parties, shall be exclusively settled by the dispute resolution procedures included herein. You agree that any and all disputes or claims that have arisen or that may arise between CoralTree and you, whether arising out of or relating to this Agreement (including any alleged breach thereof), the Services, any advertising, and/or any aspect of the relationship or transaction between us, shall be resolved exclusively under this Agreement, but you may assert individual claims in small claims court if your claims qualify. However, this Agreement does not preclude, if the law allows, seeking relief against us on your behalf. The parties agree to use their respective best efforts to resolve any dispute(s) that may arise regarding this Agreement.
CoralTree and you shall initially attempt to resolve all claims, disputes, or controversies arising under, out of, or in connection with, this Agreement by conducting good faith informal negotiations between the parties. Any dispute that arises under or with respect to this Agreement that cannot be resolved by contacting customer support shall in the first instance be the subject of good faith informal negotiations between the parties involved in the dispute. To this effect, parties shall consult and negotiate with each other in good faith and, recognizing their mutual interest, attempt to reach a just and equitable solution satisfactory to both parties. The dispute shall be considered to have arisen when one party sends the other party involved in the dispute the aforementioned written Notice within fourteen (14) days of the dispute arising. The period of good faith informal negotiations shall be fourteen (14) days from receipt of the written Notice unless such time is modified by written agreement of the parties involved in the dispute.
In the event that the parties involved in the dispute cannot resolve that dispute by good faith informal negotiations, the parties agree to submit their dispute to good faith mediation within fourteen (14) days of the negotiation’s end. Within fourteen (14) days following the expiration of the time period for good faith informal negotiations, the parties shall propose and agree upon a neutral and otherwise qualified mediator. In the event that the parties fail to agree upon a mediator, the parties shall request that the American Arbitration Association (“AAA”) appoint a mediator. The mediation will be held in Santa Clara, California, or another mutually agreed upon venue in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination of the location shall be made by AAA. The period for mediation shall commence upon the appointment of the mediator and shall not exceed sixty (60) days from receipt of the Notice, unless such time period is modified by a written agreement between the parties. The decision to continue mediation shall be at the sole discretion of each party involved in the dispute. Although the parties will bear their own costs of mediation, mediator’s fees shall be shared equally by all parties involved in the dispute. The mediation decision is non-binding until a written mediation agreement, or consent order, is reached and/or sent to a court of appropriate jurisdiction.
In the event that the parties cannot resolve their dispute by negotiation or mediation, the parties agree to submit their dispute to arbitration by providing Notice to the other party within fourteen (14) days of mediation’s end and agree that the arbitration process provided herein shall be the exclusive means for resolving disputes which the parties cannot otherwise resolve through negotiation or mediation as described above, except that parties may bring their disputes or claims to the Superior Court of Santa Clara or the united States District Court, Northern District of California if arbitration fails. Any arbitration will be conducted in the English language by a neutral arbitrator in accordance with the AAA rules and procedures, including the AAA’s Supplementary Procedures for Consumer-Related Disputes (collectively, the “AAA Rules”), as modified herein. Whenever a party shall decide to institute arbitration proceedings, it shall provide the aforementioned written Notice to the other parties involved within fourteen (14) days of mediation’s end. Arbitration proceedings shall take place before a single arbitrator who shall be jointly selected by the parties. If the parties fail to agree upon an arbitrator within thirty (30) days of Notice receipt, either party may apply to the AAA office in Washington D.C. to select an arbitrator. Unless otherwise agreed to by the parties, the Notice must be submitted to the arbitrator for determination within ninety (90) days from the date the arbitrator is selected and the arbitrator shall render his or her decision within thirty (30) days after receipt of that Notice. Each party shall use its best efforts and cooperation such that the Notice is fully submitted to the arbitrator within such ninety (90) day period.
For information on the AAA, please its website (www.adr.org). Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page (www.adr.org/consumer_arbitration). If there is any inconsistency between any term of the AAA Rules and any term of this Agreement, the applicable terms of this Agreement will control unless the arbitrator determines that the application of the inconsistent Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of this Agreement as a court would. All issues are for the arbitrator to decide, including, but not limited to issues relating to the scope, enforceability, and arbitrability of this Agreement. Although arbitration proceedings are usually simpler, and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under this Agreement. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
Unless CoralTree and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination of the location shall be made by AAA. If your claim is for $10,000 of less, CoralTree agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
Payment of all filing, administration, and arbitration fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Agreement. If the value of the relief sought is $75,000 or less, at your request, CoralTree will pay all Arbitration Fees. If the value of relief sought is more than $75,000, and you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, CoralTree will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, CoralTree will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys’ fees will be governed by AAA Rules.
The arbitration provisions included herein shall not prevent any party from obtaining injunctive or equitable relief from a court of competent jurisdiction to enforce the obligations for which such party may obtain provisional relief pending a decision on the merits by the arbitrator. Each of the parties hereby consents to the jurisdiction of the Superior Court of Santa Clara or the United States District Court, Northern District of California for such purpose. The arbitrator shall apply California law as required and shall have authority to award any legal or equitable remedy that a California court could grant in accordance with applicable law and the terms of this Agreement, except that the arbitrator shall have no authority to award punitive damages. All attorney’s fees and costs of the arbitration shall be borne by the party incurring such costs or fees, except the upon application by the Prevailing Party, the arbitration shall award the prevailing party its attorneys’ fees and expenses to be paid by the other party. “Prevailing Party” shall be defined for the purposes of this Agreement as the party to which the arbitrator issues an award of legal or injunctive relief, or otherwise determines substantially prevailed on the merits in the arbitration. Any arbitration award shall be accompanied by a written statement containing a summary of the issues in controversy, a description of the award, and an explanation of the reasons for the award. The arbitrator’s award, if any, shall be final, binding, and non-appealable, and judgment may be entered upon such award by any court of competent jurisdiction.
In connection with any arbitration provisions hereunder, each party shall have the right to take the depositions of individuals including any expert witnesses retained by the other party. Additional discovery may be had where the arbitrator so orders, upon a showing of need. Each party bears the burden of persuasion of any claim or counterclaim raised by that party.
If resolving the dispute by arbitration fails to produce a binding settlement, parties may commence a suit, action, or other proceeding in the Superior Court of Santa Clara County, or in the United States District Court, Northern District of California. The parties agree not to initiate legal proceedings in relation to a dispute unless they have tried and failed to resolve the dispute by contacting customer support, negotiation, mediation, and arbitration. The parties: (1) Hereby irrevocably and unconditionally submit to the jurisdiction of the Superior Court of Santa Clara County or the United States District Court, Northern District of California, for the purpose of any suit, action, or other proceeding arising out of or based upon this Agreement; (2) Agree not to commence any suit, action, or other proceeding arising out of or based upon this Agreement except in the Superior Court of Santa Clara County, or in the United States District Court, Northern District of California; and (3) Hereby waive and agree not to assert, by way of motion, as a defense, or otherwise, in any such suit, action, or other proceeding, any claim that is not subject to the jurisdiction of the above-named courts; that its property is exempt or immune from attachment or execution; that the suit, action, or proceeding is brought in an inconvenient forum; that the venue of the suit, action, or proceeding is improper; or that this Agreement or the subject matter hereof may not be enforced in or by such court.
CONFIDENTIALITY OF DISPUTE RESOLUTION PROCESSES.
All aspects of the negotiation, mediation, and/or arbitration proceedings, and any rulings, decisions, or awards by the mediator and/or arbitrator, will be strictly confidential for the benefit of all parties.
All such proceedings are confidential. Neither Party shall disclose any information about the evidence produced by the other Party in the negotiation, mediation, and/or arbitration proceedings, except if necessary for judicial or regulatory proceedings, or as may be demanded by government authority, or otherwise required by state or federal law, or the rules of a national securities exchange. Before making any disclosure permitted by the preceding sentence, a Party shall give the other Party reasonable advance notice of the intended disclosure and give the other Party an opportunity to prevent disclosure.
If any provision of this Agreement is held by a court or other tribunal of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent, such that the remaining provisions of this Agreement will continue in full force and effect.
CONFLICT OF LAW.
This Agreement will be governed by the laws of the State of California without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and CoralTree agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within Santa Clara County, California. The failure of CoralTree to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in that provision, and the other provisions of this Agreement shall remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services or this Agreement must be filed within one (1) year after such claim or cause of action arose or to be forever waived. A printed version of this Agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign this Agreement without the prior consent of CoralTree, but CoralTree may assign or transfer this Agreement, in whole or in part, without restriction. The section titles in this Agreement are for convenience only and have no legal or contractual effect. Notice to you may be made via email or regular mail. The Services may also provide notices to you of changes to this Agreement or other matters by displaying notices or links to notices generally on the Services.
You may not access or use our Services for any purpose other than that for which we make the Services available. As a user of the Services, you agree not to: (1) Circumvent, disable, or otherwise interfere with security-related features of the Services, including enforcing limitations on the use of the Services; (2) Engage in unauthorized framing of or linking to the Services; (3) Trick, defraud, or mislead us to other user(s), especially in any attempt to learn sensitive account information such as user passwords; (4) Make improper use of our support services or submit false reports of abuse or misconduct; (5) Engage in any automated use of the system, Software, or Services, such as using scripts to send comments or messages, or using any data mining, robots, or similar data gathering and extraction tools; (6) Interfere with, disrupt, or create an undue burden on the Website, Application, Services, or the networks or services connected to the Services; (7) Attempt to impersonate another user or person, or use the username of another user; (8) Sell or otherwise transfer your profile; (9) Use any information obtained from the Services, Software, and/or the Application in order to harass, abuse, or harm another person; (10) Use the Services, Software, and/or the Application as part of any effort to compete with us; (11) Decipher, decompile, disassemble, or reverse engineer any of the Software or Services comprising or in any way making up any part of the Services, Software, and/or Application that is not already made public by us; (12) Attempt to bypass any measures of the Services, Software, and/or the Application designed to prevent or restrict access to the Services, Software, and/or Application, or portion of the Services, Software, and/or the Application; (13) Harass, annoy, intimidate, or threaten any of our employees or agents engaged in providing any portion of the Services to you; (14) Delete, or attempt to delete, the copyright or other proprietary rights notice from any of our content; (15) Upload or transmit (or attempt to upload or attempt to transmit) viruses, Trojan Horses, or other material, including excessive use of capital letters and spamming (continuous posting of repetitive text) that interferes with any party’s uninterrupted use and enjoyment of the Services, Software, and/or the Application, or modifies, impairs, disrupts, alters, or interferes with the use, features, functions, operations, or maintenance of the Services, Software, and/or the Application; (16) Upload or transmit (or attempt to upload or attempt to transmit) any material that acts on a passive or active information collection or transmission mechanism, including, without limitation, clear graphics, interchange formats (“gifs”), 1 x 1 pixels, web bugs, cookies, or other similar devices (sometimes referred to as “spyware” or “passive collection mechanisms,” or “pcms”); (17) Except as may be the result of standard search engine or Internet browser usage, use, launch, develop, or distribute any automated system, including, without limitation, any spider, robot, cheat utility, scraper, or offline reader that accesses the Services, Software, and/or the Application, or using or launching any unauthorized script or other software; (18) Disparage, tarnish, or otherwise harm, in our opinion, us and/or our Services, and use our Services in a manner inconsistent with any applicable laws or regulations.
MOBILE APPLICATION LICENSE.
If you access the Services via the mobile Application, then we grant you a revocable, nonexclusive, nontransferable, limited right to install and use the mobile Application on wireless electronic devices owned or controlled by you, and to access and use the mobile Application on such device strictly in accordance with the terms and conditions of this Agreement.
The following terms apply when you use the mobile Application obtained from the Apple Store, Google Play, or any other mobile App Store to access the Services: (1) The license granted to you for the mobile Application is limited to a nontransferable license to use the mobile Application on a device that utilizes the Apple iOS, Android, or any other mobile operating system; (2) In the event of any failure of the mobile Application to conform to any applicable warranty, you may notify us and we may endeavor to correct such failure, but will have no warranty obligation whatsoever with respect to the mobile Application.
When using our mobile Application, you represent and warrant that: (1) You are not located in a country that is subject to a United States government embargo, or that has been designated by the United States government as a “terrorist supporting” country; (2) You are not listed on United States government list of prohibited or restricted parties; and (3) You must comply with applicable third-party terms of service and agreement when using our mobile Application, e.g. if you have a VoIP application, then you must not be in violation of their wireless data service agreement when using the mobile Application; or you acknowledge and agree that our mobile Application partners are third-party beneficiaries of this Agreement, and that each such mobile Application partner will have the right (and will be deemed to have accepted the right) to enforce the Agreement within this mobile Application license contained in this Agreement against you as a third-party beneficiary thereof.
ELIGIBILITY TO USE THE SERVICES.
THE SERVICES ARE NOT AVAILABLE TO ANY PERSONS UNDER THE AGE OF 18 WITHOUT PARENTAL CONSENT. By using the Services, you affirm that: (1) You are at least eighteen (18) years of age if accessing the Services without parental consent; (2) Any information you provide to us is accurate and truthful, and that you will maintain the accuracy of such; (3) You are legally permitted to use and access the Services and you take full responsibility for your access, selection, and use of the Services; (4) Your use of the Services does not violate any applicable law or regulation; and (5) You will maintain accurate information with us.
You will not use the Services: (1) For any unlawful, invasive, infringing, defamatory, fraudulent, or obscene purpose; (2) To create any virus, worm, Trojan Horse, or harmful code; (3) For any illegal or unauthorized purpose; (4) To violate any federal, state, or local laws, including those such as libel, slander, defamation, trade libel, product disparagement, harassment, invasion of privacy, tort, obscenity, indecency, and copyright or trademark infringement; or (5) To alter, steal, corrupt, disable, destroy, trespass, or violate any security or encryption of any computer file, database, or network.
YOUR RIGHTS AND RESPONSIBILITIES.
You are responsible for providing accurate information to us about yourself, and to inform us if and when that information changes. We cannot be responsible for incomplete and/or inaccurate information. You agree that under no circumstances may you impersonate or represent that you are any individual or entity different from your actual identity. We will ban any users who knowingly impersonate others.
All right, title, and interest in and to the Services, and all materials, images, and/or text available on or through the Services (including, without limitation, text, graphics, logos, button icons, images, blog posts, audio clips, and software), are and will remain the exclusive property of us and of our licensors. The Services are protected by copyright, trademark, and other laws of both the United States and foreign countries. Nothing in this Agreement gives you any right to use the CoralTree name or any of our trademarks, logos, domain names, software, and other distinctive brand features. You acknowledge that you receive no ownership, right(s), title, and/or interest in any intellectual property rights (including, for the avoidance of doubt, patents, copyrights, rights in databases and software, trademarks, and trade names, whether registered or unregistered and subsisting anywhere in the world), images, music, sound samplings, and other protected materials. The violation of applicable intellectual property laws may give rise to civil and/or criminal penalties.
We respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 (“DMCA”). If you believe that your copyrighted work has been copied, reproduced, or published in a way that constitutes copyright infringement and is accessible via the Services, please notify email@example.com. For your complaint to be valid under the DMCA, you must provide the following information in writing: (1) An electronic or physical signature of a person authorized to act on behalf of the copyright owner; (2) Identification of the copyrighted work that you claim has been infringed; (3) Identification of the material that is claimed to be infringing, and where it is located on our Services; (4) Information reasonably sufficient to permit us to contact you, such as your address, telephone number, and email address; (5) A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or by law; (6) A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.
This procedure is exclusively for notifying us that your copyrighted material has been infringed. The preceding requirements are intended to comply with our rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.
In accordance with the DMCA and other applicable law, we have adopted a policy of terminating, in appropriate circumstances, users who are deemed to be repeat infringers. We may also at our sole discretion limit access to the Services, and/or terminate the accounts of any users who infringe intellectual property rights of others.
If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952 5210 or (916) 455 1254.
DISCLAIMER OF WARRANTIES.
THE SERVICE IS PROVIDED TO YOU “AS IS” WITH ALL FAULTS, WITHOUT ANY WARRANTIES OF ANY KIND AND YOU AGREE TO USE IT AT YOUR OWN RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, CORALTREE DISCLAIMS ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT OF PROPRIETARY OR THIRD-PARTY RIGHTS, AND THE WARRANTY OF FITNESS FOR PARTICULAR PURPOSE. CORALTREE DOES NOT REPRESENT THAT YOUR USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED, OR ERROR-FREE, OR THAT THE SERVICE WILL MEET YOUR REQUIREMENTS, OR THAT ALL ERRORS IN THE SERVICE AND/OR DOCUMENTATION WILL BE CORRECTED, OR THAT THE SYSTEM THAT MAKES THE SERVICE AVAILABLE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. IF YOUR USE OF THE SERVICE RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT, OR LOSS OF PROFITS OR DATA, CORALTREE IS NOT RESPONSIBLE FOR THOSE COSTS. CORALTREE MAKES NO WARRANTIES ABOUT THE ACCURACY, RELIABILITY, COMPLETENESS, OR TIMELINESS OF THE SERVICE, OR ABOUT THE RESULTS TO BE OBTAINED FROM USING, AND YOU ASSUME ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICE OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR YOUR PURPOSES.
CORALTREE EXPRESSLY DISCLAIMS ANY WARRANTY WITH RESPECT TO THE QUALITY OR CONTINUITY OF THIRD-PARTY TELECOMMUNICATIONS OR INFORMATION SYSTEMS OR SERVICES, SERVER CONNECTION SPEEDS, OR THE FUNCTIONALITY, OPERABILITY, OR RELIABILITY OF CORALTREE’S OR ANY THIRD-PARTY’S DATA SECURITY FEATURES OR SYSTEMS.
WE DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT, SERVICE, OR CONTENT ADVERTISED OR OFFERED BY A THIRD-PARTY THROUGH THE SERVICES, AND ANY HYPERLINKED WEBSITE, OR ANY WEBSITE OR MOBILE APPLICATION FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND WE WILL NOT BE A PARTY TO OR IN ANY WAY RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND ANY THIRD-PARTY PROVIDERS OF PRODUCTS, SERVICES, OR CONTENT. AS WITH THE PURCHASE OF ANY PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
PARTICULARLY, WE MAKE NO GUARANTEES AS TO THE ACCURACY OF THE INFORMATION ON OUR SERVICES AND/OR APPLICATION. THE INFORMATION PROVIDED THROUGH OUR SERVICES SHOULD NOT BE RELIED UPON, AND YOU SHOULD ALWAYS CONDUCT YOUR OWN INDEPENDENT INVESTIGATIONS OF ANYTHING FEATURED ON OUR SERVICES AND/OR APPLICATION.
WE TAKE NO RESPONSIBILITY FOR THE EVENTS OR SERVICES THAT WE RECOMMEND OR FEATURE ON OUR SERVICES. ANY EVENT OR SERVICES THAT YOU USE OR ATTEND AS A RESULT OF YOUR USE OF OUR SERVICES IS ENTIRELY AT YOUR OWN RISK.
WE ARE NOT RESPONSIBLE FOR WITHHOLDING, COLLECTION, AND/OR PAYMENT OF ANY DIRECT OR INDIRECT TAXES, DUTIES, AND/OR LEVIES ON ANY TRANSACTIONS UNDERTAKEN AMONG THE USERS THROUGH THE SERVICES. FURTHER, USER(S) ARE SOLELY RESPONSIBLE FOR MAKING THE REQUIRED FILINGS AND REPORTING SUCH TRANSACTIONS WITH APPROPRIATE AUTHORITIES. YOU SHOULD CONSULT YOUR OWN TAX, LEGAL, AND ACCOUNTING ADVISORS BEFORE ENGAGING IN ANY TRANSACTIONS THROUGH OUR SERVICES.
LIMITATIONS OF LIABILITY.
IN NO EVENT WILL EITHER PARTY OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR REPRESENTATIVES BE LIABLE TO THE OTHER PARTY OR TO ANY PERSONNEL, SUBCONTRACTOR, OR OTHER PERSON OR ENTITY CLAIMING THROUGH SUCH PARTY UNDER ANY EQUITY, COMMON LAW, CONTRACT, ESTOPPEL, NEGLIGENCE, TORT, STRICT LIABILITY, OR ANY OTHER THEORY (REGARDLESS OF THE FORM OF ACTION) FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OR DISCLOSURE OF DATA, LOST REVENUE, LOST PROFITS, LOSS OF BUSINESS, LOSS OF GOODWILL, OR LOSS OF OTHER ECONOMIC ADVANTAGE), OR THE COST OF PROCURING SUBSTITUTE PRODUCTS OR SERVICES ARISING OUT OF, RESULTING FROM, OR RELATING TO THE AGREEMENT, OR THE USE OR PERFORMANCE OF THE SERVICE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT WITH REGARD TO AMOUNTS DUE UNDER THIS AGREEMENT, A PARTY’S BREACH OF CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT, OR A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, THE MAXIMUM LIABILITY OF EITHER PARTY TO ANY PERSON, FIRM, OR CORPORATION WHATSOEVER ARISING OUT OF OR IN THE CONNECTION WITH ANY LICENSE, USE, OR OTHER EMPLOYMENT OF THE SERVICE, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON BREACH OR REPUDIATION OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, TORT, OR OTHERWISE, SHALL IN NO CASE EXCEED THE EQUIVALENT OF 12 MONTHS IN FEES APPLICABLE AT THE TIME OF THE EVENT.
Each party will indemnify the other, its officers, directors, or employees, and hold them harmless from and against any and all claims, demands, liabilities, losses, costs, and damages (including without limitation court costs and reasonable attorney’s fees) (collectively, the “Claims”) that the indemnified party or any of its officers, directors, or employees incur or suffer as a result of death or bodily injury, or to damage to tangible personal property, to the extent (a) arising under or related to this Agreement, and (b) caused by the negligence or willful misconduct of the indemnifying party or its employees, or breach of this Agreement by the indemnifying party.
CoralTree shall defend you against any Claims made or brought against you by a third party alleging that your use of the Services as permitted hereunder infringes any copyright or trademarks or misappropriates any trade secrets of any third party, and shall indemnify you for any damages finally awarded against, and for reasonable attorneys’ fees incurred by you in connection with any such Claim.
You shall defend CoralTree against any Claims made or brought against CoralTree by a third- party alleging that your electronic communications or data, or your use of the Services, infringes or misappropriates the intellectual property rights of any third-party, or violates applicable law, and shall indemnify CoralTree for any damages finally awarded against, and for reasonable attorneys’ fees incurred by CoralTree in connection with any such Claim.
As a condition to any indemnification under this Section 10, the indemnified party must: (1) Notify the indemnifying party promptly in writing of any such claim or proceeding; and (2) Give the indemnifying party full and complete authority, information, and assistance to defend such claim or proceeding at the expense of the indemnifying party, including sole control of the selection of counsel and the defense of any such claim or proceeding and all negotiations for its compromise or settlement. Notwithstanding the foregoing, the indemnified party’s failure to give the indemnifying party prompt written notice of any such claim or proceeding will only relieve the indemnifying party of its obligation to indemnify the indemnified party to the extent the indemnifying party is prejudiced by such failure.
This Section 10 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of Claim described in this Section 10.
BASIS OF THE BARGAIN.
THE PARTIES ACKNOWLEDGE AND AGREE THAT THE FOREGOING SECTIONS ON INDEMNIFICATION, WARRANTY DISCLAIMER, AND LIMITATION OF LIABILITY FAIRLY ALLOCATE THE RISKS BETWEEN THE PARTIES AND ARE ESSENTIAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. YOU EXPRESSLY ACKNOWLEDGE THAT THE FEES THAT CORALTREE CHARGES FOR THE SERVICES ARE BASED UPON CORALTREE’S EXPECTATION THAT THE RISK OF ANY LOSS OR INJURY THAT MAY BE INCURRED BY USE OF THE SERVICES WILL BE BORNE BY YOU AND NOT CORALTREE, AND WERE CORALTREE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN, SUCH FEES WOULD OF NECESSITY BE SET SUBSTANTIALLY HIGHER. CERTAIN STATES AND/OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE EXCLUSIONS SET FORTH ABOVE MAY NOT APPLY TO YOU.
For purposes of this Agreement, confidential information shall include the terms of this Agreement and any information that is clearly identified in writing at the time of disclosure as confidential, or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (“Confidential Information”). Each party agrees: (1) To keep confidential all Confidential Information disclosed to it by the other party or by a third-party; (2) Not to use the Confidential Information of the other party except to the extent necessary to perform its obligations or exercise rights under this Agreement; and (3) To protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information) and to make Confidential Information available to authorized persons only on a “need to know” basis. Either party may disclose Confidential Information on a need-to-know basis to its contractors who have executed written agreements requiring them to maintain such information in strict confidence and to use it only to facilitate the performance of their services in connection with the performance of this Agreement. Confidential Information shall not include information which: (1) Is known publicly; (2) Is generally known in the industry before disclosure; (3) Has become known publicly, without fault of the recipient, subsequent to disclosure by the disclosing party; or (4) The recipient becomes aware of from a third-party not bound by non-disclosure obligations to the disclosing party, and with the lawful right to disclose such information to the recipient. Notwithstanding the foregoing, this Section 12 will not prohibit the disclosure of Confidential Information to the extent that such disclosure is permitted by law or order of a court or other governmental authority or regulation; provided the receiving party gives the disclosing party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the disclosing party’s cost, if the disclosing party wishes to contest the disclosure.
Neither party shall be held liable for any delay or failure in performance of its obligations under this Agreement from any cause beyond its reasonable control and without its fault or negligence, including, but not limited to, acts of God, acts of civil or military authority, government regulations, government agencies, delay or failure to receive government approvals, embargoes, epidemics, war, terrorist acts, riots, insurrections, fires, explosions, earthquakes, nuclear accidents, floods, power blackouts affecting facilities, unusually severe weather conditions, inability to secure products or services of other persons or transportation facilities, unavailability of or interruption or delay in telecommunications or third-party services (including Internet services), virus attacks or hackers, failure of third-party software (a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the party whose performance is affected shall give written notice to the other party of such Force Majeure Event and the extent of the effect on the first party’s performance, and the parties shall promptly confer, in good faith, to agree upon equitable, reasonable action to minimize the impact on both parties of such Force Majeure Event, including, without limitation, implementing disaster recovery procedures. The parties agree that the party whose performance is affected shall use commercially reasonable efforts to minimize the delay caused by the Force Majeure Events and recommence the affected performance. If the period of nonperformance exceeds thirty (30) days from the receipt of notice of the Force Majeure Event, the party whose performance has not been so affected may, by giving written notice, terminate this Agreement.
We reserve the right, but not the obligation, to: (1) Monitor the Services for violations of this Agreement; (2) Take appropriate legal action against anyone who, in our sole discretion, violates the law or this Agreement, including, without limitation, reporting such User(s) to law enforcement authorities; (3) In our sole discretion and without limitation, refuse, restrict access to, limit the availability of, or disable (to the extent technologically feasible), any of your Content, User Content, or any portion thereof; (4) In our sole discretion and without limitations, notice, or liability, to remove the Services, or otherwise disable all files and content excessive in size or are in any way burdensome to our systems, and otherwise manage the Services in a manner designed to protect our rights and our property and to facilitate the proper functioning of the Services.
This Agreement shall be governed in accordance with the laws of the State of California and any controlling U.S. federal law. Any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Santa Clara County, California. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement. In the event of any litigation of any controversy or dispute arising out of or in connection with this Agreement, its interpretations, its performance, or the like, the prevailing party shall be awarded reasonable attorneys’ fees and/or costs.
When you provide information to us via the Services, or send email(s) to us, you are communicating with us electronically. By providing information through our Services, you consent to receive communications from us electronically. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfies any legal requirement that such communications be in writing.
If any provision of this Agreement is unenforceable, that provision will be changed and interrupted to accomplish the objectives of the provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect.
If you are outside the United States, the laws of your country may be different from those of California and the United States in numerous respects. There is no practical way for us to monitor the laws of every country in detail. You accept sole responsibility for the legality of your actions under laws applying to you.
This Agreement shall inure to benefit and bind the parties hereto, and their successors and assigns, but neither party may assign this Agreement without written consent of the other, except to a related entity or the successor of all or substantially all of the assignor’s business or assets to which this Agreement relates.
This Agreement does not create any joint venture, partnership, agency, or employment relationship between the parties, although CoralTree reserves the right to name you as a user of the Services.
This Agreement is void where prohibited by law, and the right to access and use the Services is revoked in such jurisdictions.
This Agreement represents the entire agreement of the parties and supersedes all prior discussions and/or agreements between the parties and is intended to be the final expression of their Agreement. Except as expressly set forth herein, it shall not be modified or amended except in a writing signed by both parties. If any provision is held by a court of competent jurisdiction to be contrary to law, such provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect.
Except as otherwise specified in this Agreement, all notices, permissions, and approvals hereunder shall be in writing, and shall be deemed to have been given upon: (1) Personal delivery; (2) The second business day after mailing; (3) The second business day after sending by confirmed facsimile; or (4) The first business day after sending by email.
Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services.
We reserve the right, in our sole discretion, to change, modify, add, or remove portions of this Agreement, at any time. It is your responsibility to check this Agreement periodically for changes. The latest version of this Agreement supersedes any previous versions of this Agreement. Your continued use of the Services following the posting of changes will mean that you accept and agree to the changes. If you do not agree to the new terms, you are required to stop using the Services.