TERMS AND CONDITIONS OF USE
PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY, AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS AND REMEDIES.
1. General. These Terms and Conditions of Use (the “Terms”) govern the access and use of the website, (the “Website”), which is owned by Collavate, Inc., and the services provided on or through the Website (the “Services”) and the content uploaded by users of the Website and/or Services (the “Content”). Your access or use of the Website, Services and/or Content signifies that you have read, and you understand, acknowledge and agree to be bound by, all of these Terms and any policies related to the Website, Services and/or Content as may be adopted by Collavate from time to time. These Terms define the respective rights and obligations between you, the user of the Website and Services (“you,” “your” or “User”) and Collavate in relation to the Website, the Services and/or Content and your access and use thereof.
2. Accounts. In order to access and use some of the Services, you will have to create an account (an “Account”) with Collavate. You represent and warrant to Collavate that all of the information you submit when you create your Account is accurate, current and complete, and that you will keep your Account information accurate, current and complete. If Collavate has reason to believe that your Account information is untrue, inaccurate, out-of-date or incomplete, Collavate reserves the right, in its sole and absolute discretion, to suspend or terminate your Account. You are solely responsible for the activity that occurs on your Account, whether authorized by you or not, and you must keep your Account information secure, including, without limitation, your customer number/login, password, payment method(s), and PIN. For security purposes, Collavate recommends that you change your password and PIN at least once every six (6) months for each Account you have with Collavate. You must notify Collavate immediately of any breach of security or unauthorized use of your Account. Collavate will not be liable for any loss you incur due to any unauthorized use of your Account.
3. User’s Covenants, Representations and Warranties. The User hereby covenants, represents and warrants to Collavate as follows:
3.1. The User is a legal entity or an individual over the age of 18 years that is capable of entering into binding agreements. If User is a legal entity, then you represent and warrant that you represent and are acting on behalf of the legal entity, and you have the express authority to bind the legal entity to the Terms. User hereby acknowledges and agrees that if Collavate finds that User does not have the legal authority to bind such legal entity, the User will be personally responsible for the obligations contained in these Terms. Collavate shall not be liable for any loss or damage resulting from Collavate’s reliance on any instruction, information, data, notice, document or communication reasonably believed by Collavate to be genuine and originating from an authorized representative of your legal entity. If there is reasonable doubt about the authenticity of any such instruction, information, data, notice, document or communication, Collavate reserves the right (but assumes no duty) to require additional authentication from you. User further acknowledges and agrees that if User is not a legal entity or otherwise able to enter into binding contracts under applicable law, User is not permitted to use the Services, and User hereby covenants and agrees that in that event User will not use the Services.
3.2. The User acknowledges and agrees to comply with all of the terms and conditions set forth in these Terms, all applicable laws, statutes, rules and regulations of any applicable jurisdiction, and any rules and procedures that may be established or adopted by Collavate from time to time (collectively, the “Relevant Rules”). User acknowledges and agrees that any material breach of this Section 3.2 by User may result in immediate suspension or termination of Services at Collavate’s sole discretion.
3.3. The use by the User of the domain name, Website, Services and/or Content shall comply in all materials respects to all Relevant Rules without infringing the legal rights of any third party. If the User becomes aware of any use of a domain name, Website, Services and/or Content that may cause a dispute or claim from a third party, the User shall use his, her or its best efforts to avoid or resolve any such dispute or claim in compliance with the Relevant Rules, these Terms and any policies, rules and procedures that Collavate may establish from time to time.
3.4. The User shall provide to Collavate only information that is complete, correct and accurate. User shall, further, provide to Collavate the User’s most current contact information, which shall be updated by User promptly upon the occurrence of any changes to such contact information. In any event, User is solely responsible for any Content uploaded by User.
3.5. The User shall securely keep and maintain User’s passwords, ID’s, usernames, and any other information for the use of the Services (hereinafter, “User’s Confidential Information”). Collavate shall not be responsible for any loss, misappropriation, or misuse of the User’s Confidential Information.
3.6. The User acknowledges and agrees that User must comply with all Relevant Rules as may be established by regulatory authorities from time to time. The User further acknowledges and agrees that User shall not have nor make any claims of any kind against Collavate in any way related to issues required, prescribed or proscribed by any regulatory authority and the Relevant Rules, or to Collavate’s compliance the Relevant Rules.
3.7. The User acknowledges and agrees that, as a condition prior to the commencement of the Services, Collavate will undertake certain validation tests in order to filter potential fraudulent orders. User further acknowledges and agrees that fully validated Services shall not be provided unless User passes the validation tests.
3.8. Unless Collavate specifically agrees in writing, User will not, and will use commercially reasonable efforts to make sure a third party does not: (a) sell, resell, lease or the functional equivalent, the Services to a third party (unless expressly authorized in this Agreement); (b) attempt to reverse engineer the Services or any component; (c) attempt to create a substitute or similar service through use of, or access to, the Services; (d) use the Services for high risk activities; or (e) use the Services to store or transfer any User Data that is controlled for export under applicable export control laws.
3.9. Except as expressly set forth herein, this Agreement does not grant either party any rights, implied or otherwise, to the other’s content or any of the other’s intellectual property. As between the parties, User owns all Intellectual Property Rights in User’s Data and Collavate owns all Intellectual Property Rights in the Services.
3.10. Collavate may display those User’s trademarks, brands and/or logos within designated areas of the Website. Collavate may also display Collavate’s trademarks, brands and/or logos to indicate that the Services are provided by Collavate. Neither party may display or use the other party’s Brand Features beyond what is allowed in this Agreement without the other party’s prior written consent.
3.11. User agrees that Collavate may include User’s name and/or logo in a list of Collavate customers, online or in promotional materials. User also agrees that Collavate may verbally reference User as a user of the Collavate products or Services that are the subject of these Terms.
4. Collavate’s Registration Policy.
4.1. Collavate shall provide the Services pursuant to these Terms on a “First Come, First Served” basis.
4.2. User’s right to use the Website, Services and/or Content is contingent on User’s compliance with these Terms, the Relevant Rules, and any rules and procedures established by Collavate regarding the use of the Website, the Services and Content.
4.4. Unless otherwise required by the Relevant Rules, Collavate shall not be required to nor be responsible for monitoring or investigating User’s use of the Website, Services, and/or Content, User’s use of its own website, domain name, or any of User’s Content.
5. Service Fees and Payments.
5.1. The prices, fees and payment terms payable by the User for the Services shall be posted by Collavate on its Website. Such prices, fees and payment terms may be changed by Collavate from time to time by posting any such changes on its Website. Collavate will try to provide advance notice of any such change, but regardless of whether or not such notice is timely given, any such changes shall become immediately effective upon posting, unless otherwise stated in the posting on the Website. In principle, the fees shall be payable in advance and are non-refundable, unless otherwise expressly stated in writing.
5.2. Any fees charged by an independent service provider may be passed through to the User provided, that Collavate shall provide User with advance notice of such fees. If User objects to such fees or fails or refuses to make payment therefore, then Collavate may terminate the User’s access to and use of the Website and Services.
5.3. User shall be solely responsible for the timely payment of any applicable fees and for maintaining and renewing User’s domain name registration, and Collavate shall have no responsibility or obligation of any kind or nature with respect thereto. All payments shall be made in U.S. dollars unless otherwise set forth in writing by Collavate.
5.4. All prices and fees are non-refundable once the Services have been initiated by the User’s activation of User’s Collavate account regardless of whether the Services are subsequently suspended, terminated, or transferred prior to the end of the expiration of the registration, provided, however, that such suspension, termination or transfer is not caused by the gross negligence of Collavate.
5.5. Delinquent payments may bear interest at the rate of one-and-one-half percent per month (or the highest rate permitted by law, if less) from the payment due date until paid in full. User will be responsible for all reasonable expenses (including attorneys’ fees) incurred by Collavate in collecting such delinquent amounts except where such delinquent amounts are due to Collavate’s billing inaccuracies.
5.6. User is responsible for any and all taxes related in any way to User’s access and use of the Website, Services and/or Content, and User will pay Collavate for the Services without any reduction for any such taxes. If Collavate is obligated to collect or pay any taxes, such taxes will be invoiced to User unless User provides Collavate with a valid, applicable tax exemption certificate authorized by the appropriate taxing authority. If User is required by law to withhold any taxes from its payments to Collavate, User must provide Collavate with an official tax receipt or other appropriate documentation to support such payments.
6. DISCLAIMER. YOU HEREBY EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR ACCESS AND USE OF THE WEBSITE, SERVICES AND CONTENT ARE AT YOUR OWN RISK. THE WEBSITE, SERVICES AND CONTENT ARE PROVIDED “AS IS” AND, “AS AVAILABLE.” Collavate, ITS OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES AND AGENTS DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. Collavate, ITS OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT (I) THE ACCURACY, COMPLETENESS, OR CONTENT OF THE SERVICES; (II) THE ACCURACY, COMPLETENESS, OR CONTENT OF THE WEBSITE AND ANY WEBSITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THE WEBSITE OR (III) THE SERVICES FOUND AT THE WEBSITE OR ANY WEBSITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THE WEBSITE, AND Collavate ASSUMES NO LIABILITY OR RESPONSIBILITY FOR THE SAME. IN ADDITION, YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT NO ORAL OR WRITTEN INFORMATION OR ADVICE PROVIDED BY Collavate, ITS OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES OR AGENTS (INCLUDING WITHOUT LIMITATION ITS CALL CENTER OR CUSTOMER SERVICE REPRESENTATIVES) WILL (I) CONSTITUTE LEGAL OR FINANCIAL ADVICE OR (II) CREATE A WARRANTY OF ANY KIND WITH RESPECT TO THIS WEBSITE OR THE SERVICES FOUND AT THIS WEBSITE. USER SHOULD NOT RELY ON ANY SUCH INFORMATION OR ADVICE. THE FOREGOING DISCLAIMER OF REPRESENTATIONS AND WARRANTIES SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW, AND SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THESE TERMS OR YOUR USE OF THIS WEBSITE OR THE SERVICES FOUND AT THIS WEBSITE.
8. Term, Suspension and Termination.
8.1. These Terms shall commence and become effective upon User’s first access of the Website and Services and, except for those provisions that are intended to survive the User’s use of the Website, Services and/or Content, will continue to be in full force and effect until the User’s Account with Collavate and User’s use of the Website and Services shall expire or be terminated.
8.2. Collavate may terminate or cancel the Terms and terminate or cancel User’s access to and use of the Website and Services, with or without prior notice to the User, if the User breaches any material term or condition of the Terms or otherwise violates any material provision of the Relevant Rules.
8.3. If Collavate becomes aware of a violation of the Agreement, then Collavate may specifically request that User suspend the applicable account. If User fails to comply with Collavate’s request to suspend the violating account, then Collavate may do so. The duration of any suspension by Collavate will be until the violating account has cured the violation or breach that caused the Suspension.
8.4. Notwithstanding the foregoing, if there is an emergency security Issue, then Collavate may automatically suspend the offending use. Suspension will be to the minimum extent and of the minimum duration required to prevent or resolve the emergency security Issue. If Collavate suspends an account for any reason without prior notice to User, at User’s request, Collavate will provide User the reason for the suspension as soon as is reasonably possible.
8.5. For purposes of this Agreement, the term “emergency security issue” shall mean either: (a) User’s use of the Services in violation of these Terms, which could disrupt: (i) the Services; (ii) other user’s use of the Services; (iii) the Collavate network or servers used to provide the Services; or (b) unauthorized third party access to the Services.
8.6. Collavate will have no obligation to retain any archived User Content or information beyond the retention period specified by User (other than for any legal holds) unless User’s right to use the Services is earlier terminated or expires. If the User does not renew its Account or the Account expires or is terminated, or the User otherwise loses the right to use the Website and Services, Collavate will have no obligation to retain any archived User information.
8.7. At the end of each period for which User has signed up and paid for Services, all of the paid for Services will automatically renew for an additional term of twelven (12) months by default. Customer will pay Collavate the then-current fees for each renewed User Account unless User and Collavate mutually agree otherwise. User may alter the number of end users to be renewed by communicating the appropriate number of accounts to be renewed to Collavate via the Admin Console. If for any reason Collavate does not want the Services to renew, then it will provide User written notice to this effect at least fifteen (15) days prior to the end of the then current Services term. This notice of non-renewal will be effective upon the conclusion of the then current Services term. The automatic renewal feature may be disabled by the User.
8.8 If this Agreement terminates, then: (i) the rights granted by one party to the other will cease immediately (except as set forth in this Section); (ii) Collavate will provide User access to, and the ability to export User’s Content, information and/or data for a commercially reasonable period of time at Collavate’s then-current rates for the applicable Services; (iii) after a commercially reasonable period of time, Collavate will delete Customer Data by removing pointers to it on Collavate’s active servers and overwriting it over time; and (iv) upon request each party will promptly use commercially reasonable efforts to return or destroy all other Confidential Information of the other party.
9. Indemnity. You agree to protect, defend, indemnify and hold harmless Collavate and its officers, directors, employees, representatives and agents, from and against any and all claims, demands, costs, expenses, losses, liabilities and damages of every kind and nature (including, without limitation, reasonable attorneys’ fees) imposed upon or incurred by Collavate directly or indirectly arising from (i) your use of and access to this Website or the Services; (ii) your violation of any provision of these Terms or the policies or agreements which are incorporated herein; (iii) your violation of or noncompliance with any of the terms and conditions of the Relevant Rules; and/or (iv) your violation of any third-party right, including without limitation any intellectual property or other proprietary right. The indemnification obligations under this section shall survive any termination or expiration of these Terms or your use of this Website or the Services.
10. Governing Laws and Dispute Resolution.
10.1. These Terms shall be governed by and construed under the federal laws of the United States of America and the laws of the State of California, whichever may be applicable, without the application of any conflict of law principles.
10.2. You agree that any action relating to or arising out of these Terms shall be brought in the state or federal courts of Santa Clara County, California, and you hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to jurisdiction and venue in the state and federal courts of Santa Clara County, California. You agree to waive the right to trial by jury in any action or proceeding that takes place relating to or arising out of these Terms.
10.3. Any disputes that cannot be resolved amicably between the parties shall be submitted for arbitration under the rules of the American Arbitration Association, as amended, and venue for such arbitration shall be in Santa Clara County, State of California, United States of America.
11. Modifications. User acknowledges and agrees that Collavate, in its sole discretion, may change or modify these Terms, and any policies or agreements which are incorporated herein, at any time, and such changes or modifications shall be effective immediately upon posting to the Website. If you do not agree to be bound by these Terms as last revised, do not use (or continue to use) the Services. Any access or use of the Website, Services and/or Content after changes or modifications are made of the Terms, policies and agreements shall be deemed your acceptance of such changes or modifications.
12. Assignment and Delegation. User may not assign or delegate any of User’s rights, obligations and duties under these Terms without Collavate’s express written consent, which consent may be withheld for any reason or for no reason at Collavate’s sole discretion. Any attempted assignment or delegation shall be deemed invalid, unenforceable and ineffective. Notwithstanding the foregoing, Collavate may in its discretion transfer its rights and obligations under the Terms to any third party upon prior written notice to the User, provided that such transfer is permitted under the Relevant Rules.
13. Severability. If any provision of these Terms is determined to be illegal or unenforceable, that provision shall be deemed severed from these Terms and the other remaining provisions shall remain in full force and effect, and such remaining provisions shall be interpreted as much as legally possible as was originally intended.
14. Notice. Except for changes or modification of the Terms and/or any policies or agreements incorporate herein, which changes and modifications will be posted on the Website, all other notices required under the Terms shall be given in writing sent to, in the case of the User, the email address of record (the latest email address provided to Collavate by the User as User’s contact email), and in the case of Collavate, at info@Collavate.com. Such notice shall be deemed to have been given at the time it is sent or posted as the case may be in accordance with these Terms.
15. Force Majeure. Collavate shall not be liable for any cessation or interruption of Services nor for any losses or damages of any kind or nature resulting from events beyond the control of Collavate, including, but not limited to, acts of God and naturally occurring disasters or conditions, wars, riots, terrorist attacks, cyber virus attacks, hacking, strikes, work stoppages, and government action that prevents or hinders the delivery and/or performance of the Services.
16. Transfer of Data Abroad. If you are accessing the Website and using the Services from a country other than where our servers are located, your communication with Collavate may result in the transfer of information across international borders. By accessing this Website and/or using the Services, you consent to such transfers of information.
17. No Spam Policy. Collavate has a “No Spam” policy, and you acknowledge and agree that Collavate may immediately terminate your account and block you from using any Services in Collavate’s sole discretion if Collavate believes in good faith that you are transmitting or involved with in any way spam or other unsolicited bulk-mail.
18. Successors and Assigns. These Terms shall be binding upon and inure to the benefit of the parties and their respective heirs, successors and assigns.