THESE TERMS AND CONDITIONS (THE “TERMS”) ARE A LEGAL CONTRACT BETWEEN CBANC NETWORK, INCORPORATED (“COMPANY”, “WE”, “OUR” OR “US”) AND “YOU”. THE TERMS EXPLAIN HOW YOU ARE PERMITTED TO USE THE WEBSITE LOCATED AT THE URL WWW.CBANCNETWORK.COM AS WELL AS ALL ASSOCIATED SITES LINKED TO WWW.CBANCNETWORK.COM BY COMPANY, ITS SUBSIDIARIES AND AFFILIATED COMPANIES (COLLECTIVELY, THE “SITE”) AND THE SERVICES PROVIDED THROUGH THE SITE. BY USING THIS SITE, YOU ARE AGREEING TO ALL THE TERMS; IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, DO NOT ACCESS OR OTHERWISE USE THIS SITE, ANY SERVICES AVAILABLE THROUGH THIS SITE OR ANY INFORMATION CONTAINED ON THIS SITE.
PLEASE NOTE THAT THESE TERMS CONTAIN A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS AND WITH RESPECT TO DISPUTES YOU MAY HAVE WITH COMPANY. YOU MAY OPT OUT OF THE BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER AS PROVIDED BELOW.
I. WHAT WE DO.
We are an online community where banking and credit union professionals can meet and improve their practice by sharing practical knowledge through contributing and trading content related to their work (such as policies, procedures, agreements and best practices from all areas of a bank or credit union), ask and answer questions, review third-party vendors, and provide feedback on recent regulatory examinations. Additionally, we offer ancillary products and services to vendors who sell to banks and credit unions (all of the above collectively, the “Services”).
II. MODIFICATIONS TO THE TERMS AND SERVICES, AND ADDITIONAL TERMS.
Company may make changes to the content offered on the Site or to the Services at any time, without notice. If you object to any changes to the Site or Services, your sole recourse will be to cease using them. Continued use of the Site or Services following posting of any such changes will indicate your acknowledgement of such changes and satisfaction with the Services as so modified. We also reserve the right to discontinue the Site and/or Services at any time without notice. We will not be liable to you or any third-party should we exercise our right to modify or discontinue the Site or the Services.
Company can change, update, or add or remove provisions of these Terms, at any time, by posting the updated Terms on this Site. Company will provide a notice on the Site, and may provide a notice to you via electronic communication and/or upon your first login to the Site after making the changes. By using this Site after Company has updated the Terms, you are agreeing to all the updated Terms; if you do not agree with any of the updated Terms, you must stop using the Site.
In addition, certain features of the Services may be subject to additional terms of use. By using such features, or any part thereof, you agree to be bound by the additional terms of use applicable to such features. In the event that any of the additional terms of use governing such area conflict with these Terms, the additional terms will govern.
III. PRIVACY
In the course or accessing and/or using the Site and the Services, we may obtain information about you or you may be required to provide certain information to us. In certain circumstances we may share such information with unaffiliated third parties or with other Users of the Site and/or Services. All uses of your information will be treated in accordance with our Privacy Policy, which forms an integral part of these Terms. If you use the Services and/or the Site, and/or if you register for any programs or accounts, you are accepting our Privacy Policy, as may be amended from time to time. If you do not agree to have your information used in any of the ways described in the Privacy Policy, you must discontinue use of the Site and the Services.
IV. DEFINITIONS
“Content” means and includes, without limitation, information (personal or otherwise), photos, images, text, comments, writings, notes, presentations, documentation, technical specs, analysis, white papers, and/or any other elements and materials, in any media or format now known or hereinafter devised, whether physical, electronic, digital, analog or otherwise. Content may be owned or controlled by Company (“Company Content”) and/or owned, submitted, uploaded, posted, displayed, or otherwise made available by you as a Member (“Member Content”).
“Feedback” means any information you provide to us about the Site or Services, as a comment or evaluation.
“User” means “you”, the user of the Site, whether you are an unregistered “Visitor” or a “Member.” As a Member you can act as a “Contributor” of Content or as a “Procurer” of Content or you can be a “Vendor”.
V. USERS.
1. Visitors. Visitors may browse the Site in accordance with these Terms, but may not have full access to the Services without first becoming Members.
2. Members. In order to use the Services available to our Members, you are required to set up an account (“Account”) directly with Company. When you set up an Account, you are required to enter a valid email address, which will be your username, and to create a Password of your choosing. In addition we may ask you for your complete name, the name of the financial institution or other entity you work for, your phone number, your address and/or related information as may be necessary to validate your identity (this information collectively “Your Account“). Once you submit your Account registration information, a Company administrator shall have the right to approve or reject the requested registration, in Company’s sole discretion. You agree and understand that Company limits access to its full Services solely to employees of banks, credit unions and similar financial institutions. If you are not an employee or related to the financial services sector, your Account may be restricted for certain Services. As a Member you can act as a Contributor, as a Procurer, as a Vendor (or a combination of two or more of the three) depending on which features and Services you are currently using.
3. Eligibility and Children. By using this Site, you represent, acknowledge and agree that you are at least 18 years of age, or if you are under 18 years of age but are at least 13 years old (a “Minor”), that you are using the Site with the consent of your parent or legal guardian and that you have received your parent’s or legal guardian’s permission to use the Site and agree to its Terms. If you are a parent or legal guardian of a Minor, you hereby agree to bind the Minor to these Terms and to fully indemnify and hold harmless Company if the Minor breaches any of these Terms. If you are not at least 13 years old, you may not use the Site at any time or in any manner or submit any information to the Company or the Site.
VI. USING THE SITE AND THE SERVICES ON THE SITE.
1. No Cost Membership. By registering for an Account with Company, you become a Member with access to certain password-restricted areas of the Site and the ability to use certain Services and Content offered on and through the Site (a “Membership”). Each Membership and the rights and privileges provided to that Member are personal and non-transferable. We currently offer free Memberships with access to Standard Services and paid Memberships with access to Premium Services (as further described below), however we reserve the right to change this policy at any time and start charging for all of our Memberships. Currently, you can cancel your Membership at any time by deleting or disabling your Account.
2. Obligations regarding your Password and Account. As a Member, you are responsible for maintaining the confidentiality of your Password and your Account. You may not transfer to or share your Password/Account with other persons or entities. You are solely responsible for any and all use of Your Account and all activities that occur under or in connection with it. You agree to notify Company if any of your Passwords on this Site is lost, stolen, if you are aware of any unauthorized use of your Passwords on this Site or if you know of any other breach of security in relation to this Site. You agree not to register for an Account on behalf of an individual other than yourself, or register for an Account on behalf of any group or entity unless you are authorized to bind such person, group or entity to these Terms. By registering another person, group or entity you hereby represent that you are authorized to do so. Individuals and/or entities whom access to the Site or use of the Services have previously been terminated by Company may not register for a new account, nor may designate other individuals to use an account on its or your behalf.
You warrant and represent that all information you provide to us as part of your registration is true, accurate, current and complete, and you agree to maintain and promptly update such information to keep it true, accurate, current and complete. If we believe or suspect that such information is untrue, inaccurate, not current or incomplete, we may deny or terminate your access to the Site or Services (or any portion thereof) and any license(s) to Content.
You may change, correct or remove any information from your account by either logging into your Account directly and making the desired changes or by contacting Company using the contact information at the end of these Terms requesting that we make the change.
3. Standard and Premium Services. You agree and understand that your free Membership gives you access to our “Standard Services”, which may include without limitation, uploading, posting, viewing, downloading, rating, commenting on, contributing or otherwise taking any related action on any Member Content or Company Content. Notwithstanding the foregoing, we may offer, from time to time, “Premium Services”, which may be subject to additional costs and/or fees and to additional terms, which shall be provided to you at the time of you contracting for such Premium Services. Company will indicate, on the Site or otherwise, which Services are considered Premium. All sales and payments of Premium Services will be in US Dollars.
3.1 Community Accounts. Certain Premium Services may permit Vendors to purchase and assign special accounts (“Community Accounts”) to Users within their organization. Community Accounts permit their Users to interact with non-Vendor Members and provide answers to questions posed by other Users. Each user of a Community Account is considered a Member and must agree to these Terms before using the Site or any Services. Each Community Account is specific to the email address of only one User and, once granted to that User, may not be transferred or reassigned to any other user unless the User originally granted the license will no longer use the Service. Any such transfer or reassignment is permanent. You agree that you are solely responsible for any and all activities that occur through the use of any Community Accounts that you purchase or have been assigned.
3.2 Answering Questions and Posting Advice. If Vendors have subscribed to applicable Premium Services, such Vendors may post answers to questions posed by other Users and may provide advice for the CBANC community. Please remember that advice and answers should provide useful information to Members, should not be used to promote individual Vendors or their services and should otherwise adhere to our Code of Conduct. The Company may review any or all such submissions and may remove any Content that it believes has been posted in violation of the foregoing. Continued violations of this policy may result in penalties as determined by the Company in its sole discretion. Answers, advice and other Member Content may be packaged into abstract reports that Company and third party companies may access and use for the purposes of improving their consultative services. Your answer is linked to your profile so Members will know that you answered the question.
3.3 Groups. Certain Premium Services may permit you to create or join invitation-only user discussion and content-sharing environments (“Groups”). If you are the creator of a User Group, you may invite other Users to join and may also invite non-Users to become Users and join your group. In either case, you acknowledge that all members of User Groups are Users of the Site and Services and thus are bound by these Terms. Such Users may use any other Services for which they have subscribed and may interact with and receive communications from other Users and the Company.
3.4 Polls. Certain Premium Services permit Users to work with the Company to create and deliver online polls through the Site. The Company shall have the right, in its sole discretion, to reject any poll or question contained in a poll. All polls and polling results shall be the sole and exclusive property of the Company.
4. Purchases. If applicable to your Membership or the Services you use, you agree to pay all fees or charges to your Account based on the Company’s fees, charges, and billing terms in effect at the time, as shown on the Site. If you elect to receive invoices from the Company, Company will invoice you in advance for applicable Services. You agree to pay all invoiced amounts within thirty (30) calendar days of the invoice date. If you do not pay on time or if the Company cannot charge your credit card, or other payment method for any reason, the Company reserves the right to either suspend or terminate your access to the Services, the Site, your Account and/or terminate these Terms. You are expressly agreeing that the Company is permitted to bill you for the applicable fees, any applicable tax and any other charges you may incur in connection with your use of this Site and, if applicable, the fees will be billed to your credit card, or other payment method designated by you. If you cancel your Account at any time, you may not receive any refund. If you have a balance due on any account, you agree that the Company may charge such unpaid fees to your credit card or otherwise bill you for such unpaid fees. We will treat any payment information you may provide to us in accordance with the terms of our Privacy Policy. You are responsible for providing complete and accurate billing and contact information to Company and notifying Company of any changes to such information.
VII. CONTENT AND REVIEWS.
1. License to Company Content. Company provides Content, through the Site and through the Services, that is copyrighted and/or trademarked work of Company or Company’s third-party licensors and suppliers or other users of the Site (collectively, the “Company Content”). Company Content may include logos, graphics, video, images, software and other content. Subject to the terms and conditions of these Terms, and your compliance with these Terms, Company hereby grants you a limited, personal, non-exclusive and non-transferable license to use and to display the Company Content and to use this Site solely for your internal business use (the “Permitted Purpose”). Except for the foregoing license, you have no other rights in the Site or any Company Content and you may not modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit any of the Site or Company Content in any manner. If you make copies Content you must do so only for the Permitted Purpose and you must retain on such copies all copyright and other proprietary notices as they appear on the Content displayed on the Site.
If you breach any of these Terms, the above license will terminate automatically and you must immediately destroy any downloaded or printed Company Content.
2. Member Content. Users may be permitted to upload or post information, material or Content to the Site, including, in the case of Vendors who have subscribed to certain Premium Services, through the creation and use of Vendor-specific web pages (each a Vendor Site) and user groups, and the posting of information to such pages and groups. You are responsible for all information, white papers, presentations, documents, polices, analyses, opinions, messages, comments, photos, videos, graphics, sounds and other content or material that you or anyone to whom you have granted access to a Community Account submits, uploads, posts or otherwise makes available on or through the Site and through the Services available in connection with this Site (collectively “Member Content”), including but not limited to any Content included on your Vendor Site or in any information, advice or answers you make available to other Members. You may not upload, post or otherwise make available on this Site any material protected by copyright, trademark, or any other proprietary right without the express permission of the owner of such copyright, trademark or other proprietary right owned by a third-party, and the burden of determining whether any material is protected by any such right is on you. You shall be solely liable for any damage resulting from any infringement of copyrights, trademarks, proprietary rights, violation of contract, privacy or publicity rights or any other harm resulting from any Member Content that you make, upload or post. You have full responsibility for all Member Content you make, upload or post, including its legality, reliability and appropriateness.
You hereby grant to Company a non-exclusive, perpetual, irrevocable, royalty-free, fully paid-up, worldwide license (including the right to sublicense through multiple tiers) to use, reproduce, process, adapt, reformat, publicly perform, publicly display, modify, prepare derivative works, publish, transmit and distribute your Member Content, or any portion thereof, for purposes of providing the Site and its Services to Users, including but not limited to the development of new features, functionality and offerings to be provided to Users through the Site and Service. We may modify or adapt your Member Contents in order to transmit, display or distribute them over computer networks and in various media and/or make changes to the Member Content as necessary to conform and adapt them to any requirements or limitations of any networks, devices, services or media. Company agrees to use any personally identifiable information contained in any of your Member Content in accordance with Company’s Privacy Policy.
You agree to pay for all royalties, fees, damages and any other monies owing any person by reason of any Member Content posted by you to or through this Site. When you provide Member Content you agree that such Member Content shall not be in violation of the “Unauthorized Activities” Section below.We reserve the right but do not have the obligation to monitor, police or remove any Member Content or other information submitted by you or any other user.
As between Company and you, Content you upload in the Site belongs to you, and not to Company. Company does not claim any ownership rights in your Content. You can remove your Content at any time.
2.1. As a Contributor of Content (a “Contributing Member”), you agree, represent and warrant: (a) that you or your company or institution own or license all intellectual property rights necessary to distribute the Member Content; (b) you and your company or institution accept full responsibility for any copyright infringement, and will indemnify and hold Company and any Procurer harmless from any claims or damages in the event distribution of the Member Content results in copyright infringement; (c) the Member Content is, to the best of your knowledge and ability, relevant and useful relative to the description provided and the categories in which the Member Content is uploaded. Company reserves the right to remove any Content that it has reason to believe may infringe on another entity’s copyright ownership or is detrimental to the best interests of the Members of the network.
2.2. As a Procurer of Content, you agree, understand and covenant that: (a) you are procuring all Content “AS IS”, “WHERE IS”, “WITH ALL FAULTS” and without any implied warranty of any kind or character, including the warranty of merchantability or fitness for a particular purpose; (b) the Content will not be used as a substitute for legal or financial advice; (c) you are responsible for reading, editing, changing the Content so that it fits within your needs before using it and you agree that you may need to search for and replace the logo, watermarks, name, and specific local references of the Contributing Member, if the Member neglected to do so; (d) you are receiving a license to use the Content and do not receive ownership of the Content, therefore you will not, and would not attempt to, resell, transfer, lease or distribute the Content back onto the Site or to sell or transfer the Content to any other third party whether within Company’s Site or outside of Company’s Site; (e) you agree to share back to the Contributing Member any and all improvements you make to the Content at no charge to the Contributing Member; (f) you represent and warrant to Company that, if applicable, you have been authorized by your institution to act on its behalf in the Site and to procure the Content.
2.3. Reviews of Content. When posting reviews, advice or answers in the Site, please note that your comments may not be anonymous, as we may not permit anonymous comments. Your name and institution may be visible to all Members. Please be mindful of this fact when expressing negative feedback about peer Content. We reserve the right to remove any post.
3. Vendor Reviews. As part of the Services you may be allowed to post reviews about Vendors in the financial industry or related industries. Prior to submitting your review, please take into account the following: (a) comments are what add the most value to other Members so please try to write full comments for each question; (b) one word comments, such as “Yes” or “No”, are generally not as helpful as fully commenting on each question; (c) do not include pricing or any other confidential Vendor information; (d) do not take Vendor review content from inside the network and share it in any way, shape or form to any other non-member, including vendors. Vendors may be able to see their own reviews in their own restricted Membership version; and (f) you may not write reviews that (i) reveal information covered by your privacy terms with that vendor, such as confidential pricing information or identifiable personal information; (ii) slander a named person – negative comments are an inevitable part of reviews, but please refrain from giving a specific name that could be personally harmful to that person; (iii) if your institution sells products or service to the financial services industry (e.g., a bank might resell a Remote Deposit Capture product), then you are REQUIRED to notify us about this, so as to permit Company to restrict your access to certain types of reviews.
4. Providing Advice and Posting and Answering Questions. Certain Membership levels and Premium Services may permit Users to provide unsolicited advice or to post and answer questions.
4.1 Posting Questions. In order to protect the privacy of our Members, Company may allow Users to post Questions in the Site anonymously. Company may not have reviewed such questions prior to posting, so to guarantee your anonymity, please make sure not to post any personally identifying information about yourself or your institution.
4.2 Answering Questions and Posting Advice. Non-Vendor Members may post answers to questions posed by other Users and may provide advice for the CBANC community. Please remember that advice and answers should provide useful information to Members and are should not be used to promote individuals or their services. The Company may review any or all such submissions and may remove any Content that it believes has been posted in violation of the foregoing. Continued violations of this policy may result in penalties as determined by the Company in its sole discretion. Answers and advice data may be packaged into abstract reports that third party companies can access for the purposes of improving their consultative services. Your answer is linked to your profile so Members will know that you answered the question.
5. Exam Watch. As part of the Services, Members can anonymously post tips on which topics were hot during regulatory examinations to help other Members prepare for future exams (we call this feature “Exam Watch”). Before adding an Exam Watch, you agree and understand that in order to protect your privacy, your Exam Watch report is posted anonymously. Company does not review content you post, so to guarantee your anonymity, please do not post any personally identifying information about yourself or your institution in your responses. Do not post any personally identifying information or make any personal commentary about your examiner. Exam Watch data may be packaged into abstract reports that third party companies can access for the purposes of improving their consultative services around exam preparations. Please be aware that you are solely responsible for complying with any confidentiality and privacy agreements you may have entered with the organization offering the examination, and any postings you made at Exam Watch are your sole responsibility.
VIII. UNAUTHORIZED ACTIVITIES.
When using this Site and/or the services, you agree not to:
This list of prohibitions provides examples and is not complete or exclusive. Company reserves the right to (a) terminate access to your account, your ability to post to this Site (or use the Services) and (b) refuse, delete or remove any Member Content; with or without cause and with or without notice, for any reason or no reason, or for any action that Company determines is inappropriate or disruptive to this Site or to any other user of this Site and/or Services. Company may report to law enforcement authorities any actions that may be illegal, and any reports it receives of such conduct. When legally required or at Company’s discretion, Company will cooperate with law enforcement agencies in any investigation of alleged illegal activity on this Site or on the Internet.
Unauthorized use of any Content or Third-Party Content contained on this Site may violate certain laws and regulations.
You agree to indemnify and hold Company and its officers, directors, employees, affiliates, agents, licensors, and business partners harmless from and against any and all costs, damages, liabilities, and expenses (including attorneys’ fees and costs of defense) Company or any other indemnified party suffers in relation to, arising from, or for the purpose of avoiding, any claim or demand from a third-party that your use of this Site or the use of this Site by any person using your user name and/or password (including without limitation, your participation in the posting areas or, your Member Content) violates any applicable law or regulation, or the copyrights, trademark rights or other rights of any third-party.
IX. PROPRIETARY RIGHTS.
The names, logos, graphics, images, icons, distinctive features, source identifiers, information, screens, documents, text and other materials displayed on the Site or in the Services, including, site design as well as the arrangement thereof (its “look and feel”), constitute trademarks, tradenames, service marks, trade dress or logos (collectively, “Marks“) of Company and are the sole property of Company. All Marks not owned by Company that may appear on this Site are the property of their respective owners. You are not authorized to use any such Marks. Ownership of all such Marks and the goodwill associated therewith remains with Company or those other entities.
All rights not expressly granted herein are reserved. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner or license.
X. ELECTRONIC COMMUNICATIONS.
By using the Site and/or the Services provided on or through the Site, you consent to receiving electronic communications from Company. These electronic communications may include notices about applicable fees and charges, transactional information and other information concerning or related to the Site and/or Services provided on or through the Site. These electronic communications are part of your relationship with Company. You agree that any notices, agreements, disclosures or other communications that we send you electronically will satisfy any legal communication requirements, including that such communications be in writing.
XI. LINKS TO THIRD-PARTY SITES.
This Site may be linked to other web sites that are not Company sites (collectively, “Third-Party Sites”). Certain areas of the Site may allow you to interact and/or conduct transactions with such Third-Party Sites, and, if applicable, allow you to configure your privacy settings in your Third-Party Site account to permit your activities on this Site to be shared with your contacts in your Third-Party Site account and, in certain situations, you may be transferred to a Third-Party Site through a link but it may appear that you are still on this Site. In any case, you acknowledge and agree that the Third-Party Sites may have different privacy policies and terms and conditions and/or user guides and business practices than Company, and you further acknowledge and agree that your use of such Third-Party Sites is governed by the respective Third-Party Site privacy policy and terms and conditions and/or user guides. You hereby agree to comply with any and all terms and conditions, users guides and privacy policies of any of Third-Party Sites. Company is providing links to the Third-Party Sites to you as a convenience, and Company does not verify, make any representations or take responsibility for such Third-Party Sites, including, without limitation, the truthfulness, accuracy, quality or completeness of the content, services, links displayed and/or any other activities conducted on or through such Third-Party Sites. YOU AGREE THAT COMPANY WILL NOT, UNDER ANY CIRCUMSTANCES, BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY GOODS, SERVICES, INFORMATION, RESOURCES AND/OR CONTENT AVAILABLE ON OR THROUGH ANY THIRD-PARTY SITES AND/OR THIRD-PARTY DEALINGS OR COMMUNICATIONS, OR FOR ANY HARM RELATED THERETO, OR FOR ANY DAMAGES OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH YOUR USE OR RELIANCE ON THE CONTENT OR BUSINESS PRACTICES OF ANY THIRD-PARTY. Any reference on the Site to any product, service, publication, institution, organization of any third-party entity or individual does not constitute or imply Company’s endorsement or recommendation.
XII. INTELLECTUAL PROPERTY INFRINGEMENT.
1. DMCA Notifications for intellectual property infringement.
Company respects the intellectual property rights of others, and we ask you to do the same. Company may, in appropriate circumstances and at our discretion, terminate service and/or access to this Site for users who infringe the intellectual property rights of others. If you believe that your work is the subject of copyright infringement and/or trademark infringement and appears on our Site, please provide Company’s designated agent the following information:
A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Identification of the copyrighted and/or trademarked work claimed to have been infringed, or, if multiple works at a single online site are covered by a single notification, a representative list of such works at that site.
Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled at the Site, and information reasonably sufficient to permit Company to locate the material.
Information reasonably sufficient to permit Company to contact you as the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted.
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 and/or trademark owner, its agent, or the law.
A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Company’s agent for notice of claims of copyright or trademark infringement on this Site can be reached as follows: Legal, CBANC Network, Inc., 4200 N Lamar Blvd Suite 250, Austin, TX 78756.
Please also note that for copyright infringements under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
2. Submitting a DMCA Counter-Notification
We will notify you that we have removed or disabled access to copyright-protected material that you provided, if such removal is pursuant to a valid DMCA take-down notice that we have received. If you receive such notice from us, you may provide us with a counter-notification in writing to Company designated agent that includes all of the following information:
3. Termination of Repeat Infringers
Company reserves the right, in its sole discretion, to terminate the account or access of any user of our web site and/or service who is the subject or repeated DMCA or other infringement notifications.
XIII. DISCLAIMER OF WARRANTIES.
Your use of this Site and/or the Services is at your own risk. The Content has not been verified or authenticated in whole or in part by Company, and it may include inaccuracies or typographical or other errors. Company does not warrant the accuracy of timeliness of the Content contained on this Site. Company has no liability for any errors or omissions in the Content, whether provided by Company, our licensors or suppliers or Members or other users. We may, but are not obligated to, terminate Accounts and/or remove Content from the Site if we determine or suspect that those Accounts or Content violate these Terms. We take no responsibility for your exposure to Content on the Site whether it violates our content policies or not. You understand that the information and opinions in Content uploaded by Members represent solely the thoughts of the author and is neither endorsed by us nor does it necessarily reflect our beliefs.
Neither the information nor any opinion expressed in the Site constitutes an offer by Company or any employee of Company to buy or sell any securities or financial instruments or provide any investment advice or service.
THE SUBMISSION OF ANY PERSONAL INFORMATION AND THE DOWNLOAD OR UPLOAD OF ANY CONTENT THROUGH THE COMPANY SERVICES AND/OR SITE IS DONE AT YOUR OWN DISCRETION AND RISK. COMPANY, FOR ITSELF AND ITS LICENSORS, MAKES NO EXPRESS, IMPLIED OR STATUTORY REPRESENTATIONS, WARRANTIES, OR GUARANTEES IN CONNECTION WITH THIS SITE, THE SERVICES, OR ANY CONTENT RELATING TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THIS SITE, INCLUDING WITHOUT LIMITATION THE CONTENT. UNLESS OTHERWISE EXPLICITLY STATED, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THIS SITE, THE SERVICES, AND CONTENT, AND ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THIS SITE IS PROVIDED TO YOU ON AN “AS IS,” “AS AVAILABLE” AND “WHERE-IS” BASIS WITH NO WARRANTY OF IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. COMPANY DOES NOT PROVIDE ANY WARRANTIES AGAINST VIRUSES, SPYWARE OR MALWARE THAT MAY BE INSTALLED ON YOUR COMPUTER. COMPANY IS NOT THE PROVIDER OF, AND MAKES NO WARRANTIES WITH RESPECT TO, ANY THIRD-PARTY OFFERINGS. COMPANY DOES NOT GUARANTEE THE SECURITY OF ANY INFORMATION TRANSMITTED TO OR FROM THE SITE; AND YOU AGREE TO ASSUME THE SECURITY RISK FOR ANY INFORMATION YOU PROVIDE USING THE SERVICE.
XIV. LIMITATION OF LIABILITY.
COMPANY SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES RESULTING FROM YOUR DISPLAYING, COPYING, OR DOWNLOADING ANY CONTENT TO OR FROM THIS SITE. IN NO EVENT SHALL COMPANY BE LIABLE TO YOU FOR ANY INDIRECT, EXTRAORDINARY, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) HOWEVER ARISING, EVEN IF COMPANY KNOWS THERE IS A POSSIBILITY OF SUCH DAMAGE.
THIS SITE INCLUDES FACTS, VIEWS, OPINIONS AND RECOMMENDATIONS OF INDIVIDUALS AND ORGANIZATIONS. COMPANY AND ITS CONTENT LICENSORS DO NOT ENDORSE, THESE VIEWS, OPINIONS OR RECOMMENDATIONS. NEITHER COMPANY NOR ANY OF ITS AFFILIATES, AGENTS OR LICENSORS SHALL BE LIABLE TO YOU OR ANYONE ELSE FOR ANY DECISION MADE OR ACTION TAKEN BY YOU IN RELIANCE ON SUCH CONTENT OR THIS SITE.
XV. LOCAL LAWS; EXPORT CONTROL.
Company controls and operates this Site from its headquarters in the United States of America and the Content may not be appropriate or available for use in other locations. If you use this Site outside the United States of America, you are responsible for following applicable local laws.
XVI. FEEDBACK.
If you send or transmit any communications, comments, questions, suggestions, or related materials to Company, whether by letter, email, telephone, or otherwise (collectively, “Feedback”), suggesting or recommending changes to the Site, any Services offered through the Site or Content, including, without limitation, new features or functionality relating thereto, all such Feedback is, and will be treated as, non-confidential and non-proprietary. You hereby assign all right, title, and interest in, and Company is free to use, without any attribution or compensation to you, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. You understand and agree that Company is not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and you have no right to compel such use, display, reproduction, or distribution.
XVII. DISPUTE RESOLUTION AND ARBITRATION; CLASS ACTION WAIVER.
Please read this carefully. It affects your rights.
Most customer concerns can be resolved quickly and to a customer’s satisfaction by contacting us at help@cbancnetwork.com. This Provision facilitates the prompt and efficient resolution of any disputes that may arise between you and Company. Arbitration is a form of private dispute resolution in which persons with a dispute waive their rights to file a lawsuit, to proceed in court and to a jury trial, and instead submit their disputes to a neutral third person (or arbitrator) for a binding decision. You have the right to opt-out of this Provision (as explained below), which means you would retain your right to litigate your disputes in a court, either before a judge or jury.
Please read this Provision carefully. It provides that all Disputes between you and Company shall be resolved by binding arbitration. Arbitration replaces the right to go to court. In the absence of this arbitration agreement, you may otherwise have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). Except as otherwise provided, entering into this agreement constitutes a waiver of your right to litigate claims and all opportunity to be heard by a judge or jury. There is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow this agreement and can award the same damages and relief as a court (including attorney’s fees).
For the purpose of this Provision, “Company” means CBANC Network, Inc. and its parents, subsidiary, and affiliate companies, and each of their respective officers, directors, employees, and agents. The term “Dispute” means any dispute, claim, or controversy between you and Company regarding any aspect of your relationship with Company, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Provision (with the exception of the enforceability of the Class Action Waiver clause below). “Dispute” is to be given the broadest possible meaning that will be enforced, and shall include any claims against other parties relating to services or products provided or billed to you (such as Company’s licensors, suppliers, dealers or third-party vendors) whenever you also assert claims against us in the same proceeding.
WE EACH AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.
1. Pre-Arbitration Claim Resolution
For all Disputes, whether pursued in court or arbitration, you must first give Company an opportunity to resolve the Dispute. You must commence this process by mailing written notification to CBANC Network, Inc., 4200 N Lamar Blvd Suite 250, Austin, TX 78756, Tel: 512.583.4570, with a written copy to help@cbancnetwork.com. That written notification must include (1) your name, (2) your address, (3) a written description of your Claim, and (4) a description of the specific relief you seek. If Company does not resolve the Dispute within 45 days after it receives your written notification, you may pursue your Dispute in arbitration. You may pursue your Dispute in a court only under the circumstances described below.
2. Exclusions from Arbitration/Right to Opt Out
Notwithstanding the above, you or Company may choose to pursue a Dispute in court and not by arbitration if (a) the Dispute qualifies, it may be initiated in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THIS AGREEMENT (the “Opt-Out Deadline”). You may opt out of this Provision by mailing written notification to CBANC Network, Inc., 4200 N Lamar Blvd Suite 250, Austin, TX 78756, Tel: 512.583.4570, with a written copy to help@cbancnetwork.com. Your written notification must include (1) your name, (2) your address, and (3) a clear statement that you do not wish to resolve disputes with Company through arbitration. Your decision to opt-out of this Arbitration Provision will have no adverse effect on your relationship with Company. Any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your Dispute in arbitration or small claims court.
3. Arbitration Procedures
If this Provision applies and the Dispute is not resolved as provided above (Pre-Arbitration Claim Resolution) either you or Company may initiate arbitration proceedings. The American Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all Disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration, and shall in no event be commenced as a class arbitration. All issues shall be for the arbitrator to decide, including the scope of this Provision.
For arbitration before AAA, for Disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. In either instance, the AAA’s Optional Rules For Emergency Measures Of Protection shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols For Domestic, Commercial Cases will apply. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267. This Provision governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action procedures or rules apply to the arbitration.
Because the Site and these Terms concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all Disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.
Arbitration Award – The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
Location of Arbitration – You or Company may initiate arbitration in either Austin, Texas or the federal judicial district that includes your billing address. In the event that you select the federal judicial district that includes your billing address, Company may transfer the arbitration to Austin, Texas in the event that it agrees to pay any additional fees or costs you incur as a result of the transfer, as determined by the arbitrator.
Payment of Arbitration Fees and Costs – Company will pay all arbitration filing fees and arbitrator’s costs and expenses upon your written request given prior to the commencement of the arbitration. You are responsible for all additional fees and costs that you incur in the arbitration, including, but not limited to, attorneys or expert witnesses. Fees and costs may be awarded as provided pursuant to applicable law. In addition to any rights to recover fees and costs under applicable law, if you provide notice and negotiate in good faith with Company as provided in the section above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorney’s fees and costs as determined by the arbitrator.
4. Class Action Waiver
Except as otherwise provided in this Provision, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action or private attorney general action) unless both you and Company specifically agree to do so following initiation of the arbitration. If you choose to pursue your Dispute in court by opting out of the Arbitration Provision, as specified above, this Class Action Waiver will not apply to you. Neither you, nor any other user of the Site can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.
5. Jury Waiver
You understand and agree that by entering into this Agreement you and Company are each waiving the right to a jury trial or a trial before a judge in a public court. In the absence of this Provision, you and Company might otherwise have had a right or opportunity to bring Disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that you would have if you went to court, such as the right to appeal and to certain types of discovery, may be more limited or may also be waived.
6. Severability
If any clause within this Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Provision, and the remainder of this Provision will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Provision will be unenforceable and the Dispute will be decided by a court.
7. Survival
This Provision shall survive the termination of your service with Company or its affiliates. Notwithstanding any provision in this Agreement to the contrary, we agree that if Company makes any change to this Provision (other than a change to the Notice Address), you may reject any such change and require Company to adhere to the language in this Provision if a dispute between us arises.
XVIII. GENERAL.
Company prefers to advise you if we feel you are not complying with these Terms and to recommend any necessary corrective action. However, certain violations of these Terms, as determined by Company, may result in immediate termination of your access to this Site without prior notice to you. The Federal Arbitration Act, Texas state law and applicable U.S. federal law, without regard to the choice or conflicts of law provisions, will govern these Terms. Foreign laws do not apply. The United Nations on Contracts for the International Sale of Goods and any laws based on the Uniform Computer Information Transactions Act (UCITA) shall not apply to this Agreement. Except for Disputes subject to arbitration as described above, any disputes relating to these Terms or this Site will be heard in the courts located in Austin, Texas. If any of these Terms is found to be inconsistent with applicable law, then such term shall be interpreted to reflect the intentions of the parties, and no other terms will be modified. Company’s failure to enforce any of these Terms is not a waiver of such term. These Terms are the entire agreement between you and Company and supersede all prior or contemporaneous negotiations, discussions or agreements between you and Company about this Site. The proprietary rights, disclaimer of warranties, representations made by you, indemnities, limitations of liability and general provisions shall survive any termination of these Terms.
XIX. CALIFORNIA CONSUMER NOTICE.
Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: This Site and Service are provided by CBANC Network, Inc., 4200 N Lamar Blvd Suite 250, Austin, TX 78756. Tel: 512.583.4570. If you have a question or complaint regarding the Site or Service, please contact Customer Service at help@cbancnetwork.com. You may also contact us by writing to CBANC Network, Inc., 4200 N Lamar Blvd Suite 250, Austin, TX 78756, Tel: 512.583.4570. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by post at 1625 North Market Blvd., Sacramento, CA 95834 or by telephone at (916) 445-1254 or (800) 952-5210 or Hearing Impaired at TDD (800) 326-2297 or TDD (916) 322-1700.
XX. CONTACT US.
If you have any questions about these Terms or otherwise need to contact Company for any reason, you can reach us at CBANC Network, Inc., 4200 N Lamar Blvd Suite 250, Austin, TX 78756. Tel: 512.583.4570. email: help@cbancnetwork.com.
These Terms and Conditions govern the relationship between an Advertiser (“Advertiser,” “You” or “Your”) and CBANC Network, Inc, a Delaware Corporation (“CBANC” or “We”). By electronically signing below, You agree to be bound by these Terms and Conditions as of the date of Your signature (“Effective Date”).
“CBANC Marketplace” means the online listing service for CBANC Members to review information presented by vendors “Seller Tools” means the online publishing and other tools used by vendors to create and edit listings in the CBANC Marketplace “Basic Listing” means the no-fee company and product listing within the CBANC Marketplace “Paid Services” means any additional marketing services available for purchase from Us and/or actually purchased by You; “Campaign”means multiple Paid Services scheduled in coordination with one another
We will provide You access to the CBANC Marketplace and the ability to claim and edit Your Basic Listing at no charge. Such access is provided to You for the purpose of displaying information about Your company and products to CBANC Members and may be revoked at any time for any reason at Our sole discretion.
You may claim a Marketplace Listing by using the Seller Tools in the CBANC Marketplace. By claiming a Basic Listing, You represent and warrant that you have the authority to grant the license specified in Paragraph 6 herein for all company(ies), brand(s) or product(s) so claimed. We reserve the right to cancel any Basic Listing for any violation of any term of this Agreement.
You may upload and edit text, images and other content to your Basic Listing as permitted by the features of the CBANC Marketplace. You acknowledge that the CBANC Marketplace offers You self-service tools and that We assume no responsibility for such upload or editing.
We may from time to time make Paid Services available to You. You may request such services by submitting an Order Form in a format that We make available to You. Any such Order Form shall specify the Paid Services, the associated fees, and shall incorporate these terms and conditions by reference. We may accept or reject any such Order Form in our sole discretion. In case of any conflict between the terms of this Agreement and an Order Form, the terms of this Agreement shall control.
Subject to these Terms, You hereby grant to Us a revocable, limited, worldwide, non-exclusive license to use, reproduce and display all materials You provide to Us hereunder, including, but not limited to, all content, trademarks and brand features contained therein (“Creative”), solely for purposes of disseminating the Creative and delivering any Campaign for You on and within the parameters specified in any Order Form. You will provide the Creative as mutually agreed, including, but not limited to, in the form or manner of delivery and the required lead-time prior to Campaign delivery. If We reasonably believe any Creative submitted by You is inappropriate or misleading, We reserve the right to refuse to fulfill the Campaign. We are not liable for any delay resulting from Your failure to provide conforming Creative.
Any of Your employees or other representatives desiring access to the CBANC Marketplace must request a free CBANC Network account using an email address on Your domain to access the Marketplace. You are deemed to have authorized Your employees or representative to issue any request for a CBANC Network account we may receive. All such accounts are subject to the terms of this Agreement including the Platform Terms and Conditions: https://www.cbancnetwork.com/support/termsofservice (the “Platform Terms”). The Platform Terms shall govern use of the CBANC Platform; however, these Terms and any associated Order Form(s) shall govern the relationship between You and Us as relates to the Basic Listing and any Paid Advertising Services. You shall be responsible for Your users’ use of the CBANC Platform. CBANC retains all rights in and to the Platform and no implied licenses are granted to the same.
The Order Form shall specify the amount and invoicing terms under which You will pay Us for Paid Services. We shall invoice You as set forth on the Order Form, and You shall pay Us the invoice amount within 30 days of invoice receipt, provided that such invoice is true and correct and not in bona fide dispute. All overdue payments to Us not in bona fide dispute shall accrue interest at a rate of 1.5% or the maximum allowed by law, whichever is less.
These Terms are effective on the Effective Date and continue thereafter until terminated by either party, subject to the limitations herein. Either party may terminate these Terms at any time in the event of a material breach of these Terms by the other party that remains uncured after 30 days written notice thereof. Except for the foregoing or as otherwise expressly provided for in any Order Form, neither party may cancel any Order Form at any time. Upon termination or expiration of these Terms, (a) the licenses granted hereunder shall terminate, and (b) each party shall return to the other party or certify in writing to the other party that it has destroyed all documents and other tangible items that it or its employees, contractors and agents have received or created pertaining, referring or relating to the Confidential Information (as defined in Section 14 below) of the other party.
Each party represents to the other that it has the right to enter into these Terms and perform its obligations hereunder. You represent and warrant to Us that the Creative and Our Delivery of the Paid Services does not and shall not knowingly (i) infringe any intellectual property rights of any third party or violate any third party’s rights of privacy and publicity, (ii) violate any applicable non-intellectual property laws, rules or regulations, (iii) be defamatory, obscene, harmful to minors, fraudulent, misleading or inaccurate, or (iv) contain any viruses or other computer programming routines that are intended to damage or detrimentally interfere with any system, data or personal information.
Each party shall indemnify, defend and hold the other party harmless from and against any and all losses, liabilities, damages, costs and expenses (including reasonable attorneys' fees) by third parties arising out of any claim, suit or proceeding alleging facts which, if true, would constitute a breach of that party’s representations and warranties (as set forth in Section 5). Upon a claim subject to indemnification pursuant to this Section 6, an indemnified party shall: (i) promptly notify the indemnifying party of such claim, suit or proceeding; (ii) allow the indemnifying party sole control of the defense and settlement; and (iii) provide the indemnifying party with reasonable assistance, at the indemnifying party’s expense, in connection with the indemnifying party’s defense and settlement of such claim, suit or proceeding
EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, EACH PARTY EXPRESSLY DISCLAIMS AND EXCLUDES ALL WARRANTIES, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY ASSURANCES OR PROMISES OF ANY LEVEL OF SUCCESS IN CONNECTION WITH ANY CAMPAIGN AND ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
EXCEPT WITH RESPECT TO THE INDEMNIFICATION OBLIGATIONS SET FORTH HEREIN OR A BREACH OF CONFIDENTIALITY, (a) IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES (EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE, ANTICIPATED PROFITS OR LOST BUSINESS, and (b) IN NO EVENT SHALL EITHER PARTY’S TOTAL LIABILITY UNDER THESE TERMS, WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EXCEED THE GREATER OF THE AMOUNTS PAID OR PAYABLE HEREUNDER AND FIVE HUNDRED DOLLARS (USD $500).
The laws of the State of Texas govern all matters arising out of these Terms, without regard to principles of conflicts of law. Any claim or action arising out of or relating to this Agreement shall only be brought in the state or federal courts located in Travis County, Texas, and You consent to the exclusive jurisdiction in such courts.
“Confidential Information” means all non-public information of either party (“Disclosing Party”) that is disclosed to the other party (“Receiving Party”) pursuant to these Terms, in written form and marked “Confidential,” “Proprietary” or similar designation, or if disclosed orally, the Disclosing Party shall indicate that such information is confidential at the time of disclosure and send a written summary of such information to the Receiving Party within 30 days of disclosure and mark such summary “Confidential,” “Proprietary” or similar designation; provided, however, that Confidential Information shall also include all other confidential, proprietary or trade secret information disclosed by the Disclosing Party without such markings that a reasonable person would recognize as such. Confidential Information also includes all summaries or abstracts of Confidential Information. Each party acknowledges that, in the course of the performance of these Terms, it may obtain the Confidential Information of the other party. The Receiving Party shall, at all times both during the Term and thereafter, keep in confidence and trust all of the Disclosing Party’s Confidential Information received by it. The Receiving Party shall not use the Confidential Information of the Disclosing Party other than as expressly permitted under these Terms. The Receiving Party shall take reasonable steps to prevent unauthorized disclosure or use of the Disclosing Party’s Confidential Information and to prevent it from falling into the public domain or into the possession of unauthorized persons, but in no event will the Receiving Party use less than a reasonable degree of care. The Receiving Party shall not disclose Confidential Information of the Disclosing Party to any person or entity other than its officers, employees and consultants who need access to such Confidential Information in order to effect the intent of these Terms and who have entered into confidentiality agreements which protect the Confidential Information of the Disclosing Party sufficient to enable the Receiving Party to comply with this Section 9. The obligations set forth in Section 9 shall not apply to the extent that Confidential Information includes information which is: (a) now or hereafter, through no unauthorized act or failure to act on the Receiving Party’s part, become publicly available; (b) known to the Receiving Party without an obligation of confidentiality at the time the Receiving Party receives the same from the Disclosing Party, as evidenced by its written records; (c) hereafter furnished to the Receiving Party by a third party as a matter of right and without restriction on disclosure; (d) furnished to others by the Disclosing Party without restriction on disclosure; or (e) independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information. Nothing in these Terms shall prevent the Receiving Party from disclosing Confidential Information to the extent the Receiving Party is legally compelled to do so by any governmental investigative or judicial agency pursuant to proceedings over which such agency has jurisdiction; provided, however, that prior to any such disclosure, the Receiving Party shall (i) assert the confidential nature of the Confidential Information to the agency; (ii) immediately notify the Disclosing Party in writing of the agency’s order or request to disclose, if permitted by law; and (iii) cooperate fully with the Disclosing Party, at the Disclosing Party’s expense, in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of the compelled disclosure and protecting its confidentiality.
These Terms constitute the entire understanding and agreement of the parties, and supersede any and all oral or written agreements or understandings between the parties regarding the subject matter contained herein. These Terms may be amended only by a writing (separate from any Order Form) executed by a duly authorized representative of each party. Each party is an independent contractor and not a partner, joint venturer or employee of the other. All notices shall be sent to the addresses or contact information set forth on the Order Form. Except in the event of a merger, acquisition or sale of all or substantially all of a party’s assets to which these Terms relate, neither party may transfer or assign its rights under these Terms without the other party’s prior written consent. Any attempt to do so in contravention of this paragraph is void. Notwithstanding the foregoing, We may subcontract Our obligations under these Terms; provided, however, that We will at all times remain responsible and liable for Our subcontractors' compliance with these Terms. These Terms will bind and inure to the benefit of the parties and their respective successors and permitted assigns. If any provision of these Terms is found to be invalid or unenforceable by a court of competent jurisdiction, such provision shall be severed from the remainder of these Terms, which shall remain in full force and effect, and such invalid or unenforceable provision shall be amended to achieve as closely as possible the economic effect of the original term. The waiver of any breach or default of these Terms will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party. The parties are independent contractors. There is no relationship of agency, partnership, joint venture, employment, or franchise between the parties. Neither party has the authority to bind the other or to incur any obligation on its behalf. The definitions and the rights, duties and obligations of the parties that by their nature continue and survive shall survive termination of these Terms. Each party will have no liability for any failure or delay caused by a force majeure event, including, but not limited to, government action, fire, flood, earthquake, power loss, riot, explosion, embargo, act of terrorism, work slowdown or any other event beyond that party’s reasonable control.
