1.1 Limited License to Use the Service. Subject to the terms and conditions of these Terms of Service, Stimulus hereby grants to End-User a limited, personal, non-exclusive, non-transferable license to participate in the limited Stimulus demonstration of the Service solely for the purpose and to the extent authorized by Stimulus. Except for the limited license rights expressly granted under these Terms of Service, no licenses or rights are granted by Stimulus to End-User hereunder, by implication, estoppel or otherwise. All such other licenses and rights are reserved by Stimulus.
1.2 License Restrictions. End-User shall not, and shall not permit any third party to, access
or use the Service except as expressly authorized by these Terms of Service. For purposes of clarity and without limiting the generality of the foregoing, except as expressly authorized by these Terms of Service, End-User shall not (a) copy, modify, or create derivative works or improvements of the Service; (b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Service to any third party, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service; (c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Service, in whole or in part; (d) bypass or breach any security device or protection used by the Service or access or use the Service other than through his or her own then valid access credentials; (e) input, upload, transmit, or otherwise provide to or through the Service or Stimulus’s systems, any information or materials that are unlawful or injurious, or contain, transmit, or activate any software, devices or other materials that are designed to (i) prevent, impair or otherwise adversely affect the operation of any service, hardware, network, equipment or device, (ii) prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data, or (iii) adversely affect the user experience, including worms, Trojan horses, viruses and other similar devices; or (f) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Service, Stimulus’s systems, or Stimulus’s provision of any products or services to any third party. End-User shall treat the content, features, functionality, underlying algorithms, ideas and data, structure and other proprietary aspects of the Service as confidential information and at all times strictly maintain the confidentiality of the foregoing.
1.3 Third Party Services and Content.
Stimulus shall not be liable or responsible for anythird party or any third-party services, data, content, products, applications, tools, and other materials
(collectively, “Third Party Materials”), or for any loss, damage, injury, malfunction, interruption or claimarising therefrom or related thereto.
2. INTELLECTUAL PROPERTY
2.1 Allocation of Rights. Stimulus and its licensors retain all intellectual property rights inand to the Service and any Third Party Materials (including all related copyrights, patents, service marks, trademarks and other intellectual property rights), including but not limited to any and all updates, enhancements, customizations, revisions, modifications, future releases and any other changes thereto, and all related information, materials and documentation. Except for any rights specifically granted to End-User under these Terms of Service, End-User hereby assigns to Stimulus all other intellectual property rights it may now or hereafter possess in the Service, any related documentation, or any suggestions or other feedback related to the Service or Stimulus’s business that End-User may provide, and all derivative works and improvements thereof, and agrees to execute all documents, and take all actions, that may be reasonably necessary to confirm such rights. End-User also agrees to retain all proprietary marks, legends and patent and copyright notices that appear on the Service or any related documentation delivered or made available to End-User by Stimulus. End-User shall not engage in or authorize any act or omission that would violate, contradict, challenge or limit Stimulus’s intellectual property rights. Nothing contained in these Terms of Service will restrict Stimulus from using any feedback, skills, knowledge, concepts, methodologies, functionalities, processes, techniques or information in intangible form that is gained through the performance of these Terms of Service or access to End-User’s information or materials (collectively, “Residuals”).
All Residuals shall remain the
property of Stimulus.
2.2 End-User Data. “End-User Data” means, collectively, any data, information, access, credentials, instructions, materials or other content that is uploaded or otherwise provided to Stimulus through, or in connection with, the Service by or on behalf of End-User or under End-User’s account. End-User represents, warrants, and covenants to Stimulus that (a) the End-User Data shall at all times be current, accurate, true, lawful, lawfully obtained and complete, shall not infringe or violate any third party rights, and shall, as applicable, be updated by End-User as soon as practicable; and (b) End-User has all rights, consents and authority necessary to provide to Stimulus, and for Stimulus to use as permitted or contemplated under these Terms of Service, the End-User Data and to otherwise facilitate Stimulus’s
3. DISCLAIMERS; LIMITATIONS OF LIABILITY.
3.1 Warranty Disclaimer. EXCEPT FOR ANY WARRANTIES EXPRESSLY SET FORTHIN THIS SECTION, THE SERVICE IS PROVIDED “AS IS” AND, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, STIMULUS DISCLAIMS ANY AND ALL WARRANTIES RELATING TO THE SERVICE, ANY OTHER STIMULUS PRODUCTS OR SERVICES, ANY THIRD PARTY MATERIALS OR ANY OTHER MATTER COVERED BY THESE TERMS OF SERVICE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. STIMULUS DOES NOT PROVIDE LEGAL ADVICE, DOES NOT GUARANTEE ANY PARTICULAR RESULTS AND DOES NOT WARRANT THAT THE SERVICE WILL OPERATE WITHOUT INTERRUPTION, DELAY OR ERRORS OR THAT ANY ERRORS WILL BE CORRECTED. STIMULUS DOES NOT MAKE ANY WARRANTIES OR REPRESENTATIONS AS TO THE ACCURACY OR APPROPRIATENESS OF ANY CONTENT PROCESSED OR AVAILABLE IN CONNECTION WITH THE SERVICE. STIMULUS’S PERFORMANCE SHALL AT ALL TIMES BE CONDITIONED UPON END-USER’S PROPER AND TIMELY (A) PROVISION OF CURRENT, ACCURATE, TRUE, LAWFUL, LAWFULLY OBTAINED AND COMPLETE END-USER DATA; AND (B) PERFORMANCE OF ITS OBLIGATIONS HEREUNDER. Stimulus does not endorse any third party or Third-Party Materials. Stimulus shall not be liable or responsible for any acts or omissions of any third party or for any Third-Party Materials, or for any loss, damage, injury, malfunction, interruption or claim arising therefrom or related thereto. Stimulus reserves the right, at any time, to modify, suspend or discontinue the Service, and End-User agrees that Stimulus shall not be liable for any such action and that the Service may not include any particular functionality or features (regardless of any Stimulus statements or documentation).
3.2 Limitations of Liability. IN NO EVENT SHALL
STIMULUS, ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS, SERVICE PROVIDERS, OR SUPPLIERSBE LIABLE TO END-USER UNDER OR IN CONNECTION WITH THESE TERMS OF SERVICE OR ITS SUBJECT MATTER FOR LOST PROFITS OR BUSINESS, LOSS OF GOODWILL, LOSS OF DATA, INTERRUPTION OF BUSINESS, COST OF REPLACEMENT OR SUBSTITUTE GOODS OR SERVICES, OR FOR ANY EXEMPLARY, PUNITIVE, SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM OR WHETHER SUCH DAMAGES WERE FORESEEABLE. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF STIMULUS, ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS TO END USERS UNDER OR IN CONNECTION WITH
THESE TERMS OF SERVICE OR ITS SUBJECT MATTER, REGARDLESS OF THE BASIS OR THEORY OF ANY CLAIM, EXCEED THE LESSER OF (A) THE FEES PAID BY END-USER TO STIMULUS FOR THE SERVICE FOR THE PERIOD OF SIX (6) MONTHS PRIOR TO THE EVENT
THAT FIRST DIRECTLY GAVE RISE TO THE DAMAGES CLAIMED, OR (B) $500.
3.3. Essential Part of the Bargain. The Parties acknowledge that the disclaimers and limitations set forth in this Section are an essential element of these Terms of Service between the Parties and the Parties would not have entered into these Terms of Service without such disclaimers and limitations.
4. INDEMNIFICATION; UNAUTHORIZED USE
4.1 Indemnification. End-User shall indemnify and hold harmless Stimulus and its affiliates, and each of its and their respective officers, directors, employees, agents, subcontractors, clients, successors, and assigns (each, a “Stimulus Indemnitee”) from any and all liabilities, losses, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees and costs) incurred by such Stimulus Indemnitee in connection with any claims, proceedings or causes of action that arise out of or result from, or are alleged to arise out of or result from, any (a) End-User Data; (b) access to or use of the Service, any other user’s content or any Third Party Materials by End-User or under End-User’s account in violation of any applicable law, regulation or third party terms, policies or agreements; (c) breach by End-User of these Terms of Service; or (d) negligence, gross negligence or willful misconduct by or on behalf of End-User in connection with these Terms of Service.
4.2 Notification of Unauthorized Use. End-User shall promptly notify Stimulus in writing upon its discovery of any unauthorized use or infringement of the Service or the related documentation, or Stimulus’s intellectual property rights with respect thereto. Stimulus shall have the sole and exclusive right to bring any action or proceeding against any third party in relation to any such unauthorized use or infringement, and End-User shall cooperate and provide all reasonable information and assistance to Stimulus and its counsel in connection with any such action or proceeding.
5. TERM AND TERMINATION
. End-User’s access to the Service shall be limited (in scope and duration) to the
particular expressly authorized demonstration by Stimulus and shall be subject to termination in
accordance with these Terms of Service.
5.2 Termination for Convenience. Stimulus may terminate or suspend these Terms of Service, or End-User’s participation in any demonstration, testing or evaluation of the Service, at anytime. End-User may terminate these Terms of Service at any time by cancelling the demonstration (or, as
applicable, its account).
5.3 Effect of Termination. Upon the expiration or termination of these Terms of Service, all license rights of End-User under these Terms of Service shall automatically and immediately cease, and End-User shall promptly cease all use of the Service. Subject to the terms of these Terms of Service (a) the confidentiality and indemnification obligations of the Parties contained herein will survive the
expiration or earlier termination of these Terms of Service; and (b) any provision that, in order to give proper effect to its intent or express terms, should survive such expiration or termination, will survive the expiration or earlier termination of these Terms of Service.
6.1 Export Compliance. The Service may be subject to U.S. and other national export controls and economic sanctions. Individuals or entities owned or controlled, registered in, or related to Cuba, Iran, Sudan, Syria, or North Korea are not permitted to access the Service without prior written permission from Stimulus once granted by the appropriate jurisdiction. The rights and obligations of
End-User shall be subject to such United States laws and regulations as shall from time to time govern the license and delivery of technology abroad by persons subject to the jurisdiction of the United States,
including the Export Administration Act of 1979, as amended, any successor legislation to the Export Administration Act of 1979, and the Export Administration regulations issued by the Department of Commerce, International Trade Administration, Office of Export Administration. End-User shall not, directly or indirectly, export, re-export or transship the Service in such manner as to violate such laws or regulations in effect from time to time.
6.2 Independent Contractors. In making and performing these Terms of Service, the Parties
are acting and shall act as independent contractors. Neither Party is, nor will be deemed to be, an agent,
legal representative, joint venturer or partner of the other Party for any purpose.
6.3 Force Majeure. Stimulus shall not be liable to End-User for failure or delay in performance under these Terms of Service if such failure or delay is caused by riot, flood, earthquake, natural disaster, electronic virus, electronic attack of infiltration, internet disturbance, government act or any other cause beyond Stimulus’s control.
6.4 Governing Law; Jurisdiction
. These Terms of Service shall be governed by and
construed in accordance with the laws of Delaware, excluding its conflict of laws rules. With respect to
any controversy or claim arising out of or in connection with these Terms of Service, Stimulus and End-User hereby irrevocably submit to the exclusive jurisdiction of the state and federal courts located in Delaware; provided, however, that Stimulus shall be entitled to seek equitable relief, at any time and without posting any bond or other security, in any court of competent jurisdiction.
6.5 Assignment. End-User may not assign or otherwise transfer these Terms of Service (or any of its rights or obligations hereunder) to any third party without Stimulus’s prior written consent. Any assignment in derogation of the foregoing is null and void. Stimulus may freely assign or transfer these Terms of Service (or any of its rights or obligations hereunder). These Terms of Service shall inure to the benefit of each party’s successors and permitted assigns.
All notices to either Party shall be (a) in writing and delivered by hand or by certified mail or overnight delivery service to the address set forth by such Party or to such other address as either Party shall give by notice to the other Party; or (b) if Stimulus is providing notice, by email to
the email address associated with End-User’s account or by posting such information to the Service. Notices shall be effective when delivered in accordance with the foregoing. End-User hereby consents to receiving communications from Stimulus electronically in relation to these Terms of Service, the Service
or any other related Stimulus products, offerings or services. Please send any questions, comments or
concerns about the Service to email@example.com
entire agreement between the Parties concerning the subject matter hereof and supersedes all prior
understandings and agreements between the Parties, whether written or oral, regarding the subject matter
. A waiver by either Party of a breach or violation of any provision of these
Terms of Service will not constitute or be construed as a waiver of any subsequent breach or violation of
that provision or as a waiver of any breach or violation of any other provision of these Terms of Service.
6.9 Severability. These Terms of Service are severable, and if any provision of these Terms of Service is, for any reason, finally determined to be invalid, illegal or unenforceable, such provision shall be enforced to the maximum extent legally permissible and such invalidity, illegality, or unenforceability
shall not affect any of the remaining provisions of these Terms of Service.