TERMS AND CONDITIONS OF USE
Welcome, and thank you for your interest in Positioner, Inc., d/b/a Autoblocks (" Autoblocks") and our service and tools for monitoring and debugging certain AI features (collectively, the " Service"). Please read these Autoblocks Terms and Conditions of Use (the " Agreement") carefully. To sign-up for or purchase a subscription to the Service, you must register for a subscription at app.autoblocks.ai (any online subscription purchase request or registration that is accepted by Autoblocks is hereafter referred to as an " Order"). As part of the registration process, you must identify the applicable entity that is designated as the customer (" Customer"). Each Order will also identify the features and functionality of the Service to be provided to Customer pursuant to such Order and any applicable usage caps or limitations. Autoblocks will not be required, by virtue of this Agreement or otherwise, to provide to Customer any other Service features or functionality which are not expressly covered by an Order. All Orders will be deemed to be a part of this Agreement and are hereby incorporated by reference.
THIS AGREEMENT SETS FORTH THE LEGALLY BINDING CONTRACT BETWEEN AUTOBLOCKS AND CUSTOMER THAT GOVERNS USE OF THE SERVICE. BY CLICKING "I ACCEPT," OR EXECUTING AN ORDER, YOU REPRESENT AND WARRANT THAT YOU: (1) WISH TO USE THE SERVICE ON BEHALF OF, OR WITHIN YOUR CAPACITY AS, A REPRESENTATIVE, AGENT, OR EMPLOYEE OF THE ENTITY THAT IS DESIGNATED AS THE CUSTOMER AT THE TIME OF REGISTRATION, AND THAT YOU ARE NOT USING THE SERVICE IN YOUR PERSONAL CAPACITY OR AS A CONSUMER, AND (2) HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE CUSTOMER. BY CHECKING "I ACCEPT" OR EXECUTING OR SUBMITTING AN ORDER, CUSTOMER IS ACCEPTING AND AGREEING TO BE BOUND BY OF ALL OF THE PROVISIONS OF THIS AGREEMENT.
This Agreement is subject to occasional revision, and Autoblocks reserves the right to modify fees for accessing or using the Service in the future. See Section 7.4 of this Agreement for further information about changes to this Agreement.
- Access and Use of Service. Subject to Customer's ongoing compliance with this Agreement (including timely payment of all applicable fees), Autoblocks grants Customer a non-exclusive, non-transferable right, during the Subscription Term: (i) to access and use the Service in accordance with any applicable usage caps or limitations, and (ii) provided that Customer utilizes the Credentials provided by Autoblocks and complies with any applicable usage limitations and Autoblocks' instructions, to make calls to any application programming interfaces (" APIs") that are made available to Customer by Autoblocks under this Agreement, in each case of (i) and (ii), solely for Customer's internal business purpose and solely in accordance with the published documentation for the Service which is made available at https://docs.autoblocks.ai (" Documentation"). For clarity, while Autoblocks may make the APIs available to Customer to enable Customer to connect and integrate the Service in accordance with the Documentation, Customer will be solely responsible for any and all systems, servers, and/or cloud-hosting environments to which Customer connects the APIs or with which Customer utilizes the APIs (collectively, the " Customer Systems").
- Accounts. As part of the set-up process, Customer may: (i) be asked to create one or more accounts on the Service for itself and its Authorized Users (defined below) (each, an " Account"), (ii) be issued credentials and/or API keys (collectively, " Credentials") for use in connection with the Service, and (iii) provide certain information as prompted in the account registration process. Customer represents and warrants that: (a) all required Account registration information submitted is truthful and accurate; and (b) Customer will maintain the accuracy of such information. Customer is responsible for maintaining the confidentiality of all Account login information and Credentials issued to Customer and is fully responsible for all activities that occur under Customer's and its Authorized Users' Accounts and via Customer's Credentials. Customer will use reasonable efforts to prevent any unauthorized access or use of the Service, Accounts, Credentials and APIs and Customer agrees to immediately notify Autoblocks of any unauthorized use, or suspected unauthorized use, of the Accounts or Credentials or any other breach of security. Additionally, if there is unauthorized access or use by anyone who obtained access directly or indirectly through Customer or its Authorized Users, Customer will also take all steps reasonably necessary to terminate the unauthorized access or use and cooperate and assist with any actions taken by Autoblocks to remediate any issues resulting from, or related to, such unauthorized access or use. Autoblocks will not be liable for any loss or damage arising from any unauthorized use of the Accounts or Credentials or Customer's failure to comply with the above requirements.
- Authorized Users. Customer will only permit the Service, APIs, Credentials and Accounts to be accessed by Customer's employees and contractors that are authorized by Customer to access the Service and APIs for Customer's internal business purposes (" Authorized Users"), provided that Customer shall remain liable for all acts and omissions of such users. Authorized Users may be granted Admin status. " Admins" are users that are granted administrative privileges, such as the ability to invite additional users to access the Service and set access levels and control privileges for Customer's other Authorized Users. Customer is solely responsible for determining which Authorized User(s) should be granted Admin status and for the level of access and privileges granted to its Authorized Users. Customer will ensure its Authorized Users' use of the Service is in compliance with the terms of this Agreement and Customer will be solely responsible for enforcing any of Customer's internal policies regarding its Authorized Users' use of the Service.
- Integration with the Customer Systems. Customer will be solely responsible for integrating and implementing the Service with the Customer Systems. Customer represents and warrants that it has obtained all necessary consents, permissions, approvals, or licenses to access, use and make API calls from the Customer Systems, and to permit Autoblocks to access and use any Customer Data (defined below) for the purpose of performing its obligations and exercising its rights under this Agreement.
- Restrictions. The Service, including any APIs made available to Customer, are made available to Customer solely for its own internal business purpose and use. To the maximum extent permitted by applicable law, Customer shall not, directly or indirectly, and shall not authorize any person to: (i) decompile, disassemble, reverse engineer or attempt to reconstruct or discover any source code, structure, ideas, algorithms, or other hidden or non-public elements of; (ii) translate, adapt, or modify; (iii) write or develop any program based upon; (iv) use in any manner for the purpose of developing, distributing or making accessible products or services that compete with; (v) sell, sublicense, transfer, assign, lease, rent, distribute, or grant a security interest in any rights in, (vi) make the available on a service bureau basis or software as a service basis, or otherwise access or use for the benefit of a third party; (vii) allow unauthorized persons to have access to; (viii) transmit, upload or disseminate any unlawful, infringing or harmful data, content or code, including any virus, adware, spyware, worm or other malicious code, to or from; (ix) copy or replicate; (x) interfere with, disrupt, or create an undue burden on (or violate the regulations, policies or procedures of) any servers or networks connected to; (xi) attempt to gain unauthorized access to, or interfere with or circumvent any security or access control mechanism of; (xii) alter or remove any trademarks or proprietary notices contained in or on; (xiii) use to store or transmit material in violation of third party privacy rights or applicable privacy laws; (xiv) use for any unlawful purpose, in violation of any applicable law or in a manner that could otherwise give rise to civil liability; (xv) perform any fraudulent activity, including impersonating any person or entity, claiming a false affiliation, or accessing any account without permission; (xvi) engage in framing, mirroring, or otherwise simulating the appearance or function of; (xvii) perform or publish any performance or benchmark tests or analyses relating to; or (xviii) otherwise use except as expressly permitted hereunder, in each case of (i) – (xviii), in whole or in part, the Service, APIs, Documentation or any other technology constituting or used to provide the foregoing (collectively, " Autoblocks Technology").
- Service Levels. Each Order will identify any service level agreement and/or support policy that may be applicable to the Service ordered by Customer (" Support Policy"). If the Order does not expressly include a Support Policy, then no Support Policy will apply and Customer's subscription is made available on an "AS IS" basis.
- Pre-Release or Free Trial Access. If Autoblocks has made the Service or any other Autoblocks Technology available to Customer on a "trial" or "pre-release" basis, or otherwise under a free or unpaid subscription tier, then unless expressly indicated in the applicable Order: (i) Autoblocks will be free to terminate or suspend Customer's access thereto for any reason at any time and without liability of any kind, and (ii) no Support Policy will be applicable thereto. Notwithstanding any other provision of this Agreement, any such access is provided on an "AS IS" and "AS AVAILABLE" basis without warranty or support of any kind, express or implied. IF CUSTOMER SUBSEQUENTLY PURCHASES A SUBSCRIPTION, CUSTOMER'S TRIAL ACCESS SHALL IMMEDIATELY TERMINATE AND CUSTOMER EXPRESSLY AGREES THIS AGREEMENT SHALL GOVERN CUSTOMER'S SUBSCRIPTION.
- FEES; PAYMENT
- Subscription Billing and Auto-Renewal. Customer agrees to pay to Autoblocks any fees for the Service that Customer purchases or uses (including any overages based on consumption or usage). Pricing and payment terms will be presented to Customer at the time Customer registers, and may vary based on Customer's chosen package or subscription tier. Subscriptions automatically renew (as further described in Section 3.2 below) and the billing cycle (typically monthly or annually) will be indicated at the time Customer registers for the subscription. The applicable subscription fees for any subsequent billing cycle will be charged at Autoblocks' then-current published list price, until the subscription terminates in accordance with this Agreement. Autoblocks reserves the right to charge Customer for any overages monthly in arrears. Customer will be billed for all amounts due under this Agreement using the billing method Customer selects through its account management page or other Customer-provided payment method on file. Customer must provide current, complete, and accurate information for Customer's billing account and promptly update all information to keep Customer's billing account current, complete, and accurate. Fees paid by Customer are non-refundable, except as provided in this Agreement or when required by law. Customer must terminate any automatically renewing subscription before it renews in accordance with this Agreement in order to avoid billing of the recurring subscription fees to Customer. By choosing an automatically renewing subscription plan, Customer acknowledges that such Service has a recurring payment feature and Customer accepts responsibility for all recurring charges prior to termination. If there are no valid payment methods on file for Customer, Autoblocks may send Customer invoices for the balance of any amounts due.
- Free Trials. Availability of a free trial is not guaranteed and, if one is available, it is only available on the specified terms of the free trial. Eligibility for free trials may vary. Certain limitations may also exist with respect to combining free trials with other offers. If Customer registers for a Service as part of a free trial, Customer's first payment will be charged to Customer's chosen payment method immediately following the free trial, unless cancelled in accordance with the instructions for cancellation below. Customer can cancel a free trial subscription at any time before the end of the free trial. We may also offer, in our sole discretion, promotions subject to promotional terms disclosed during registration. If Customer registers for a subscription at a promotional rate, Autoblocks will begin billing the same payment method Autoblocks otherwise has on-file for Customer's subscription at the then-current, non-promotional price after Customer's promotion ends unless Customer cancels prior to the end of the promotion.
- Taxes. Prices do not include, and Customer must pay or reimburse Autoblocks for, all federal, state, local, sales, use, value added, excise, or other taxes, fees, or duties arising out of this Agreement or the transactions contemplated by this Agreement (other than taxes based on Autoblocks' net income). If Autoblocks has a legal obligation to pay or collect sales tax for which Customer is responsible, Autoblocks will calculate the sales tax based upon the billing information it has about Customer and charge Customer that amount (which, if Customer's billing information is incomplete or inaccurate, may be the highest prevailing rate then in effect), unless Customer timely provides Autoblocks with a valid tax exemption certificate acceptable to the appropriate taxing authority.
- Overdue Amounts. Autoblocks may charge Customer interest on overdue fees at the rate of 1.5% per month (or the highest rate permitted by law, if less) on the amount overdue.
- TERM AND TERMINATION
- Term. This Agreement will start on the date when Customer's first registers for the Service and, unless terminated earlier in accordance with this Agreement, will continue until all of Customer's subscriptions have expired or been terminated for ninety (90) days. Additionally, in the event that all of Customer's subscriptions to the Service have expired or terminated, then either party may terminate this Agreement upon written notice to the other party.
- Subscription Term and Renewals. The duration of Customer's initial subscription term for the Service will be as set forth at the time Customer registers for the Service (" Initial Subscription Term"), and will automatically renew for consecutive subscription terms as disclosed at the time of registration (each, a " Renewal Subscription Term") until terminated or cancelled by Customer or Autoblocks as set forth below. The Initial Subscription Term, together with any applicable Renewal Subscription Term(s), are collectively, the " Subscription Term."
- Termination of Recurring Subscriptions. Free trials may be cancelled as set forth in Section 1.7 above. Unless otherwise set forth at the time of registration, either party may cancel any automatically renewing subscription(s) under this Agreement by providing the other party with at least thirty (30) days' notice of its intent to terminate prior to the end of the then-current Subscription Term. Customer should send notices of termination to email@example.com or canceling through the Billing page, accessible through the Accounts panel. If Customer cancels or Autoblocks terminates a subscription as set forth above, then Customer will continue to have access to the Service until completion of Customer's then-current Subscription Term, provided that Customer has timely paid all applicable fees and remains in compliance with the terms of this Agreement.
- Termination for Cause. Autoblocks may terminate this Agreement and/or any applicable subscription, in whole or in part, by written notice if Customer fails to pay within ten (10) days after notice of nonpayment any amounts owed to Autoblocks. Additionally, ether party may terminate this Agreement and all Orders in the event that: (i) the other party is in material breach of this Agreement, which is not cured within 30 days after written notice of such breach; or (ii) the other party files for or is adjudicated bankrupt or suffers any other analogous event.
- Effect of Termination. Upon the effective date of expiration or termination of this Agreement for any reason: (i) all outstanding subscriptions and access to the Service and APIs will automatically terminate; and (ii) all outstanding payment obligations of Customer become due and payable immediately. All definitions and the following provisions will survive the expiration or termination of this Agreement for any reason: Sections 1.2, 1.4, 1.5, 1.7, 2, 3.5 and 4 through 7.
- Delinquent Accounts; Suspension. Autoblocks reserves the right to suspend or terminate the Service or access to any other Autoblocks Technology in its sole discretion if any amount hereunder is due but unpaid until such time as all amounts due under this Agreement are paid in full. In addition to the amount due, Customer will be charged with fees or charges that are incidental to any chargebacks or collection of any such unpaid amounts including collection fees. Additionally, Autoblocks reserves the right to suspend Customer and/or its Authorized Users' access to the Service, Autoblocks Technology, or any portion thereof at any time: (i) in the event that Autoblocks suspects in good faith that Customer or any of its Authorized Users is using the Service or any Autoblocks Technology in violation of this Agreement, or (ii) if Autoblocks otherwise believes such action is reasonable to comply with any applicable law, regulation or court order.
- LICENSE; OWNERSHIP
- License from Customer. As between the parties, Customer retains its ownership of all right, title and interest in and to any data, information, materials and content that is transmitted by or on behalf of Customer or its Authorized Users to the Service, including without limitation through the APIs (collectively, " Customer Data"); provided that Autoblocks is hereby granted a worldwide, non-exclusive, royalty-free, fully paid-up, sublicensable, irrevocable, right and license to (i) collect, access, process, use, reproduce, transmit, modify and make derivative works of the Customer Data for the purpose of providing the Service to Customer and its Authorized Users during the term of this Agreement, (ii) collect, access, process, and analyze log and other data related to the Service and other Autoblocks Technology and the provision, use and performance and various aspects of the Service and Autoblocks Technology and use such data to troubleshoot, improve and enhance the Service and Autoblocks Technology, and for other development, diagnostic, security and corrective purposes. Although Autoblocks has no obligation to monitor Customer's use of the Service or other Autoblocks Technology, Autoblocks may do so and may prohibit any use it believes may be (or is alleged to be) in violation of this Agreement, applicable laws, or any acceptable use policies identified on the Service or any Documentation thereto.
- Customer Data Restrictions. The Customer Data is the sole responsibility of Customer, including its accuracy, completeness and suitability, and for obtaining all consents required form third parties to allow Autoblocks to access, use and process the Customer Data as set forth herein and to exercise the license rights to Customer Data as set forth in Section 4.1. Customer acknowledges that Autoblocks has no obligation to pre-screen Customer Data, although Autoblocks reserves the right in its sole discretion to pre-screen, refuse or remove any Customer Data from the Service, including if Autoblocks believes it violates this Agreement or is otherwise objectionable. Customer agrees not to provide, and represents and warrants that the Customer Data will not contain: (i) any content or material that is illegal or violates, infringes or misappropriates any third party's intellectual property rights, or constitutes an invasion of privacy or misappropriation of publicity rights; (ii) any content or material that is indecent or obscene; (iii) any computer code, programs, or programming devices that are designed to disrupt, modify, access, delete, damage, deactivate, disable, harm, or otherwise impede in any manner, the operation of the Service or any other associated software, firmware, hardware, computer system, or network (including, without limitation, " Trojan horses ," "viruses," "worms," "time bombs," "time locks," "devices," "traps," "access codes," or "drop dead" or "trap door" devices) or any other harmful, malicious, or hidden procedures, routines or mechanisms that would cause the Service to cease functioning or to damage or corrupt data, storage media, programs, equipment, or communications, or otherwise interfere with operation; or (iv) any content or material that is otherwise objectionable to Autoblocks in its sole discretion
- Ownership. Except for the limited rights granted in this Agreement, Autoblocks hereby retains all right, title and interest, including all intellectual property rights, in and to the Autoblocks Technology. ALL RIGHTS NOT EXPRESSLY GRANTED HEREUNDER ARE RESERVED BY AUTOBLOCKS.
- Feedback. Customer hereby grants to Autoblocks and its affiliates a worldwide, irrevocable, perpetual, sublicensable, royalty-free right and license to use and exploit without restriction all feedback and suggestions provided by Customer and its Authorized Users (collectively, " Feedback"), including, without limitation, any information about operating results, known or suspected bugs, errors or compatibility problems, suggested modifications, and user-desired features, regarding the Autoblocks Technology or any portion thereof.
- Definition of Confidential Information. " Confidential Information" means (i) any information disclosed, directly or indirectly, by one party (" Disclosing Party") to the other party (" Receiving Party") pursuant to this Agreement that is designated as "confidential," or in some other manner to indicate its confidential nature, and (ii) information otherwise reasonably expected to be treated in a confidential nature under the circumstances of disclosure or by the nature of the information itself. Without limiting the foregoing, the non-public features of the Autoblocks Technology (including the APIs) are the Confidential Information of Autoblocks. However, Confidential Information does not include any information which (a) is or becomes generally known and available to the public through no act or omission of the Receiving Party; (b) was already in the Receiving Party's possession at the time of disclosure by the Disclosing Party, as shown by the Receiving Party's contemporaneous records; (c) is lawfully obtained by the Receiving Party from a third party who has the express right to make such disclosure; or (d) is independently developed by the Receiving Party without use of, or reference to, the Disclosing Party's Confidential Information.
- Use and Maintenance of Confidential Information. Neither party shall use the Confidential Information of the other party for any purpose except to exercise its rights and perform its obligations under this Agreement. Neither party shall disclose any Confidential Information of the other party, except to employees of the Receiving Party with a need to know, or to its advisors, or prospective investors or purchasers, each subject to a written obligation of confidentiality. Notwithstanding the foregoing, Autoblocks may disclose Customer Data to (i) Authorized Users as permitted by the features and functionality of the Service, and (ii) to Autoblocks' contractors and service providers (such as Autoblocks' hosting provider) so that these service providers can provide services on Autoblocks' behalf, provided that such service providers are bound by confidentiality obligations. Each party will take reasonable measures to protect the secrecy of, and avoid disclosure and unauthorized use of, the Confidential Information of the other party. A Receiving Party will use reasonable efforts to provide timely notice of compelled disclosure to facilitate confidential treatment of Disclosing Party's Confidential Information, and will furnish only that portion of Confidential Information that it is legally required to disclose, after exercising reasonable efforts to obtain assurance that such information will receive confidential treatment. Autoblocks may list Customer as a customer in its promotional and marketing materials, including its website.
- WARRANTIES; DISCLAIMER; LIMITATION OF LIABILITY
- Customer Warranties; Indemnification. Customer represents, warrants and covenants that it has and will maintain during the term of the Agreement all necessary right, title, interest, authorizations, and permissions to: (i) provide, disclose or submit any Customer Data and/or Feedback that Customer provides, discloses, or submits to Autoblocks or the Service; and (ii) grant the rights and permissions granted hereunder with respect to Feedback and Customer Data. Customer shall indemnify and hold harmless and, at Autoblocks' request, defend, Autoblocks and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (collectively, the " Autoblocks Entities") from and against any third party claim, loss, or damage (including reasonable attorney's fees), arising out of or relating to (i) an allegation that the use by or on behalf of Autoblocks in accordance with this Agreement of any of the Customer Data infringes, misappropriates or violates any third party's rights or violates applicable laws; or (ii) Customer's use of the Service or any Autoblocks Technology in violation of this Agreement. If Autoblocks requires Customer to defend any such claim, Autoblocks will provide all information and assistance reasonably requested by Customer in connection with defense or settlement of any such claim. Notwithstanding the foregoing, Autoblocks will at all times have the option to participate in any matter or litigation, including but not limited to participation through counsel of its own selection, if desired, the hiring of such separate counsel being at Autoblocks' own expense.
- Disclaimer. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT: (i) THE SERVICE AND OTHER AUTOBLOCKS TECHNOLOGY AND ANY OTHER MATERIALS AND CONTENT MADE AVAILABLE BY AUTOBLOCKS OR THROUGH THE SERVICE ARE PROVIDED "AS IS" AND ON AN "AS AVAILABLE" BASIS; (ii) THE AUTOBLOCKS ENTITIES DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, STATUTORY OR IMPLIED, RELATING TO THE SERVICE, OTHER AUTOBLOCKS TECHNOLOGY AND ANY OTHER MATERIALS AND CONTENT MADE AVAILABLE BY AUTOBLOCKS OR THROUGH THE SERVICE, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, NON-INFRINGEMENT, LOSS OF DATA, ACCURACY OF RESULTS, OR ARISING FROM COURSE OF DEALING, USAGE, TRADE OR RELIANCE. THE AUTOBLOCKS ENTITIES DO NOT WARRANT ANY THIRD PARTY WEBSITE CONTENT OR FUNCTIONALITY. TO THE FULLEST EXTENT PERMITTED BY LAW, THE AUTOBLOCKS ENTITIES DO NOT WARRANT THAT THE SERVICE, AUTOBLOCKS TECHNOLOGY OR ANY OTHER MATERIALS, RECOMMENDATIONS OR CONTENT MADE AVAILABLE THROUGH THE AUTOBLOCKS TECHNOLOGY WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. NO ADVICE OR INFORMATION WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER OR ITS AUTHORIZED USERS FROM THE SERVICE OR OTHER AUTOBLOCKS TECHNOLOGY WILL CREATE ANY WARRANTY THAT IS NOT EXPRESSLY STATED IN THIS AGREEMENT. TO THE FULLEST EXTENT PERMITTED BY LAW, THE AUTOBLOCKS ENTITIES ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM CUSTOMER'S OR ITS AUTHORIZED USERS' USE OF OR ACCESS TO THE SERVICE, AUTOBLOCKS TECHNOLOGY OR ANY OTHER MATERIALS OR CONTENT THAT IS MADE AVAILABLE BY AUTOBLOCKS OR THROUGH THE SERVICE OR AUTOBLOCKS TECHNOLOGY. CUSTOMER UNDERSTANDS AND AGREES THAT CUSTOMER'S AND ITS AUTHORIZED USERS' USE OF THE SERVICE, OTHER AUTOBLOCKS TECHNOLOGY AND ANY CONTENT OR MATERIALS THAT ARE ACCESSED, DOWNLOADED, OR OTHERWISE OBTAINED FROM AUTOBLOCKS OR THROUGH THE SERVICE OR OTHER AUTOBLOCKS TECHNOLOGY, INCLUDING WITHOUT LIMITATION ANY THIRD PARTY SERVICES, ARE AT CUSTOMER'S OWN DISCRETION AND RISK, AND THAT, TO THE FULLEST EXTENT PERMITTED BY LAW, THE AUTOBLOCKS ENTITIES ARE NOT RESPONSIBLE FOR ANY DAMAGE TO CUSTOMER'S PROPERTY, INCLUDING ANY CUSTOMER SYSTEMS USED IN CONNECTION WITH THE AUTOBLOCKS TECHNOLOGY OR ANY LOSS OF DATA. NOTWITHSTANDING THE FORGOING THE AUTOBLOCKS ENTITIES DO NOT DISCLAIM ANY WARRANTY OR OTHER RIGHT THAT THE AUTOBLOCKS ENTITIES ARE PROHIBITED FROM DISCLAIMING UNDER APPLICABLE LAW.
- Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE AUTOBLOCKS ENTITIES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, TREBLE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, REVENUE, PROFITS, GOODWILL, DATA OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF OR RELATING TO THIS AGREEMENT, HOWEVER CAUSED AND WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER THEORY OF LIABILITY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE AUTOBLOCKS ENTITIES' TOTAL LIABILITY (INCLUDING ATTORNEYS' FEES) ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNT PAID BY CUSTOMER UNDER THIS AGREEMENT DURING THE 12-MONTH PERIOD PRIOR TO THE DATE THE CLAIM AROSE. EXCEPT FOR ANY ACTION BY AUTOBLOCKS FOR NON-PAYMENT, NEITHER PARTY MAY BRING ANY ACTION, REGARDLESS OF FORM, ARISING OUT OF THIS AGREEMENT MORE THAN 12 MONTHS AFTER THE DATE THE CLAIM AROSE. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED OR EXCLUSIVE REMEDY.
- GENERAL PROVISIONS
- Assignment. Except as expressly set forth in this Agreement, neither party may assign this Agreement, or any of its rights or obligations under this Agreement, without the prior written consent of the other party, except that Autoblocks may assign this Agreement without the written consent of Customer as part of a corporate reorganization or upon a change of control, consolidation, merger, reincorporation, sale of all or substantially all of its assets related to this Agreement or a similar transaction or series of transactions. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties and their respective permitted successors and assigns.
- Force Majeure. Except for the obligation to pay money, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including without limitation an act of war, terrorism, act of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure of the Internet. The delayed party shall give the other party notice of such cause and shall use its reasonable commercial efforts to correct such failure or delay in performance.
- Governing Law. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of California, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Customer hereby expressly consents to the personal jurisdiction and venue in the state and federal courts for Santa Clara County, California for any lawsuit filed there against Customer by Autoblocks arising from or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
- Modifications to this Agreement. Autoblocks may modify this Agreement from time to time by giving notice to Customer through Autoblocks' online user interfaces, by sending Customer an email to the e-mail address last provided to Autoblocks (if any), by prominently posting notice of the changes on the Service, or in any other manner permitted by this Agreement. In the event that the last e-mail address that Customer has provided is not valid, or for any reason is not capable of delivering to Customer the notice described above, Autoblocks' dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Unless a shorter period is specified by Autoblocks (e.g. due to changes in the law or exigent circumstances), the modifications become effective upon renewal of Customer's subscription or entry into a new Order, whichever occurs first. If Autoblocks specifies that the modifications to this Agreement will take effect prior to Customer's next renewal or Order and Customer notifies Autoblocks in writing at firstname.lastname@example.org of Customer's objection to the modifications within thirty (30) days after the date of such notice, Autoblocks (at its option and as Customer's exclusive remedy) will either: (i) permit Customer to continue under the existing version of the Agreement until expiration of the then-current Subscription Term (after which time the modified Agreement will go into effect), or (ii) allow Customer to terminate this Agreement and receive a pro-rata refund of any pre-paid subscription fees allocable to the terminated portion of the applicable Subscription Term. Customer may be required to click to accept or otherwise agree to the modified Agreement in order to continue using the Service and calling the APIs, and, in any event, continued use of the Service or APIs after the modified version of this Agreement becomes effective will constitute Customer's acceptance of such modified version.
- Export Controls; Government Rights. Customer agrees that Customer will not, and will ensure that its Authorized Users will not, directly or indirectly, export or re-export, or knowingly permit the export or re-export of, the Service or any other Autoblocks Technology or any technical information about the Service or Autoblocks Technology to any country for which such export or re-export is restricted by any applicable U.S. regulation or statute, without the prior written consent, if required, of the Bureau of Export Administration of the U.S. Department of Commerce, or such other government entity as may have jurisdiction over such export or re-export. Customer hereby represents and warrants that (a) Customer is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country; and (b) Customer is not listed on any U.S. Government list of prohibited or restricted parties. The Service and other Autoblocks Technology, including the Documentation, is deemed to be "commercial computer software" and "commercial computer software documentation," respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction release, performance, display or disclosure of the software and accompanying documentation by the U.S. Government shall be governed solely by the terms and conditions of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement.
- Miscellaneous. This Agreement (together with the Orders) is the sole agreement of the parties concerning the subject matter hereof, and it supersedes all prior agreements and understandings with respect to said subject matter. In the event of any conflict between the terms of an Order and the terms of this Agreement, the terms of this Agreement will apply unless the Order expressly indicates that a provision of the Order should supersede contrary language in the Agreement. No terms of any purchase order, acknowledgement or other form provided by Customer will modify this Agreement, regardless of any failure of Autoblocks to object to such terms. Any ambiguity in this Agreement shall be interpreted equitably without regard to which party drafted hereof. Except as set forth in Section 7.4, this Agreement may only be amended by a writing signed by both parties. The headings in this Agreement are inserted for convenience and are not intended to affect the interpretation of this Agreement. Any required notice shall be given in writing by customary means with receipt confirmed. Notices to Customer may be sent to any e-mail address or mailing address associated with Customer's Account. Notices to Autoblocks should be given to Positioner, Inc. (196 Willoughby St, #12E, Brooklyn, NY 11201). Either party may substitute its address for notice by providing written notice thereof to the other party. Notices will be deemed to have been given at the time of actual delivery in person, 1 day after delivery to an overnight courtier service, or 3 days after deposit in the mail. The relationship between the parties shall be that of independent contractors. Autoblocks may use subcontractors. Waiver of any term of this Agreement or forbearance to enforce any term by either party shall not constitute a waiver as to any subsequent breach or failure of the same term or a waiver of any other term of this Agreement. Any provision found to be unlawful, unenforceable or void shall be severed from the remainder of this Agreement, and the Agreement will continue in full force and effect without said provision.