Please read this End User Agreement carefully. By copying, installing, or using all or any portion of this application (as defined hereinafter), you (hereinafter “the Customer”) accept all the terms and conditions of this End User Licensing Agreement; the Customer agrees that this End User Licensing Agreement is like any written negotiated agreement signed by the Customer. This End User Licensing Agreement is enforceable against the Customer. If the Customer does not agree to the terms of this End User Licensing Agreement, the Customer may not use the application (as defined hereinafter).
The following are terms of a legal agreement between you and GetProfiles (“Website”). By accessing, browsing, or using this Website, you acknowledge that you have read, understood, and agree to be bound by these terms and to comply with all applicable laws and regulations. If you do not agree to these terms, please do not use this Website.
GetProfiles may, without notice to you, at any time revise these Terms and Conditions of Use and any other information contained in this Website by updating these Terms and Conditions of Use. GetProfiles may also make improvements or changes in the services provided by GetProfiles described in this Website at any time without notice.
TABLE OF CONTENTS
1.1. “Application” shall mean the Information tool which contains database of content collected, compiled and organized for the subscription of Services (defined hereinafter) and available on www.getprofiles.net, a website controlled by GetProfiles, wherein, GetProfiles (defined hereinafter) shall provide the Services to the Customer;
1.2. “Agreement” shall mean this End User Licensing Agreement along with all the exhibits, schedules and annexure attached hereinafter;
1.3. “Compatible Computer” shall mean a computer (as defined hereinafter) with the recommended operating system and hardware configuration as may be required for the successful installation of the Application and use and access of the Services pursuant to this Agreement;
1.4. “Computer” shall mean a virtual or physical device that accepts information in digital or similar form and manipulates it for a specific result based on a sequence of instructions, including without limitation desktop computers, laptops, tablets, mobile devices, telecommunication devices, Internet-connected devices, and hardware products capable of operating a wide variety of productivity, entertainment, or other software applications;
1.5. “Customer” shall mean you and / or any legal entity that has obtained the license and / or on whose behalf it is used;
1.6. “Freemium Plan” shall mean any customer using the Free Services in accordance with the terms of this Agreement with limited access to the Application;
1.7. “Information” shall mean the information to be collected, processed and displayed by the Customers as may be specified in the Order (as defined hereinafter) and as may be necessary for the provision of the Services by GetProfiles and no other information whatsoever;
1.8. “Intellectual Property Rights” shall mean all past, present and future rights of the following types, which may exist or be created under the laws of any jurisdiction in the world: (a) any and all copyrights in and to the Application, including but not limited to, source code and object code of the Application, exploitation rights, etc.; (b) patents and industrial property rights; (c) trade secrets; (d) trademarks and trade names; (e) other propriety rights in intellectual property of every kind and nature; and (f) rights in and relating to registrations, renewals, extensions, combinations, divisions and reissues of, and application for, any of the rights referred to in clause (a) to (e) of this Clause;
1.9. “GetProfiles” shall mean GetProfiles providing Services to the Customers in accordance with the terms of this Agreement;
1.10. “Order”shall mean the ordering document specifying the Services (as defined hereinafter), when provided to a Customer on a differential basis from the standard policies of the Company;
1.11. “Services” shall mean the GetProfiles subscription services, content and data services, packaged professional services provided to the Customers, including all linked pages, content, products and offline components of GetProfiles provided by GetProfiles on the Website (defined hereinafter);
1.12. “Subscription Term” shall mean the term of ____ years/months/days of the License (as defined hereinafter) of the application to the Customer;
1.13. “Third-Party Software” shall mean any third-party software that is furnished to the Customer by GetProfiles for use in conjunction with the application, but is licensed to the Customer directly from a third party under the separate terms and conditions set forth under a separate license agreement between the Customer and such third party;
1.14. “Territory” shall mean the territory in which the Application is accessed by the Customer as more particularly set out in Clause 4;
2. GRANT OF LICENSE
2.1. Subject to the Customer’s continuous compliance with the terms of this Agreement and payment of the applicable license fee, GetProfiles grants to the Customer a non-exclusive, non-transferable, non-sublicenseable, limited license (“License”) for the Subscription Term to use the Application and subscribe to the Services provided through the Application. Further, GetProfiles grants to the Customer the right to display the Information for the purpose of the enjoyment of the Services in accordance with the provisions of this Agreement:
2.1.1. In the Territory during the Subscription Term of such License;
2.1.2. Within the scope of the terms of this Agreement and only for the number of users or benefiting audience members identified and as may be absolutely necessary for the use of the Services by the Customer and agreed upon by the Parties ("Authorized Users") and may not be shared with any other persons/entities, either internally or externally unless the same is conveyed to GetProfiles by the Customer while purchasing the Services;
2.1.3. In a manner consistent with the terms of this Agreement.
2.2. An Authorized User is authorized by the Customer to limited access of the Services during the Subscription Term of and according to this Agreement; either online via www.pro.GetProfiles.com or after the Information has been downloaded in accordance with the terms of this Agreement.
2.3. Services are provided by GetProfiles from a data Center facility to which Authorized Users and the Customers have remote accesses via the Internet in conjunction with certain offline components provided by GetProfiles.
2.4. The Customer shall be solely responsible for obtaining and maintaining Compatible Computers and ancillary services needed for the use of the Services. The Customer shall ensure that Computer complies with all configurations and specifications set forth in GetProfiles's published documentation.
2.5. If the Customer is entering into this Agreement on behalf of a company or other legal entity, the Customer represents that the Customer has the authority to bind such entity and its affiliates to the terms of this Agreement, in which case the terms "Customer" or "Customer’s" shall refer to such entity and its affiliates. If the Customer does not have such authority, or if the Customer does not agree with the terms of this Agreement, the Customer must not accept this Agreement and may not use the Services.
2.6. The Customer may not access the Services and/or the Application and/or any part thereof if the Customer is a direct competitor of GetProfiles, except with GetProfiles's prior written consent.
2.7. Subject to the terms of this Agreement, including GetProfiles confidentiality obligations, the Customer hereby grants to GetProfiles a non-exclusive, royalty-free, worldwide license to use the Information for the limited purposes of delivering the Services, responding to Service or technical problems, or, on the Customer’s request, providing training and professional services to the Customer based on the Information as provided by the Customer pursuant to the terms of this Agreement for prevailing the Services of GetProfiles and perform all other acts with respect to the Information as may be necessary for GetProfiles to provide the Services to the Customer. GetProfiles hereby agrees to access and use the Information solely for the benefit of the Customer and as set forth in this Agreement.
2.8. As between GetProfiles and the Customer, the Customer is solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all the Information provided by the Customer pursuant to this Agreement. The Customer shall be solely responsible for keeping the Information up-to-date and GetProfiles shall not be held responsible for any inaccuracy or unreliability or discrepancies in the Information provided by the Customer to GetProfiles.
2.9. The License is for the Customer's internal use only and subject to any restrictions set forth in this Agreement. The Customer will not provide Information, or other Services to any third party whatsoever, whether directly in any media or indirectly through incorporation in a database, marketing list, report or otherwise, or use or permit the use of Information and/or the Application and/or the Services or any part thereof to generate any statistical or other information that is or will be provided to third parties (including as the basis for providing recommendations to others); use or permit the use of Information and/or the Application and/or the Services or any part thereof to prepare any comparison to other information databases that is or will be provided to third parties.
2.10. In the event that GetProfiles delivers Third-Party Software to the Customer for use in connection with the Application and/or the Services, the Customer agrees and acknowledges that such Third-Party Software is not “Application” within the meaning of this Agreement, is not subject to the license grants, warranties, indemnification, or other terms and conditions of this Agreement, and is separately licensed to the Customer by that third party.GetProfiles shall not be responsible for the legality, accuracy, integrity, fitness, reliability, or availability of any Third Party Software or any third party Application's,content or services that the Customer may purchase or connect to or that GetProfiles may deliver, through or with the Services and/ or Application or any descriptions or promises related to the foregoing. The Customer’s agreement to use such Third Party Software shall be solely between the Customer and such third party. If the Customer installs or enables such third party software, content, Application or services for use with the Services or accesses the Services and/or the Application, the Customer acknowledges GetProfiles may access and use the Customer’s data or basic account information as required for provisioning and/or inter-operation of such third party Directories, content or services or such Third Party Software with the Services and/or the Application and/or any part thereof. If the Customer does not want to permit the exchange of the Customer’s data or account information with such third party, the Services shall allow the Customer to restrict such access by not enabling or by un-enabling such Third Party Software or third party Application, content or services for use with the Services and/or the Application and/or any part thereof.
2.11. Notwithstanding the use of the terms “purchase,” “sale”, or any similar terminology in connection with the transaction contemplated by this Agreement, the use of the Application and Services or any part thereof is licensed, not sold. As between the Customer and GetProfiles, except for the non-exclusive licenses expressly granted to the Customer in this section, GetProfiles retains all right, title and interest in and to the Application or the Services or any part thereof (including all algorithms, rules, information, inventions (whether or not patentable), data formats and structures, and processes embodied in the Application/ Services or any part thereof) and all Intellectual Property Rights subsisting therein. There are no implied licenses under this Agreement, and all rights not expressly granted hereunder are reserved to GetProfiles.
2.12. Credits: As of the effective date of the Customer’s cancellation or termination, the Customer will forfeit their Credits. In the event of a technological or system error where the balance of the Customer’s Credits are affected, GetProfiles reserves the right to adjust the Customer’s Credits balance. Moreover, GetProfiles may cancel, suspend or otherwise limit the Customer’s access to their Credits balance if it reasonably suspects fraudulent, abusive or unlawful activity with respect to the Customer account.
2.13. Freemium Plan
2.13.1. If you register for a Freemium Plan, GetProfiles will make one or more of the following Services available to you on a free of charge basis:
2.13.2. Limited content and data services, limited packaged professional services provided to the Customers, including limited access to all linked pages, content, products and offline components of GetProfiles provided by GetProfiles on the Application.
2.13.3. If you use our Free Services, we will make the Free Services available to you free of charge until earlier of (a) the date on which your free subscription is terminated or (b) if the Customer upgrades to premium subscriptions or any of the Services in accordance to the terms of this Agreement and (c) for the period of the Free Services as may be made available by GetProfiles.
2.13.4. Any data you enter into the Services, and any customizations made to the Services by you, during your free subscription period will be permanently lost unless you purchase the same Services inaccordance with the terms of this end user agreement. Notwithstanding Clause 8 of the End User Licensing Agreement (Representations and Warranties), during the free subscription the Services are provided “AS-IS” without any warranty.
2.13.5. You will not use any Services to engage in any unfair or deceptive practices during the term of the free subscription. In the event of any failure on your part to comply with this Clause, GetProfiles shall have the right to terminate your Freemium Plan account without any notice.
2.13.6. You shall not knowingly or wilfully use the Services in any manner that could damage, disable, overburden, impair or otherwise interfere with GetProfiles provision of the Services. You shall be responsible for maintaining the security of the Computers and your account access passwords. You and GetProfiles agree to make every reasonable effort to prevent unauthorized third parties from accessing the Services.
2.13.7. You will not use any trademark, service mark or trade name GetProfiles (including but not limited to the trademarks, service marks, logos, etc. of GetProfiles displayed while availing to the free subscription of the Services by you) or any of GetProfiles affiliated companies or publish any press releases regarding terms and conditions.
2.13.8. You will implement and maintain security measures with respect to the information provided by you for availing the Freemium Plan that effectively restricts access to such information only to you, and protect such information from unauthorized use, alteration, access, publication and distribution. In no event shall such security measures be less restrictive than those that you employ to safeguard your most confidential information. You shall supply GetProfiles with a description of such security measures at GetProfiles request. In the event of an actual or suspected breach of such security measures, you shall notify GetProfiles within twenty four (24) hours.
2.13.9. You own any data, information or material originated by you that you submit, collect or provide in the course of using the Services, including information regarding your social networking “connections, “followers” or other contacts activated through use of the Services during the free subscriptionlan, your credit card details and any other details that may be provided by you for the use of the Services or any part thereof during the free subscription. GetProfiles has no ownership rights in or to your data and information. You shall be solely responsible for the accuracy, quality, content and legality of your data and information, the means by which your data is acquired and the transfer of your data and information to any third party whatsoever.
2.13.10. In no event shall GetProfiles be liable for any consequential, exemplary, special, or incidental damages, including any damages for lost data or lost profits, arising from or relating to these terms and conditions, even if GetProfiles knew or should have known of the possibility of such damages.
3. RESTRICTIONS AND REQUIREMENTS
3.1. The Customer shall not in any event whatsoever exceed the rights with respect to the use of the Services and/or the Application or any part thereof beyond what is granted under this Agreement(“Usage Rights”). In the event the Customer exceeds the Usage Rights, GetProfiles shall notify the Customer and the Customer shall bring its usage within the limits of such Usage Rights. If the Customer fails to do so within 7 (Seven) days of receipt of GetProfiles notice, GetProfiles reserves the right to charge and the Customer agrees to pay GetProfiles's then-current fees for such over-use.
3.2. The Customer will not use any Services and/or the Application or any part thereof to engage in any unfair or deceptive practices. The Customer agrees that it will not use the Application and/or the Services or any part thereof in a manner inconsistent with the terms of this Agreement and for the Subscription Term.
3.3. The Customer shall not, directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation or data related to or provided with the Application and/or the Services available on the Application or any part thereof; (ii) modify, translate, or create derivative works based on the Services or Application; or copy (except for archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or Application;(iii) use or access the Services and/or the or any part thereof to build or support, and/or assist a third party in building or supporting, products or services competitive to GetProfiles; or (iv) remove any proprietary notices or labels from the Services and/or Application. The Customer shall use the Services and Application only for its own internal business operations, and not for the operation of a service bureau or time-sharing service.
3.4. The Customer shall not knowingly or wilfully use the Services and/or the Application or any part thereof in any manner that could damage, disable, overburden, impair or otherwise interfere with GetProfiles's provision of the Services and/or use of the Application. The Customer shall be responsible for maintaining the security of the Computers and the Customer's account access passwords. The Customer and GetProfiles agree to make every reasonable effort to prevent unauthorized third parties from accessing the Services and/or the use of the Application. The Customer shall be liable for all acts and omissions of its Authorized Users.
3.5. GetProfiles may immediately suspend the Customer's License account and access to the Services and/or the Application if the Customer violates any of the terms of this Agreement. Any suspension by GetProfiles of the Services under this Clause shall not relieve the Customer of its payment obligations under the Agreement.
3.6. GetProfiles may make modifications including periodic upgrades or enhancements and changes to the Services and/or Application or any part thereof at any time without notice to the Customer. GetProfiles reserves the right to discontinue offering the Services at the end of the Customer’s Subscription Term.
3.7. The Customer will not rent, lease, sell, sub-license, assign, or transfer its rights in the Application and/or the Services or any part thereof (including without limitation, software obtained through a web download), or authorize any portion of the Application or the Services or any part thereof to be copied onto another individual or legal entity’s Computer except as may be expressly permitted herein.
4.1. The Parties represent and warrant that if the Application is accessed in the United Kingdom, then the Parties have complied with the following provisions, notwithstanding anything stated to the contrary in this Agreement:
4.1.1. The provisions of the Data Protection Act, 1998 related to the processing of personal information as may be amended from time to time;
4.1.2. Pursuant to the Data Protection Act, 1998, the representative of GetProfiles shall be GetProfiles;
4.1.3. The provisions of the Directive 95/46/EC of The European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data as may be amended from time to time.
4.2. The Parties represent and warrant that if the Application is accessed in United States, Canada or Mexico, then the Parties have complied with the following provisions, notwithstanding anything stated to the contrary in this Agreement:
4.2.1. The OECD Guidelines on the Protection of Privacy and Trans-border Flows of Personal Data as may be prescribed from time to time.
4.2.2. The Online Privacy Protection Act of 2003, a California state law, as may be amended from time to time.
4.2.3. US-EU Safe Harbor Framework as made available on http://export.gov/safeharbor/eu/index.asp.
4.2.4. In addition to the OECD guidelines on the Protection of Privacy and Trans-border Flows of Personal Data, the Customer shall comply with applicable local, state and federal laws, rules or regulations related to the collection of personal data and other information of the Customer and privacy policies as may be prescribed from time to time.
4.3. The Parties represent and warrant that if the Application is accessed in any of the member states of the European Union, then the Parties have complied with the following provisions, notwithstanding anything stated to the contrary in this Agreement:
4.3.1 The provisions of the Directive 95/46/EC of The European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data as may be amended from time to time;
4.3.2 In addition to the above mentioned directive, the Customer shall also comply with the provisions of the national, state and/or federal rules, regulations, guidelines, etc. as may be applicable to the respective member states of the European Union.
4.4. The Parties represent and warrant that if the Application is accessed in India, then the Parties have complied with the following provisions, notwithstanding anything stated to the contrary in this Agreement:
4.4.1. The provisions of the Information Technology Act, 2000 related to processing of personal data as may be amended from time to time;
4.4.2. The provisions of the Information Technology (Intermediaries Guidelines) Rules, 2011 as may be amended from time to time;
4.4.3. The provisions of the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011 as may be amended from time to time.
4.5. The Parties represent and warrant that if the Application is accessed in any of the member countries of the Organization for Economic Co-operation and Development (“OECD”), then the Parties have complied with the following provisions, notwithstanding anything stated to the contrary in this Agreement:
4.5.1. The OECD Guidelines on the Protection of Privacy and Trans-border Flows of Personal Data as may be prescribed from time to time.
4.5.2. In addition to the OECD guidelines on the Protection of Privacy and Trans-border Flows of Personal Data, the Customer shall comply with applicable local, state and federal laws, rules or regulations related to the collection of personal data and other information of the Customer and privacy policies as may be prescribed from time to time.
4.6. The Parties represent and warrant that if the Application is accessed in any other territory not mentioned herein above, then the Parties have complied with the provisions of the national, state and/or federal rules, regulations, guidelines, etc. as may be applicable.
4.8. In the event the Customer fails to comply with any of the rules, regulations and/or guidelines mentioned in this Clause and/ or any other rules, regulations and guidelines which need to be complied with in the territory in which the Application is accessed, GetProfiles shall be entitled to discontinue the Services of the Customer without prior notice. Further, the Customer shall indemnify and keep indemnified and hold GetProfiles harmless against any injury, loss, and/or damage to GetProfiles and/or any other customer of GetProfiles and/or any third party whatsoever resulting from such non-compliance.
5. BILLING AND PAYMENT
5.1. The Customer shall pay all fees set forth by GetProfiles for each Service to be provided on the Application. All fees are non-cancellable and non-refundable, except as expressly specified in this Agreement. All fees are exclusive of taxes, levies, or duties imposed by taxing authorities, and the Customer shall be responsible for payment of all such taxes, levies, or duties (excluding taxes based on GetProfiles's income). The Customer shall pay all fees in U.S. Dollars or in such other currency as agreed to in writing by the Parties.
5.2. The Customer will pay GetProfiles by way of a valid credit card; or by way of a cheque drawn in favor of GetProfiles; or by way of a wire transfer to a bank account as designated by GetProfiles and mentioned herein below; or by any other means as may be provided in the Application.
5.3. The Customer will pay any applicable taxes relating to this Agreement, other than taxes based on GetProfiles income and franchise - related taxes.
5.4. Notwithstanding anything to the contrary in this Agreement, all Licenses shall be automatically renewed using the credit card information provided by the Customer on file. The Customer is responsible for updating credit card information when necessary. Declined credit cards will not relieve the Customer of obligations under this Agreement.
6.1. GetProfiles owns or has rights to all Intellectual Property Rights in and to the Services and Application (including all derivatives or improvements thereof). All suggestions, enhancements requests, feedback, recommendations or other input provided by the Customer or any other party relating to the Services or Application shall be owned by GetProfiles, and the Customer hereby does and shall make all assignments and take all reasonable acts necessary to accomplish the foregoing ownership. Any rights not expressly granted herein are reserved by GetProfiles, all other brands, products, or service names are or may be trademarks or service marks of their respective owners.
6.2. The Customer will not use any trademark, service mark or trade name of GetProfiles or any of GetProfiles affiliated companies or publish any press releases regarding this Agreement or any other documents that may be forwarded by GetProfiles for the provision of the Services pursuant to this Agreement. The Customer shall not disclose the negotiated pricing or terms of this Agreement to any third party.
6.3. GetProfiles represents and warrants to the Customer that, to GetProfiles knowledge, the Information, when used in accordance with this Agreement, does not violate any existing, International copyrights, patents, trademarks, or other intellectual property rights of any third party, as from the date of the purchase of the license by the Customer. The foregoing warranty does not apply to the extent the Customer modifies the Information in any way or combines the Information with material from third parties.
6.4. The Customer shall implement and maintain security measures with respect to the Information in the Customer's possession that effectively restrict access to Information only to Authorized Users with a need to know, and protect Information from unauthorized use, alteration, access, publication and distribution. In no event shall such security measures be less restrictive than those the Customer employs to safeguard its most confidential information. The Customer shall supply GetProfiles with a description of such security measures at GetProfiles request. In the event of an actual or suspected breach of such security measures, the Customer shall notify GetProfiles within twenty four (24) hours.
6.5. The Customer owns any data, information or material originated by the Customer that the Customer submits, collects or provides in the course of using the Services, including information regarding the Customer’s social networking “connections” “followers” or other contacts activated through use of the Services, the Customer’s credit card details and any other details that may be provided by the Customer for the use of the Services and/or the Application or any part thereof. GetProfiles has no ownership rights in or to the Customer data and Information. The Customer shall be solely responsible for the accuracy, quality, content and legality of the Customer data and Information, the means by which the Customer data is acquired and the transfer of the Customer data and Information to any third party whatsoever. The Customer data and Information as provided by the Customer shall be deemed to be the Customer Confidential Information pursuant to Section 10 of this Agreement.
7.1. Except to the extent expressly set forth above in this Agreement, the Application and the Services or any part thereof are provided on an “AS IS” basis, and GetProfiles expressly disclaims all representations and warranties and conditions with respect to all materials provided under this Agreement, whether implied, express, or statutory, including the implied warranties of merchantability, fitness for a particular purpose, title, non-infringement of third-party rights, quiet enjoyment, and accuracy. GetProfiles does not warrant that the Application will in every case process all data correctly, or that operation of the Application will be error-free or uninterrupted.
8. REPRESENTATIONS AND WARRANTIES
8.1. Each party represents and warrants to the other Party that it has the power and authority to enter into the Agreement.
8.2. GetProfiles warrants to the Customer that it will use best efforts to (a) perform the Services substantially in accordance with its documentation under normal use; and (b) provide the Services in a manner consistent with generally accepted industry standards. The Customer must notify GetProfiles of any warranty deficiencies within thirty (30) days from performance of the relevant Services in order to receive warranty remedies.
8.3. For breach of the express warranty set forth above, the Customer's exclusive remedy shall be the re-performance of the deficient Services. If GetProfiles cannot re-perform such deficient Services as warranted, the Customer shall be entitled to recover a pro-rata portion of the fees paid to GetProfiles for such deficient Services pursuant to this Agreement, and such refund shall be GetProfiles's entire liability. The Customer shall not be entitled to any other remedy against GetProfiles whatsoever.
8.4. The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, or because of other causes beyond GetProfiles's reasonable control, but GetProfiles shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled unavailability of the Services.
9. LIMITATION OF LIABILITY
9.1. In no event shall GetProfiles be liable for any consequential, exemplary, special, or incidental damages, including any damages for lost data or lost profits, arising from or relating to this Agreement, even if GetProfiles knew or should have known of the possibility of such damages.
9.2. The Parties acknowledge that the terms of this Clause (limitation of liability) reflect the allocation of risk set forth in this Agreement and that the Parties would not enter into this Agreement without these limitations of liability. The total cumulative liability with respect to the Agreement, for GetProfiles, shall not exceed the aggregate amount paid to GetProfiles by the Customer pursuant to this Agreement. Any claims will be brought, in accordance with this Agreement, within twelve (12) months of the first occurrence giving rise to such claims, or such claims will be forever barred.
9.3. The Application and/or the Services or any part thereof are not intended for use in connection with any nuclear, aviation, mass transit, or medical application or any other inherently dangerous application that could result in death, personal injury, catastrophic damage, or mass destruction, and the Customer agrees that GetProfiles will have no liability of any nature as a result of any such use of the Application or the Services or any part thereof.
10. CONFIDENTIAL INFORMATION
10.1. It is agreed by and between the Parties that during the course of this Agreement GetProfiles may disclose information to the Customer relating to GetProfiles business and/ or the business of GetProfiles family of companies (hereinafter referred to as "Confidential Information"). Such Confidential Information includes, without limitation, information related to this Agreement, information related to GetProfiles other customers and any and all other information related GetProfiles business and the services provided by GetProfiles, information related to the Customer's login identifiers and credentials for the Customer’s accounts. The Customer agrees: (i) to take reasonable precautions to protect such Confidential Information; and (ii) not to use (except as expressly permitted pursuant to the terms of this Agreement and for the purpose of provision of the Services by GetProfiles) or divulge to any third person/party any such Confidential Information. Notwithstanding the foregoing, the following information shall not be construed as Confidential Information, if such information (a) is or becomes generally available to the public; or (b) was in the Customer’s possession or known by the Customer prior to receipt of such information GetProfiles; or (c) was rightfully disclosed to the Customer by a third party; or (d) was independently developed without use of any Confidential Information of GetProfiles; or (e) is required by law. Confidential Information will be destroyed, and, upon GetProfiles request, the Customer shall certify to such destruction in writing.
10.2. Notwithstanding anything else in the Agreement or otherwise, GetProfiles may monitor the Customer’s use of the Services and use the Customer’s data and Information in an aggregate and anonymous manner, compile statistical and performance information related to the provision and operation of the Services, and may make such information publicly available, provided that such information does not incorporate the Customer data or Information and/or identify the Customer's Confidential Information. GetProfiles retains all Intellectual Property Rights in such information.
10.3. GetProfiles may share the Customer identifying information with third parties with whom the Customer has an existing business relationship including communications to users, processing of payments, and other actions required for the operation of the Application.
10.4. The Parties have mutually agreed that the provisions of this Clause shall subsist post the termination or expiry of this Agreement.
11.1. During the term of this Agreement and for a period of three (3) years thereafter, the Customer will maintain complete and accurate written records of its activities conducted under this Agreement. During such period, GetProfiles will have the right, during normal business hours and upon at least ten (10) business days’ prior written notice, to inspect the Customer’s facilities including but not limited to the Computers on which the Application is being used and the Information is being stored, used and processed and audit the Customer’s records relating to the Customer’s activities pursuant to this Agreement in order to verify that the Customer has paid to GetProfiles the correct amounts owed under this Agreement, complied with the usage parameters and restrictions in the Agreement, and otherwise complied with the terms of this Agreement. In the course of conducting the audit, GetProfiles will abide by the Customer’s reasonable standard site access rules and regulations, and will take steps to minimize any disruption to the normal conduct of the Customer’s business. The audit will be conducted at the expense of GetProfiles, unless the audit reveals that the Customer has underpaid the amounts owed to GetProfiles or materially failed to comply with the usage parameters and restrictions or the terms of this Agreement, in which case the Customer will reimburse GetProfiles for all reasonable costs and expenses incurred by GetProfiles in connection with such audit. The Customer will promptly pay to GetProfiles any amounts shown by any such audit to be owing, plus the applicable late fees.
12.1. Independent Contractors. The parties are and at all times will be and remain independent contractors as to each other, and at no time will either party be deemed to be the agent or employee of the other. No joint venture, partnership, agency, or other relationship will be created or implied as a result of this Agreement. Except as expressly set forth in this Agreement, each party will bear full and sole responsibility for its own expenses, liabilities, and costs of operation, and each party will be solely responsible for payment of all compensation owed to its staff assigned to perform work under this Agreement, including payment (if any) of employment-related taxes and workers’ compensation insurance. Furthermore, neither party will have the authority to, and will not purport to, enter into any contract or commitment on behalf of the other party.
12.2. Force Majeure. Neither party shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 20 days, either party may cancel unperformed Services upon written notice.This section does not excuse either party of its obligations to take reasonable steps to follow its normal disaster recovery procedures or the Customer's obligation to pay for the Services provided.
12.3. Any disputes arising with respect to this agreement shall be governed by and construed in accordance with the laws of the State of Delaware. The arbitrator shall be selected by joint agreement of the parties. In the event the parties cannot agree on an arbitrator within thirty (30) days of the initiating party providing the other party with written notice that it plans to seek arbitration, the parties shall each select an arbitrator, which arbitrators shall jointly select a third such arbitrator to resolve the dispute. The written decision of the arbitrator shall be final and binding on the parties and enforceable in any court. The arbitration proceeding shall take place in the State of Delaware and the federal courts of the United States of America.
12.4. Assignment. The Customer may not assign this Agreement (whether expressly, by implication, or by operation of law, including in connection with any merger or sale of assets or business), or delegate its performance under this Agreement, to any third party without obtaining GetProfiles prior written consent. GetProfiles may assign this Agreement upon written notice to the Customer. Any purported transfer, assignment, or delegation without the appropriate prior written consent will be null and void when attempted and of no force or effect. Subject to the foregoing, this Agreement will bind and inure to the benefit of the successors and permitted assigns of GetProfiles and the Customer.
12.5. Notices. Any notices or other communications required hereunder shall be in writing and shall be deemed given when delivered in person or when mailed, by certified or registered first class mail, postage prepaid, return receipt requested, addressed to the parties at their addresses specified in this Agreement.
If to GetProfiles: Att: Business Manager
2885 Sanford Ave
SW #36202, Grandville, MI 49418
Phone: +1 616 828 5277
12.6. Waivers; Amendment. No waiver of any terms or conditions of this Agreement will be valid or binding on a party unless such party makes the waiver in writing. The failure of one party to enforce any of the provisions of this Agreement, or the failure to require at any time the performance of the other party of any of the provisions of this Agreement, will in no way be construed to be a present or future waiver of such provisions, nor in any way affect the ability of a party to enforce each and every provision thereafter. This Agreement may not be altered, amended, modified, or otherwise changed in any way except by a written instrument signed by the authorized representatives of each party.
12.7. Severability. If any provision of this Agreement is found or held to be invalid or unenforceable by any tribunal of competent jurisdiction, then the meaning of such provision will be construed, to the extent feasible, so as to render the provision enforceable, and if no feasible interpretation would save such provision, it will be severed from the remainder of this Agreement, which will remain in full force and effect.
12.8. Construction. The headings of sections of this Agreement are included solely for convenience of reference and are not to be used to interpret, construe, define, or describe the scope of any aspect of this Agreement. As used in this Agreement, the word “including” means “including but not limited to.” Each party represents that it has had the opportunity to participate in the preparation of this Agreement, and any rule of construction to the effect that ambiguities are to be resolved against the drafting party will not be applied in connection with the construction or interpretation of this Agreement. For purposes of this Agreement, the word “will”will be equivalent in meaning to the word “shall,” both of which describe an act or forbearance which is mandatory under this Agreement. The word “may” describes an act or forbearance which is optional under this Agreement. Unless otherwise expressly stated to the contrary herein, all consents and approvals of either party referenced in this Agreement may be granted or withheld in such party’s sole and absolute discretion. Unless otherwise expressly stated to the contrary herein, all remedies are cumulative, and the exercise of any express remedy by either party herein does not by itself waive such party’s right to exercise its other rights and remedies available at law or in equity. This Agreement is prepared and executed in the English language, and any translation into any other language shall have no effect upon its construction and interpretation.
12.9. Entire Agreement. This Agreement, including all of its attached exhibits, constitutes the entire agreement and final understanding of the parties with respect to the subject matter hereof, and supersedes any other and all prior or contemporaneous negotiations, representations, understandings, discussions, offers, and agreements between the parties, whether written or oral, express or implied, relating in any way to the subject matter hereof. This Agreement is intended by the parties to be a complete and wholly integrated expression of their understanding and agreement. Notwithstanding the foregoing, if the parties previously entered into a confidentiality agreement, the terms and conditions of such confidentiality agreement will continue to govern any confidential information (as defined in such confidentiality agreement) that is exchanged between the parties in connection with this Agreement.