Terms of use
Last updated: August 23, 2024
WHEREAS : A. Attentive Inc. (“Attentive”, “we”, “us” or “our”) through its Site, Products, Services and Deliverables (all defined below) detailed herein inter alia provide the user with the requested information about identified real-estate properties or geographical locations; B. The user of theSite, recipient of the Services (“you” or “user”), through accessing the Site and/or by executing aQuote (as defined below) and/or opening an account with us, has expressed an interest in accessing Attentive’s Site and services in accordance with the Agreement (as defined below); C. We agree to give access to our Site and provide services detailed in the Standard Agreement(“Standard Agreement”) and any other quote (“Quote”) that may be entered into between you and us (each a “Party” and collectively, “Parties”), which together make up the legal agreement between Attentive and the user. In case of any conflict between this Standard Agreement and the Quote, the Quote shall prevail.
1. BINDING AGREEMENT
1.1. The Standard Agreement, along with Quote (if any) (“Agreement”), constitutes a legally binding agreement made between the Parties concerning: (i) your access to and use of AttentiveAI’s websites (e.g., https://attentive.ai, http://app.attentive.ai/, and other websites through which we may provide you with Product, Report, Services and Deliverables (all defined below)),any other media form, media channel, mobile website or mobile application related, linked, otherwise connected thereto (collectively, the “Site”); (ii) tools, products, solutions or customizations provided to you by us through the Site (“Product(s)”); and (iii) customized services being availed by you (“Services”) and the associated work products created as a result of theServices (“Deliverables”) in accordance with the Quote entered into between the Parties.
1.2. Our Site, Products and Deliverables inter alia provide you information with the requested information about identified real-estate properties or geographical locations (information about each individual property or location referred to as a “Report”). You agree that by accessing theSite, Products or availing the Services, you have read, understood, and agree to be bound by all of the Agreement. If you do not agree with all of the Agreement, then you are expressly prohibited from using the Site, Products, Services and Deliverables and you must discontinue any use immediately.
1.3. Any additional conditions, policies, API guidelines or supplemental terms that we make available to you or on the Site are hereby expressly incorporated herein by reference and will be governed by the Standard Agreement (to the extent applicable). We reserve the right, in our sole discretion, to make changes or modifications to the Standard Agreement at any time and for any reason. The Quote shall be amended on mutual agreement of both Parties. We will alert you about any changes by updating the “Last updated” date of the Standard Agreement and all rights and obligations that may have arisen in the past will be governed by the amended StandardAgreement, and you waive any right to receive specific notice of each such change. It is your responsibility to periodically review the Standard Agreement to stay informed of updates. You will be subject to, and will be deemed to have been made aware of and to have accepted, the changes in any revised Standard Agreement by your continued use of the Site after the date such revised Standard Agreement are posted.
1.4. The information provided on the Site (along with the terms of our Privacy Policy) and theProducts, Deliverables, and any services provided under the Agreement is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject us to any registration requirement within such jurisdiction or country. Accordingly, those persons who choose to access the Site or avail Services or use the Deliverables from other locations do so on their own initiative and are solely responsible for compliance with local laws, if and to the extent local laws are applicable and we specifically exclude any liability that may be incurred on account of such access to the Site.
1.5. The Site is intended for users who are at least 18 years old. Persons under the age of 18 are not permitted to use or register for the Site.
2. INTELLECTUAL PROPERTY RIGHTS
2.1. Unless specifically provided for otherwise, the Site, Products, add-ons (if any) andDeliverables (collectively, “SP&D”) are our proprietary property and all information, customizations, Reports, source code, algorithms, databases, functionality, software, website designs, audio, video, text, photographs, and graphics on the SP&D (collectively, the “Content”)and the trademarks, service marks, and logos contained therein (the “Marks”) are owned or controlled by us or have been licensed to us, and are protected by copyright and trademark laws and various other intellectual property rights and anti-trust laws of the United States, foreign jurisdictions, and international conventions.
2.2. Subject to the terms detailed herein, if you are provided with any Deliverable or Report, you are granted a perpetual, irrevocable, non-exclusive, not for resale, worldwide, royalty free, fully paid up license to use, make, execute, reproduce, display, prepare derivative works based upon (other than through machine learning), and distribute (internally) copies of theDeliverables/Reports. You are prohibited from sub- licensing the intellectual property embedded in the Deliverables/Reports or selling copies of the Deliverables/Reports in any form to any other party.
2.3. Please also note that any derivative data generated as a part of providing our Products to you and/or your access to the Site will be solely and entirely owned by us and to this extent you waive any right (legal or moral) to such derivative data. The Content and the Marks are provided on the SP&D “AS IS” for your information and personal use only. Except as expressly provided inthe Agreement, no part of the SP&D and no Content or Marks may be shared, copied, reproduced, aggregated, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted, distributed, sold, licensed, or otherwise exploited for any commercial purpose whatsoever, without our express prior written permission.
2.4. Provided that you are eligible to use the Site, you are granted a limited license to access and use the Site and to download or print a copy of any portion of the Content to which you have properly gained access solely for your personal or enterprise use. These rights are granted only to the single identified user of the website in whose name the user ID is created. We reserve all rights not expressly granted to you in and to the SP&D, the Content and the Marks.
2.5. If you sign up with us, you hereby grant us the limited right to display your trademarks, service marks and logos for our promotional and marketing purposes on the Site or our marketing or investment material. It is your responsibility to make available to us any usage guidelines associated with the use of your trademarks, service marks and logos.
2.6. Notice for Claims of Intellectual Property Violations and Copyright Infringement.
3. USER REPRESENTATIONS
3.1. By using the SP&D and availing the Services, you represent and warrant that: (1) all registration information you submit will be true, accurate, current, and complete; (2) you will maintain the accuracy of such information and promptly update such registration information as necessary; (3) you have the legal capacity to bind the entity that you represent to comply with the Agreement; (4) you are not a minor in the jurisdiction in which you reside or are not prohibited from availing the Services; (5) you will not access the SP&D or avail the ServicesWe respond to notices of alleged copyright infringement under the United States DigitalMillennium Copyright Act. We try to ensure that items and content on our Site do not infringe upon the copyright, trademark, or certain other intellectual property rights of third parties. If you believe that your intellectual property rights have been infringed, please notify us and we will investigate through automated or non-human means, whether through a bot, script or otherwise; (6) you will not use the SP&D or avail the Services for any fraudulent, illegal, unlawful or unauthorized purpose; (7) your use of the SP&D or availing the Services will not violate any applicable law or regulation; (8) your use of the SP&D (or its derivatives) does not compete with us either directly or indirectly; and (9) in case you provide any information to us under the Agreement, such sharingof information is in accordance with applicable law.
3.2. If you provide any information that is untrue, inaccurate, not current, or incomplete, we have the right to suspend or terminate your account and refuse any and all current or future Servicesand/or use of the SP&D (or any portion thereof).
4. USER REGISTRATION
4.1. You will be required to register with the Site to access some Content and the Product. You may be required to provide basic identity, contact and payment information for you or your enterprise upon registration. While we do not expect or require you to share any personal data with us, in case you share any personal data through the Site, it shall be governed by our PrivacyPolicy (NOTE: Please insert hyperlink). You agree to keep your password confidential and ensure that no one else secures access to your user account. You will be responsible for all use of your account and password. We reserve the right to remove, reclaim, or change a username you select if we determine, in our sole discretion, that such username is inappropriate, obscene, otherwise objectionable.
4.2. Upon registration and based on the pricing plan that you chose we will provide access to a certain number of users to the Product. Each of the users will be granted a user ID. The obligations set out under these terms shall be applicable to each user and you shall be responsible to ensure compliance to these terms by each user.
4.3. If you choose, or are provided with, a user name, password or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your account is personal to you and agree not to provide any other person with access to the Site or portions of it using your username, password or other security information. You agree to notify us immediately of any unauthorized access to or use of your username or password or any other breach of security.You also agree to ensure that you exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.
5. FEES AND PAYMENT
5.1. We use Stripe to process payments made to us. You agree to be bound by the payment terms of Stripe for the purposes of making payments. You may access the payment terms here - https://stripe.com/payment-terms/legal.
5.2. You may be required to purchase or pay a fee to access some of our services. You agree to provide current, complete, and accurate purchase and account information for all purchases made via the Site. You further agree to promptly update account and payment information, including email address, payment method, and payment card expiration date, so that we can complete your transactions and contact you as needed. We bill you through an online billing account for purchases made via the Site. Any applicable tax will be added to the price of purchases as deemed required by us and as mandated under applicable law. All payments shall be in U.S. dollars.
5.3. You agree to pay all charges or fees at the prices then in effect for your purchases, and you authorize us to charge your chosen payment provider for any such amounts upon making your purchase or based on your billing cycle. If your purchase is subject to recurring charges, then you consent to us charging your payment method on a recurring basis without requiring your prior approval for each recurring charge, until you notify us of your cancellation in writing. In any case, you must pay and clear any amount charged to your billing account within fifteen (15) days from when it becomes payable. We reserve the right to correct any errors or mistakes in pricing, even if we have already requested or received payment. We also reserve the right to refuse any order placed through the Site. You agree to pay all charges or fees at the prices then in effect for your purchases, and you authorize us to charge your chosen payment provider for any such amounts upon making your purchase or based on your billing cycle. If your purchase as a Standard User or otherwise, is subject to recurring charges, then you consent to us charging your payment method on a recurring basis without requiring your prior approval for each recurring charge, until you notify us of your cancellation in writing. In case of a failure of such charge on your payment method and such failure being attributable to you and/or your chosen payment provider, we shall issue you an intimation in writing of such failure (“First Warning”) and thereafter attempt to charge your payment method within a period of 3 days of the First Warning. In case of a failure of such charge on your payment method after the First Warning, we shall again issue you an intimation in writing with respect to this second payment failure (“Second Warning”) and thereafter attempt to charge your payment method within a period of 30 days of the Second Warning. In case of a failure of such charge on your payment method after the Second Warning, we shall have the absolute and unfettered right to immediately cancel your account and forthwith restrict your access to the SP&D and refuse to provide you with any of the Services. It is further clarified that we shall have a right to recover any costs incurred by us to recover the charges due to us from you under this Standard Agreement and/or the Quote. In any case, you agree to pay and clear any amount charged to your billing account within fifteen (15) days from when it becomes payable. We reserve the right to correct any errors or mistakes in pricing or our invoice, even if we have already requested or received payment with respect to a particular invoice. We also reserve the right to refuse any order placed through the Site and you waive any right of estoppel in this regard.
6. OUR FEES
6.1. In case of a Quote, our fees and payment schedule shall be governed by the Quote and theStandard Agreement shall only be applicable to the extent that it does not conflict with theQuote.
6.2. When registering with us, you may select to create a free account. No credit card information is needed at this time but your access to our platform’s features will be limited. If you choose todo so, you may select a paid account that fits your needs. We offer a variety of plans, all available on the following page here: https://attentive.ai/pricing. Your billing account shall be charged foreach billing cycle. A billing cycle shall usually include the subscription amount for the subsequent month and the charges for the total number of Reports or any other features, accessed by you or customizations created for you in the preceding month. We may change our fees at any time and the revised fees shall become applicable from the next billing cycle.
6.3. Users who previously created accounts and have prior plans with us are able to continue using their prior payment plan unless they upgrade or downgrade their accounts. Any upgrades will occur immediately at a prorated rate. Any downgrades to a user’s account will take place following the end of their current billing cycle.
7. CUSTOMISED ACCOUNT
7.1. You may choose to avail of a customized package as per the terms agreed between theParties by entering into a Quote. As part of a customized account you may be offered 1. bulk discount, 2. API access, 3. custom enterprise services, and 4. any other customizations to theProduct. In order to avail of a customized account you may get in touch with us at sales@attentive.ai
7.2. Each customization shall be charged separately. We will inform you about the charges for any customization up-front over email. An email from your account confirming the customizations that we offer will serve as the final acceptance of the customizations. In the case of a customized account, any other terms in the Standard Agreement may be amended over email or such other manner as may be mutually agreed to between us and you (“AmendedStandard Agreement”) and any such changes shall stand incorporated into the StandardAgreement once they have been agreed by you and us over email. In case of any conflict between the Standard Agreement and the Amended Standard Agreement, the Amended StandardAgreement shall prevail. The Parties may alternatively agree to execute a Quote instead of agreeing to any Amended Standard Agreement. In case of any execution of a Quote, such Quote shall prevail over the Amended Standard Agreement (if any) to the extent that the Quote may conflict with the Amended Standard Agreement.
7.3. The payment for any additional service agreed to between the Parties and specified in aQuote shall be due and payable in accordance with the terms of the Quote.
8. CANCELLATION
8.1. Subject to the terms of the Quote, you can cancel your subscription at any time by logging into your account or contacting us using the contact information provided below. Your cancellation will take effect at the end of the current billing cycle. No refunds shall be provided upon cancellation for any amount that has become payable in that billing cycle. Further, in the event we have started working on the basis of a request made by you in relation to the provision of SP&D or Services to you, then we reserve the right to charge you for such work that may be completed or in-progress and/or such services already provided to you on a pro rata basis.
8.2. If you are unsatisfied with our services, please email us at support@attentive.ai
9. PROHIBITED ACTIVITIES
9.1. You may not access or use the Site for any purpose other than that for which we make theSite available. The Site may not be used in connection with any commercial endeavors except those that are specifically endorsed or approved by us.
9.2. As a user of the Site, you agree not to: (i) Systematically retrieve data or other content from the Site to create or compile, directly or indirectly, a collection, compilation, database, or directory without written permission from us. (ii) Make any unauthorized use of the Site, including collecting usernames and/or email addresses of users by electronic or other means for the purpose of sending unsolicited email, or creating user accounts by automated means or under false pretences. (iii) Use a buying agent or purchasing agent to make purchases on the Site.(iv) Use the Site to advertise or offer to sell goods and services. (v) Circumvent, disable, otherwise interfere with security-related features of the Site, including features that prevent or restrict the use or copying of any Content or enforce limitations on the use of the Site and/or theContent contained therein. (vi) Engage in unauthorized framing of or linking to the Site. (vii) Trick, defraud, or mislead us and other users, especially in any attempt to learn sensitive account information such as user passwords. (viii) Make improper use of our support services or submit false reports of abuse or misconduct. (ix) Engage in any automated use of the system, such as using scripts to send comments or messages, or using any data mining, robots, or similar data gathering and extraction tools. (x) Interfere with, disrupt, or create an undue burden on the Site or the networks or services connected to the Site. (xi) Attempt to impersonate another user or person or use the username of another user. (xii) Sell or otherwise transfer your profile.(xiii) Use any information obtained from the Site in order to harass, abuse, or harm another person. (xiv)Use the Site as part of any effort to compete with us or otherwise use the Site and/or the Content for any revenue-generating endeavor or commercial enterprise. (xv) Decipher, decompile, disassemble, or reverse engineer any of the software or algorithms comprising or in any way making up a part of the Site. (xvi) Attempt to bypass any measures of the Site designed to prevent or restrict access to the Site, or any portion of the Site. (xvii) Harass, annoy, intimidate, or threaten any of our employees or agents engaged in providing any portion of the Site to you.(xviii) Delete the copyright or other proprietary rights notice from any Content. (xix) Copy or adapt the Site’s software, including but not limited to Flash, PHP, HTML, JavaScript, or other code.(xx) Upload or transmit (or attempt to upload or to transmit) viruses, Trojan horses, or other material, including excessive use of capital letters and spamming (continuous posting of repetitive text), that interferes with any party’s uninterrupted use and enjoyment of the Site or modifies, impairs, disrupts, alters, or interferes with the use, features, functions, operation, or maintenance of the Site. (xxi) Upload or transmit (or attempt to upload or to transmit) any material that acts as a passive or active information collection or transmission mechanism, including without limitation, clear graphics interchange formats (“gifs”), 1×1 pixels, web bugs, cookies, or other similar devices (sometimes referred to as “spyware” or “passive collection mechanisms” or “pcms”). (xxii) Except as may be the result of standard search engine or Internet browser usage, use, launch, develop, or distribute any automated system, including without limitation, any spider, robot, cheat utility, scraper, or offline reader that accesses the Site, or using or launching any unauthorized script or other software. (xxiii) Disparage, tarnish, or otherwise harm, in our opinion, us and/or the Site. (xxiv) Use the Site in a manner inconsistent with any applicable laws or regulations.
10. SUBMISSIONS
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback, or other information regarding the SP&D (“Submissions”) provided by you to us are non-confidential and shall become our sole property. We shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any lawful purpose, commercial or otherwise, without acknowledgment or compensation to you. You hereby waive all moral rights to any such Submissions, and you hereby warrant that any such Submissions are original with you or that you have the right to submit such Submissions. You agree there shall be no recourse against us for any alleged or actual infringement or misappropriation of any proprietary right in your Submissions.You acknowledge, consent and agree that we may, at our sole discretion and to the extent permitted by law, access, read, preserve and disclose your account information, usage history and Submissions in order to: (a) comply with any applicable law, regulation, legal process, or governmental request; (b) respond to claims that any Submission violates the rights of third parties, including intellectual property rights; (c) enforce these Terms of Use and investigate potential violations thereof; (d) detect, prevent, or otherwise address fraud, security, or technical issues; (e) respond to your requests for customer service; or (f) protect the rights, property, or personal safety or interests of Attentive, other users of the Site, or the public.
11. THIRD-PARTY WEBSITES AND CONTENT
The SP&D may contain (or you may be sent via the Site) links to other websites (“Third- PartyWebsites”) as well as articles, photographs, text, graphics, pictures, designs, music, sound, video, information, applications, software, and other content or items belonging to or originating from third parties (“Third-Party Content”). Such Third-Party Websites and Third-Party Content are not investigated, monitored, or checked for accuracy, appropriateness, or completeness by us, and we are not responsible for any Third-Party Websites accessed through the SP&D or any Third-Party Content posted on, available through, or installed from the SP&D, including the content, accuracy, offensiveness, opinions, reliability, privacy practices, or other policies of or contained in the Third-Party Websites or the Third-Party Content. Inclusion of, linking to, or permitting the use or installation of any Third-Party Websites or any Third-Party Content does not imply approval or endorsement thereof by us. If you decide to access the Third-Party Websites or to use or install any Third-Party Content, you do so at your own risk, and you should be aware that the Agreement no longer governs. You should review the applicable terms and policies, including privacy and data gathering practices, of any website to which you navigate from the SP&D or relating to any applications you use or install from the SP&D. Any purchases you make throughThird-Party Websites will be through other websites and from other companies, and we take no responsibility whatsoever in relation to such purchases which are exclusively between you and the applicable third party. You agree and acknowledge that we do not endorse the products or services offered on Third-Party Websites and you shall hold us harmless from any harm caused by your purchase of such products or services. Additionally, you shall indemnify and hold us harmless from any losses sustained by you or harm caused to you relating to or resulting in anyway from any Third-Party Content or any contact with Third-Party Websites.
12. SITE MANAGEMENT
12.1. We reserve the right, but not the obligation, to: (i) monitor the Site for violations of theStandard Agreement; (ii) take appropriate legal action against anyone who, in our sole discretion, violates the law or this Standard Agreement, including without limitation, reporting such user to law enforcement authorities; (iii) in our sole discretion and without limitation, refuse, restrict access to, limit the availability of, or disable (to the extent technologically feasible) access toSP&D or any portion thereof; (iv) in our sole discretion and without limitation, notice, or liability, to remove from the SP&D or otherwise disable all files and content that are excessive in size or are in any way burdensome to our systems; and (v) otherwise manage the SP&D in a manner designed to protect our rights and property and to maintain and facilitate the proper functioning of the Site.
13. PRIVACY POLICY
We care about data privacy and security. Please review our Privacy Policy: Attentive Inc. PrivacyPolicy. By using the site, you agree to be bound by our Privacy Policy, which is incorporated into this Standard Agreement and the Quote. Please be aware that your data may be transferred, processed and stored outside of your country and that your data may be subject to disclosure as required by applicable law.
14. TERM AND TERMINATION
14.1. The Agreement shall remain in full force and effect while you use the SP&D, or avail theServices, whichever is later.
14.2. Termination with cause: Without limiting any other provision of the Standard Agreement,Attentive reserves the right to, in its sole discretion, and without notice or liability, deny access to and use of the SP&D and/or refuse to provide the Services and deny access to the Deliverables in the event: (i) you commit a material breach of any terms of the Standard Agreement including specifically any representation, warranties or covenants; (ii) you are in breach of applicable law and such breach, in the opinion of Attentive, justifies termination of the Standard Agreement;(iii) you repeatedly breach the Standard Agreement in such a manner as to reasonably justify the opinion that your conduct is inconsistent with it having the intention or ability to give effect to the Standard Agreement; (iv) you suspend, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts; (v) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over you; Provided that, in case of a termination of the Standard Agreement pursuant to this section, you shall be liable to all Fees accrued till the date of termination or the date until which you have received any Services from Attentive.
14.3. WITHOUT LIMITING ANY OTHER PROVISION OF THE STANDARD AGREEMENT OF USE INCASE OF THE CIRCUMSTANCES DETAILED ABOVE, WE MAY TERMINATE THE STANDARD AGREEMENT AND RESTRICT YOUR USE OR PARTICIPATION IN THE SITE OR DELETE YOUR ACCOUNT AND ANY CONTENT OR INFORMATION THAT YOU POSTED AT ANY TIME, WITHOUT WARNING, IN OUR SOLE DISCRETION.
14.4. If we terminate or suspend your account for any reason, you are prohibited from registering and creating a new account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. In addition to terminating or suspending your account, we reserve the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress.
14.5. Termination or expiry of the Standard Agreement shall not affect any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Standard Agreement which existed at or before the date of termination or expiry.
14.6. In case of a termination or expiry of the Standard Agreement, Attentive shall handover all the Deliverables up to the date of termination or expiry.
14.7. Each Party acknowledges that the other Party has entered into the Agreement relying on the limitations of liability stated in this Section and that those limitations are an essential basis of the bargain between the parties. In addition to and without limiting any of the foregoing, noDisclaiming Entity will have any liability for any failure or delay resulting from any condition beyond the reasonable control of that Party, including governmental action or acts of terrorism, earthquake, fire, flood or other acts of God, labor conditions, power failures and Internet disturbances.
15. MODIFICATIONS AND INTERRUPTIONS
15.1. We reserve the right to change, modify, or remove the contents of the Site at any time or for any reason at our sole discretion without notice. However, we have no obligation to update any information on our Site. We also reserve the right to modify or discontinue all or part of theSite without notice at any time. We will not be liable to you or any third party for any modification, price change, suspension, or discontinuance of the Site.
15.2. We cannot guarantee the Site will be available at all times. We may experience hardware, software, or other problems or need to perform maintenance related to the Site, resulting in interruptions, delays, or errors. We reserve the right to change, revise, update, suspend, discontinue, or otherwise modify the Site at any time or for any reason without notice to you.You agree that we have no liability whatsoever for any loss, damage, or inconvenience caused by your inability to access or use the Site during any downtime or discontinuance of the Site. Nothing in the Standard Agreement or the Quote will be construed as estoppel or will obligate us to maintain and support the Site or to supply any corrections, updates, or releases in connection there with.
16. GOVERNING LAW AND JURISDICTION
16.1. The Agreement and your use of the SP&D are governed by and construed in accordance with the laws of the State of Delaware, United States of America without regard to its conflict of law principles.
16.2. The courts of Delaware shall have exclusive jurisdiction over any disputes arising out of the Agreement. You hereby waive all defenses of lack of personal jurisdiction, and forum non conveniens with respect to venue and jurisdiction. Application of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer InformationTransaction Act (UCITA) are excluded from the Agreement.
17. DISPUTE RESOLUTION
17.1. Informal Negotiations To expedite resolution and control the cost of any dispute, controversy, or claim related to the Agreement (each a “Dispute” and collectively, the “Disputes”)brought by either you or us (individually, a “Party” and collectively, the “Parties”), the Parties agree to first attempt to negotiate any Dispute (except those Disputes expressly provided below)informally for at least thirty (30) days before initiating the arbitration. Such informal negotiations commence upon written notice from one Party to the other Party.
17.2. Binding Arbitration
17.2.1. If the Parties are unable to resolve a Dispute through informal negotiations, the Dispute (except those Disputes expressly excluded below) will be finally and exclusively resolved by binding arbitration. The arbitration shall be governed by the laws of the state of Delaware and shall be commenced and conducted under London InternationalArbitration Centre (LIAC) Rules (as amended from time to time). In the event of an Arbitration, both parties shall appoint a sole arbitrator to finally settle the dispute. The arbitration may be conducted in person, through the submission of documents, or otherwise as may be agreed between the parties and permitted under the LIAC Rules. The arbitrator shall pass his or her award in writing. The award of the arbitrator shall be final and binding on both parties. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails todo so. The seat of Arbitration shall be in Delaware. Except as otherwise provided herein, the Parties may litigate in court to compel arbitration, or stay proceedings pending arbitration.
17.2.2. If for any reason, a Dispute proceeds in court rather than arbitration, the Dispute shall be commenced or prosecuted in the courts of Delaware, which shall have exclusive jurisdiction over any disputes that arise out of or in relation to the Agreement.
17.3. Restrictions The Parties agree that any arbitration shall be limited to the Dispute between the Parties individually. To the full extent permitted by law, (a) no arbitration shall be joined with any other proceeding; (b) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (c) there is no right or authority for anyDispute to be brought in a purported representative capacity on behalf of the general public or any other persons.
17.4. Exceptions to Informal Negotiations and Arbitration
17.4.1. The Parties agree that the following Disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: (i) any Disputes seeking to enforce or protect, or concerning the validity of, any of the intellectual property rights of a Party; (ii) any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy, or unauthorized use; and (iii) any claim for injunctive relief.
17.4.2. If this provision is found to be illegal or unenforceable, then neither Party will elect to arbitrate any Dispute falling within that portion of this provision found to be illegal or unenforceable and such Dispute shall be decided by a court of competent jurisdiction and theParties agree to submit to the personal jurisdiction of that court.
18. CORRECTIONS
There may be information on the Site that contains typographical errors, inaccuracies, or omissions, including descriptions, pricing, availability, and various other information. We reserve the right to correct any errors, inaccuracies, or omissions and to change or update the information on the Site at any time, without prior notice.
19. DISCLAIMER
THE SP&D ARE PROVIDED ON AN AS-IS AND AS-AVAILABLE BASIS. YOU AGREE THAT YOUR USE OF THE SP&D WILL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, UNDER THE AGREEMENT IN CONNECTION WITH THE SP&D AND THE SERVICES AND YOUR USE THEREOF, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, AND NON-INFRINGEMENT. WE MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE SP&D, THE SERVICES, OR THE CONTENT OF ANY WEBSITES LINKED TO THE SP&D AND WE WILL ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY
(1) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT AND MATERIALS,
(2) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS
TO AND USE OF THE SP&D AND THE SERVICES,
(3) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN,
(4) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SP&D AND THE SERVICES,
(5) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SP&D BY ANY THIRD PARTY, AND/OR
(6) ANY ERRORS OR OMISSIONS IN ANY CONTENT AND MATERIALS OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIATHE SP&D AND THE SERVICES. WE DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SP&D, ANY HYPERLINKED WEBSITE, OR ANY WEBSITE OR MOBILE APPLICATION FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND WE WILL NOT BE A PARTY TO OR INANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND ANY THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
20. LIMITATIONS OF LIABILITY AND FORCE MAJEURE
20.1. IN NO EVENT WILL WE OR OUR DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE TO YOU
OR
ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL,SPECIAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT, LOST REVENUE, LOSS OF DATA,
OR
OTHER DAMAGES ARISING FROM YOUR USE OF THE SP&D OR AVAILING OF THE SERVICES,
EVEN
IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION UNDER THE AGREEMENT,
WILL
AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO US DURING THE SIX (6)MONTH PERIOD PRIOR TO ANY CAUSE OF ACTION ARISING.
20.2. You acknowledge and agree that both Parties have entered into the Agreement relying on the limitations of liability stated in this Section and that those limitations are an essential basis of the bargain between the parties. In addition to and without limiting any of the foregoing, neither Party will have any liability for any failure or delay resulting from any condition beyond the reasonable control of that party, including governmental action or acts of terrorism, earthquake, fire, flood or other acts of God, labour conditions, power failures and Internet disturbances.
21. INDEMNIFICATION
21.1. You agree to defend, indemnify, and hold us including our subsidiaries, affiliates, and all ofour respective officers, agents, partners, and employees, harmless from and against any loss, damage, liability, claim, or demand, including reasonable attorneys’ fees and expenses, made by any third party due to or arising out of: (i) your Submissions; (ii) your use of the SP&D or availing of the Services; (iii) breach of any terms of the Agreement; (iv) any breach of your representations and warranties set forth in the Agreement; (v) your violation of the rights of a third party, including but not limited to intellectual property rights; or (vi) any overt harmful act toward any other user of the Site with whom you connected via the Site.
21.2. Notwithstanding the foregoing, we reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate, at your expense, with our defense of such claims. We will use reasonable efforts to notify you of any such claim, action, or proceeding which is subject to this indemnification upon becoming aware of it.
22. USER DATA
We will maintain certain data that you transmit to the Site for the purpose of managing the performance of the Site, as well as data relating to your use of the Site. Although we perform regular routine backups of data, you are solely responsible for all data that you transmit or that relates to any activity you have undertaken using the Site.
23. ELECTRONIC COMMUNICATIONS, TRANSACTIONS, AND SIGNATURES
Visiting the Site,sending us emails, and completing online forms constitute electronic communications. You consent to receive electronic communications, and you agree that all agreements, notices, disclosures, and other communications we provide to you electronically, via email and on theSite, satisfy any legal requirement that such communication be in writing. YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS, AND OTHER RECORDS, AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES, AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED BY US OR VIA THE SITE. You hereby waive any rights or requirements under any statutes, regulations, rules, ordinances, or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by any means other than electronic means.
24. MISCELLANEOUS
24.1. Unless otherwise specified in the Agreement and any policies or operating rules posted by us on the Site or in respect to the Site constitute the entire agreement and understanding between you and us. Our failure to exercise or enforce any right or provision of the Agreement shall not operate as a waiver of such right or provision. The Agreement operates to the fullest extent permissible by law.
24.2. You may not assign the Agreement or any of your rights or obligations, by operation of law or otherwise, without our prior written approval and any attempted assignment will be void. We may assign any or all of our rights and obligations to others at any time. We shall not be responsible or liable for any loss, damage, delay, or failure to act caused by any cause beyond our reasonable control. If any provision or part of a provision of the Agreement is determined to be unlawful, void, or unenforceable, that provision or part of the provision is deemed severable from the Agreement and does not affect the validity and enforceability of any remaining provisions.
24.3. Nothing in the Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the Parties, constitute any of the Parties as the agent of anotherParty, or authorise any of the Parties to make or enter into any commitments for or on behalf of any other Party. Each Party confirms it is acting on its own behalf and not for the benefit of any other person.
24.4. You agree that the Agreement will not be construed against us even in instances where we have drafted them. You hereby waive any and all defenses you may have based on the electronic form of the Standard Agreement and the lack of signing by the parties hereto to execute theStandard Agreement.
24.5. If any provision of the Agreement is held by a court or other tribunal of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of theAgreement will continue in full force and effect.
25. SURVIVAL
Upon termination of your use of the Site or termination of the Agreement for any reason, in addition to this section, the following sections will survive termination: Governing Law andJurisdiction, Dispute Resolution, Submissions, User Representations, Disclaimer, Limitation ofLiability and Force Majeure, Term and Termination, Assignment, Indemnification, andMiscellaneous, Contact Us.
26. CONTACT US
26.1. In order to resolve a complaint regarding the SP&D or to receive further information regarding use of the SP&D, please contact us at:Attentive Inc, 1013 Centre Road, Suite 403-B, Wilmington, Delaware 19805, United StatesEmail: info@attentiveinc.ai
1. BINDING AGREEMENT
1.1. The Standard Agreement, along with Quote (if any) (“Agreement”), constitutes a legally binding agreement made between the Parties concerning: (i) your access to and use of AttentiveAI’s websites (e.g., https://attentive.ai, http://app.attentive.ai/, and other websites through which we may provide you with Product, Report, Services and Deliverables (all defined below)),any other media form, media channel, mobile website or mobile application related, linked, otherwise connected thereto (collectively, the “Site”); (ii) tools, products, solutions or customizations provided to you by us through the Site (“Product(s)”); and (iii) customized services being availed by you (“Services”) and the associated work products created as a result of theServices (“Deliverables”) in accordance with the Quote entered into between the Parties.
1.2. Our Site, Products and Deliverables inter alia provide you information with the requested information about identified real-estate properties or geographical locations (information about each individual property or location referred to as a “Report”). You agree that by accessing theSite, Products or availing the Services, you have read, understood, and agree to be bound by all of the Agreement. If you do not agree with all of the Agreement, then you are expressly prohibited from using the Site, Products, Services and Deliverables and you must discontinue any use immediately.
1.3. Any additional conditions, policies, API guidelines or supplemental terms that we make available to you or on the Site are hereby expressly incorporated herein by reference and will be governed by the Standard Agreement (to the extent applicable). We reserve the right, in our sole discretion, to make changes or modifications to the Standard Agreement at any time and for any reason. The Quote shall be amended on mutual agreement of both Parties. We will alert you about any changes by updating the “Last updated” date of the Standard Agreement and all rights and obligations that may have arisen in the past will be governed by the amended StandardAgreement, and you waive any right to receive specific notice of each such change. It is your responsibility to periodically review the Standard Agreement to stay informed of updates. You will be subject to, and will be deemed to have been made aware of and to have accepted, the changes in any revised Standard Agreement by your continued use of the Site after the date such revised Standard Agreement are posted.
1.4. The information provided on the Site (along with the terms of our Privacy Policy) and theProducts, Deliverables, and any services provided under the Agreement is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject us to any registration requirement within such jurisdiction or country. Accordingly, those persons who choose to access the Site or avail Services or use the Deliverables from other locations do so on their own initiative and are solely responsible for compliance with local laws, if and to the extent local laws are applicable and we specifically exclude any liability that may be incurred on account of such access to the Site.
1.5. The Site is intended for users who are at least 18 years old. Persons under the age of 18 are not permitted to use or register for the Site.
2. INTELLECTUAL PROPERTY RIGHTS
2.1. Unless specifically provided for otherwise, the Site, Products, add-ons (if any) andDeliverables (collectively, “SP&D”) are our proprietary property and all information, customizations, Reports, source code, algorithms, databases, functionality, software, website designs, audio, video, text, photographs, and graphics on the SP&D (collectively, the “Content”)and the trademarks, service marks, and logos contained therein (the “Marks”) are owned or controlled by us or have been licensed to us, and are protected by copyright and trademark laws and various other intellectual property rights and anti-trust laws of the United States, foreign jurisdictions, and international conventions.
2.2. Subject to the terms detailed herein, if you are provided with any Deliverable or Report, you are granted a perpetual, irrevocable, non-exclusive, not for resale, worldwide, royalty free, fully paid up license to use, make, execute, reproduce, display, prepare derivative works based upon (other than through machine learning), and distribute (internally) copies of theDeliverables/Reports. You are prohibited from sub- licensing the intellectual property embedded in the Deliverables/Reports or selling copies of the Deliverables/Reports in any form to any other party.
2.3. Please also note that any derivative data generated as a part of providing our Products to you and/or your access to the Site will be solely and entirely owned by us and to this extent you waive any right (legal or moral) to such derivative data. The Content and the Marks are provided on the SP&D “AS IS” for your information and personal use only. Except as expressly provided inthe Agreement, no part of the SP&D and no Content or Marks may be shared, copied, reproduced, aggregated, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted, distributed, sold, licensed, or otherwise exploited for any commercial purpose whatsoever, without our express prior written permission.
2.4. Provided that you are eligible to use the Site, you are granted a limited license to access and use the Site and to download or print a copy of any portion of the Content to which you have properly gained access solely for your personal or enterprise use. These rights are granted only to the single identified user of the website in whose name the user ID is created. We reserve all rights not expressly granted to you in and to the SP&D, the Content and the Marks.
2.5. If you sign up with us, you hereby grant us the limited right to display your trademarks, service marks and logos for our promotional and marketing purposes on the Site or our marketing or investment material. It is your responsibility to make available to us any usage guidelines associated with the use of your trademarks, service marks and logos.
2.6. Notice for Claims of Intellectual Property Violations and Copyright Infringement.
3. USER REPRESENTATIONS
3.1. By using the SP&D and availing the Services, you represent and warrant that: (1) all registration information you submit will be true, accurate, current, and complete; (2) you will maintain the accuracy of such information and promptly update such registration information as necessary; (3) you have the legal capacity to bind the entity that you represent to comply with the Agreement; (4) you are not a minor in the jurisdiction in which you reside or are not prohibited from availing the Services; (5) you will not access the SP&D or avail the ServicesWe respond to notices of alleged copyright infringement under the United States DigitalMillennium Copyright Act. We try to ensure that items and content on our Site do not infringe upon the copyright, trademark, or certain other intellectual property rights of third parties. If you believe that your intellectual property rights have been infringed, please notify us and we will investigate through automated or non-human means, whether through a bot, script or otherwise; (6) you will not use the SP&D or avail the Services for any fraudulent, illegal, unlawful or unauthorized purpose; (7) your use of the SP&D or availing the Services will not violate any applicable law or regulation; (8) your use of the SP&D (or its derivatives) does not compete with us either directly or indirectly; and (9) in case you provide any information to us under the Agreement, such sharingof information is in accordance with applicable law.
3.2. If you provide any information that is untrue, inaccurate, not current, or incomplete, we have the right to suspend or terminate your account and refuse any and all current or future Servicesand/or use of the SP&D (or any portion thereof).
4. USER REGISTRATION
4.1. You will be required to register with the Site to access some Content and the Product. You may be required to provide basic identity, contact and payment information for you or your enterprise upon registration. While we do not expect or require you to share any personal data with us, in case you share any personal data through the Site, it shall be governed by our PrivacyPolicy (NOTE: Please insert hyperlink). You agree to keep your password confidential and ensure that no one else secures access to your user account. You will be responsible for all use of your account and password. We reserve the right to remove, reclaim, or change a username you select if we determine, in our sole discretion, that such username is inappropriate, obscene, otherwise objectionable.
4.2. Upon registration and based on the pricing plan that you chose we will provide access to a certain number of users to the Product. Each of the users will be granted a user ID. The obligations set out under these terms shall be applicable to each user and you shall be responsible to ensure compliance to these terms by each user.
4.3. If you choose, or are provided with, a user name, password or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your account is personal to you and agree not to provide any other person with access to the Site or portions of it using your username, password or other security information. You agree to notify us immediately of any unauthorized access to or use of your username or password or any other breach of security.You also agree to ensure that you exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.
5. FEES AND PAYMENT
5.1. We use Stripe to process payments made to us. You agree to be bound by the payment terms of Stripe for the purposes of making payments. You may access the payment terms here - https://stripe.com/payment-terms/legal.
5.2. You may be required to purchase or pay a fee to access some of our services. You agree to provide current, complete, and accurate purchase and account information for all purchases made via the Site. You further agree to promptly update account and payment information, including email address, payment method, and payment card expiration date, so that we can complete your transactions and contact you as needed. We bill you through an online billing account for purchases made via the Site. Any applicable tax will be added to the price of purchases as deemed required by us and as mandated under applicable law. All payments shall be in U.S. dollars.
5.3. You agree to pay all charges or fees at the prices then in effect for your purchases, and you authorize us to charge your chosen payment provider for any such amounts upon making your purchase or based on your billing cycle. If your purchase is subject to recurring charges, then you consent to us charging your payment method on a recurring basis without requiring your prior approval for each recurring charge, until you notify us of your cancellation in writing. In any case, you must pay and clear any amount charged to your billing account within fifteen (15) days from when it becomes payable. We reserve the right to correct any errors or mistakes in pricing, even if we have already requested or received payment. We also reserve the right to refuse any order placed through the Site. You agree to pay all charges or fees at the prices then in effect for your purchases, and you authorize us to charge your chosen payment provider for any such amounts upon making your purchase or based on your billing cycle. If your purchase as a Standard User or otherwise, is subject to recurring charges, then you consent to us charging your payment method on a recurring basis without requiring your prior approval for each recurring charge, until you notify us of your cancellation in writing. In case of a failure of such charge on your payment method and such failure being attributable to you and/or your chosen payment provider, we shall issue you an intimation in writing of such failure (“First Warning”) and thereafter attempt to charge your payment method within a period of 3 days of the First Warning. In case of a failure of such charge on your payment method after the First Warning, we shall again issue you an intimation in writing with respect to this second payment failure (“Second Warning”) and thereafter attempt to charge your payment method within a period of 30 days of the Second Warning. In case of a failure of such charge on your payment method after the Second Warning, we shall have the absolute and unfettered right to immediately cancel your account and forthwith restrict your access to the SP&D and refuse to provide you with any of the Services. It is further clarified that we shall have a right to recover any costs incurred by us to recover the charges due to us from you under this Standard Agreement and/or the Quote. In any case, you agree to pay and clear any amount charged to your billing account within fifteen (15) days from when it becomes payable. We reserve the right to correct any errors or mistakes in pricing or our invoice, even if we have already requested or received payment with respect to a particular invoice. We also reserve the right to refuse any order placed through the Site and you waive any right of estoppel in this regard.
6. OUR FEES
6.1. In case of a Quote, our fees and payment schedule shall be governed by the Quote and theStandard Agreement shall only be applicable to the extent that it does not conflict with theQuote.
6.2. When registering with us, you may select to create a free account. No credit card information is needed at this time but your access to our platform’s features will be limited. If you choose todo so, you may select a paid account that fits your needs. We offer a variety of plans, all available on the following page here: https://attentive.ai/pricing. Your billing account shall be charged foreach billing cycle. A billing cycle shall usually include the subscription amount for the subsequent month and the charges for the total number of Reports or any other features, accessed by you or customizations created for you in the preceding month. We may change our fees at any time and the revised fees shall become applicable from the next billing cycle.
6.3. Users who previously created accounts and have prior plans with us are able to continue using their prior payment plan unless they upgrade or downgrade their accounts. Any upgrades will occur immediately at a prorated rate. Any downgrades to a user’s account will take place following the end of their current billing cycle.
7. CUSTOMISED ACCOUNT
7.1. You may choose to avail of a customized package as per the terms agreed between theParties by entering into a Quote. As part of a customized account you may be offered 1. bulk discount, 2. API access, 3. custom enterprise services, and 4. any other customizations to theProduct. In order to avail of a customized account you may get in touch with us at sales@attentive.ai
7.2. Each customization shall be charged separately. We will inform you about the charges for any customization up-front over email. An email from your account confirming the customizations that we offer will serve as the final acceptance of the customizations. In the case of a customized account, any other terms in the Standard Agreement may be amended over email or such other manner as may be mutually agreed to between us and you (“AmendedStandard Agreement”) and any such changes shall stand incorporated into the StandardAgreement once they have been agreed by you and us over email. In case of any conflict between the Standard Agreement and the Amended Standard Agreement, the Amended StandardAgreement shall prevail. The Parties may alternatively agree to execute a Quote instead of agreeing to any Amended Standard Agreement. In case of any execution of a Quote, such Quote shall prevail over the Amended Standard Agreement (if any) to the extent that the Quote may conflict with the Amended Standard Agreement.
7.3. The payment for any additional service agreed to between the Parties and specified in aQuote shall be due and payable in accordance with the terms of the Quote.
8. CANCELLATION
8.1. Subject to the terms of the Quote, you can cancel your subscription at any time by logging into your account or contacting us using the contact information provided below. Your cancellation will take effect at the end of the current billing cycle. No refunds shall be provided upon cancellation for any amount that has become payable in that billing cycle. Further, in the event we have started working on the basis of a request made by you in relation to the provision of SP&D or Services to you, then we reserve the right to charge you for such work that may be completed or in-progress and/or such services already provided to you on a pro rata basis.
8.2. If you are unsatisfied with our services, please email us at support@attentive.ai
9. PROHIBITED ACTIVITIES
9.1. You may not access or use the Site for any purpose other than that for which we make theSite available. The Site may not be used in connection with any commercial endeavors except those that are specifically endorsed or approved by us.
9.2. As a user of the Site, you agree not to: (i) Systematically retrieve data or other content from the Site to create or compile, directly or indirectly, a collection, compilation, database, or directory without written permission from us. (ii) Make any unauthorized use of the Site, including collecting usernames and/or email addresses of users by electronic or other means for the purpose of sending unsolicited email, or creating user accounts by automated means or under false pretences. (iii) Use a buying agent or purchasing agent to make purchases on the Site.(iv) Use the Site to advertise or offer to sell goods and services. (v) Circumvent, disable, otherwise interfere with security-related features of the Site, including features that prevent or restrict the use or copying of any Content or enforce limitations on the use of the Site and/or theContent contained therein. (vi) Engage in unauthorized framing of or linking to the Site. (vii) Trick, defraud, or mislead us and other users, especially in any attempt to learn sensitive account information such as user passwords. (viii) Make improper use of our support services or submit false reports of abuse or misconduct. (ix) Engage in any automated use of the system, such as using scripts to send comments or messages, or using any data mining, robots, or similar data gathering and extraction tools. (x) Interfere with, disrupt, or create an undue burden on the Site or the networks or services connected to the Site. (xi) Attempt to impersonate another user or person or use the username of another user. (xii) Sell or otherwise transfer your profile.(xiii) Use any information obtained from the Site in order to harass, abuse, or harm another person. (xiv)Use the Site as part of any effort to compete with us or otherwise use the Site and/or the Content for any revenue-generating endeavor or commercial enterprise. (xv) Decipher, decompile, disassemble, or reverse engineer any of the software or algorithms comprising or in any way making up a part of the Site. (xvi) Attempt to bypass any measures of the Site designed to prevent or restrict access to the Site, or any portion of the Site. (xvii) Harass, annoy, intimidate, or threaten any of our employees or agents engaged in providing any portion of the Site to you.(xviii) Delete the copyright or other proprietary rights notice from any Content. (xix) Copy or adapt the Site’s software, including but not limited to Flash, PHP, HTML, JavaScript, or other code.(xx) Upload or transmit (or attempt to upload or to transmit) viruses, Trojan horses, or other material, including excessive use of capital letters and spamming (continuous posting of repetitive text), that interferes with any party’s uninterrupted use and enjoyment of the Site or modifies, impairs, disrupts, alters, or interferes with the use, features, functions, operation, or maintenance of the Site. (xxi) Upload or transmit (or attempt to upload or to transmit) any material that acts as a passive or active information collection or transmission mechanism, including without limitation, clear graphics interchange formats (“gifs”), 1×1 pixels, web bugs, cookies, or other similar devices (sometimes referred to as “spyware” or “passive collection mechanisms” or “pcms”). (xxii) Except as may be the result of standard search engine or Internet browser usage, use, launch, develop, or distribute any automated system, including without limitation, any spider, robot, cheat utility, scraper, or offline reader that accesses the Site, or using or launching any unauthorized script or other software. (xxiii) Disparage, tarnish, or otherwise harm, in our opinion, us and/or the Site. (xxiv) Use the Site in a manner inconsistent with any applicable laws or regulations.
10. SUBMISSIONS
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback, or other information regarding the SP&D (“Submissions”) provided by you to us are non-confidential and shall become our sole property. We shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any lawful purpose, commercial or otherwise, without acknowledgment or compensation to you. You hereby waive all moral rights to any such Submissions, and you hereby warrant that any such Submissions are original with you or that you have the right to submit such Submissions. You agree there shall be no recourse against us for any alleged or actual infringement or misappropriation of any proprietary right in your Submissions.You acknowledge, consent and agree that we may, at our sole discretion and to the extent permitted by law, access, read, preserve and disclose your account information, usage history and Submissions in order to: (a) comply with any applicable law, regulation, legal process, or governmental request; (b) respond to claims that any Submission violates the rights of third parties, including intellectual property rights; (c) enforce these Terms of Use and investigate potential violations thereof; (d) detect, prevent, or otherwise address fraud, security, or technical issues; (e) respond to your requests for customer service; or (f) protect the rights, property, or personal safety or interests of Attentive, other users of the Site, or the public.
11. THIRD-PARTY WEBSITES AND CONTENT
The SP&D may contain (or you may be sent via the Site) links to other websites (“Third- PartyWebsites”) as well as articles, photographs, text, graphics, pictures, designs, music, sound, video, information, applications, software, and other content or items belonging to or originating from third parties (“Third-Party Content”). Such Third-Party Websites and Third-Party Content are not investigated, monitored, or checked for accuracy, appropriateness, or completeness by us, and we are not responsible for any Third-Party Websites accessed through the SP&D or any Third-Party Content posted on, available through, or installed from the SP&D, including the content, accuracy, offensiveness, opinions, reliability, privacy practices, or other policies of or contained in the Third-Party Websites or the Third-Party Content. Inclusion of, linking to, or permitting the use or installation of any Third-Party Websites or any Third-Party Content does not imply approval or endorsement thereof by us. If you decide to access the Third-Party Websites or to use or install any Third-Party Content, you do so at your own risk, and you should be aware that the Agreement no longer governs. You should review the applicable terms and policies, including privacy and data gathering practices, of any website to which you navigate from the SP&D or relating to any applications you use or install from the SP&D. Any purchases you make throughThird-Party Websites will be through other websites and from other companies, and we take no responsibility whatsoever in relation to such purchases which are exclusively between you and the applicable third party. You agree and acknowledge that we do not endorse the products or services offered on Third-Party Websites and you shall hold us harmless from any harm caused by your purchase of such products or services. Additionally, you shall indemnify and hold us harmless from any losses sustained by you or harm caused to you relating to or resulting in anyway from any Third-Party Content or any contact with Third-Party Websites.
12. SITE MANAGEMENT
12.1. We reserve the right, but not the obligation, to: (i) monitor the Site for violations of theStandard Agreement; (ii) take appropriate legal action against anyone who, in our sole discretion, violates the law or this Standard Agreement, including without limitation, reporting such user to law enforcement authorities; (iii) in our sole discretion and without limitation, refuse, restrict access to, limit the availability of, or disable (to the extent technologically feasible) access toSP&D or any portion thereof; (iv) in our sole discretion and without limitation, notice, or liability, to remove from the SP&D or otherwise disable all files and content that are excessive in size or are in any way burdensome to our systems; and (v) otherwise manage the SP&D in a manner designed to protect our rights and property and to maintain and facilitate the proper functioning of the Site.
13. PRIVACY POLICY
We care about data privacy and security. Please review our Privacy Policy: Attentive Inc. PrivacyPolicy. By using the site, you agree to be bound by our Privacy Policy, which is incorporated into this Standard Agreement and the Quote. Please be aware that your data may be transferred, processed and stored outside of your country and that your data may be subject to disclosure as required by applicable law.
14. TERM AND TERMINATION
14.1. The Agreement shall remain in full force and effect while you use the SP&D, or avail theServices, whichever is later.
14.2. Termination with cause: Without limiting any other provision of the Standard Agreement,Attentive reserves the right to, in its sole discretion, and without notice or liability, deny access to and use of the SP&D and/or refuse to provide the Services and deny access to the Deliverables in the event: (i) you commit a material breach of any terms of the Standard Agreement including specifically any representation, warranties or covenants; (ii) you are in breach of applicable law and such breach, in the opinion of Attentive, justifies termination of the Standard Agreement;(iii) you repeatedly breach the Standard Agreement in such a manner as to reasonably justify the opinion that your conduct is inconsistent with it having the intention or ability to give effect to the Standard Agreement; (iv) you suspend, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts; (v) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over you; Provided that, in case of a termination of the Standard Agreement pursuant to this section, you shall be liable to all Fees accrued till the date of termination or the date until which you have received any Services from Attentive.
14.3. WITHOUT LIMITING ANY OTHER PROVISION OF THE STANDARD AGREEMENT OF USE INCASE OF THE CIRCUMSTANCES DETAILED ABOVE, WE MAY TERMINATE THE STANDARD AGREEMENT AND RESTRICT YOUR USE OR PARTICIPATION IN THE SITE OR DELETE YOUR ACCOUNT AND ANY CONTENT OR INFORMATION THAT YOU POSTED AT ANY TIME, WITHOUT WARNING, IN OUR SOLE DISCRETION.
14.4. If we terminate or suspend your account for any reason, you are prohibited from registering and creating a new account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. In addition to terminating or suspending your account, we reserve the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress.
14.5. Termination or expiry of the Standard Agreement shall not affect any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Standard Agreement which existed at or before the date of termination or expiry.
14.6. In case of a termination or expiry of the Standard Agreement, Attentive shall handover all the Deliverables up to the date of termination or expiry.
14.7. Each Party acknowledges that the other Party has entered into the Agreement relying on the limitations of liability stated in this Section and that those limitations are an essential basis of the bargain between the parties. In addition to and without limiting any of the foregoing, noDisclaiming Entity will have any liability for any failure or delay resulting from any condition beyond the reasonable control of that Party, including governmental action or acts of terrorism, earthquake, fire, flood or other acts of God, labor conditions, power failures and Internet disturbances.
15. MODIFICATIONS AND INTERRUPTIONS
15.1. We reserve the right to change, modify, or remove the contents of the Site at any time or for any reason at our sole discretion without notice. However, we have no obligation to update any information on our Site. We also reserve the right to modify or discontinue all or part of theSite without notice at any time. We will not be liable to you or any third party for any modification, price change, suspension, or discontinuance of the Site.
15.2. We cannot guarantee the Site will be available at all times. We may experience hardware, software, or other problems or need to perform maintenance related to the Site, resulting in interruptions, delays, or errors. We reserve the right to change, revise, update, suspend, discontinue, or otherwise modify the Site at any time or for any reason without notice to you.You agree that we have no liability whatsoever for any loss, damage, or inconvenience caused by your inability to access or use the Site during any downtime or discontinuance of the Site. Nothing in the Standard Agreement or the Quote will be construed as estoppel or will obligate us to maintain and support the Site or to supply any corrections, updates, or releases in connection there with.
16. GOVERNING LAW AND JURISDICTION
16.1. The Agreement and your use of the SP&D are governed by and construed in accordance with the laws of the State of Delaware, United States of America without regard to its conflict of law principles.
16.2. The courts of Delaware shall have exclusive jurisdiction over any disputes arising out of the Agreement. You hereby waive all defenses of lack of personal jurisdiction, and forum non conveniens with respect to venue and jurisdiction. Application of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer InformationTransaction Act (UCITA) are excluded from the Agreement.
17. DISPUTE RESOLUTION
17.1. Informal Negotiations To expedite resolution and control the cost of any dispute, controversy, or claim related to the Agreement (each a “Dispute” and collectively, the “Disputes”)brought by either you or us (individually, a “Party” and collectively, the “Parties”), the Parties agree to first attempt to negotiate any Dispute (except those Disputes expressly provided below)informally for at least thirty (30) days before initiating the arbitration. Such informal negotiations commence upon written notice from one Party to the other Party.
17.2. Binding Arbitration
17.2.1. If the Parties are unable to resolve a Dispute through informal negotiations, the Dispute (except those Disputes expressly excluded below) will be finally and exclusively resolved by binding arbitration. The arbitration shall be governed by the laws of the state of Delaware and shall be commenced and conducted under London InternationalArbitration Centre (LIAC) Rules (as amended from time to time). In the event of an Arbitration, both parties shall appoint a sole arbitrator to finally settle the dispute. The arbitration may be conducted in person, through the submission of documents, or otherwise as may be agreed between the parties and permitted under the LIAC Rules. The arbitrator shall pass his or her award in writing. The award of the arbitrator shall be final and binding on both parties. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails todo so. The seat of Arbitration shall be in Delaware. Except as otherwise provided herein, the Parties may litigate in court to compel arbitration, or stay proceedings pending arbitration.
17.2.2. If for any reason, a Dispute proceeds in court rather than arbitration, the Dispute shall be commenced or prosecuted in the courts of Delaware, which shall have exclusive jurisdiction over any disputes that arise out of or in relation to the Agreement.
17.3. Restrictions The Parties agree that any arbitration shall be limited to the Dispute between the Parties individually. To the full extent permitted by law, (a) no arbitration shall be joined with any other proceeding; (b) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (c) there is no right or authority for anyDispute to be brought in a purported representative capacity on behalf of the general public or any other persons.
17.4. Exceptions to Informal Negotiations and Arbitration
17.4.1. The Parties agree that the following Disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: (i) any Disputes seeking to enforce or protect, or concerning the validity of, any of the intellectual property rights of a Party; (ii) any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy, or unauthorized use; and (iii) any claim for injunctive relief.
17.4.2. If this provision is found to be illegal or unenforceable, then neither Party will elect to arbitrate any Dispute falling within that portion of this provision found to be illegal or unenforceable and such Dispute shall be decided by a court of competent jurisdiction and theParties agree to submit to the personal jurisdiction of that court.
18. CORRECTIONS
There may be information on the Site that contains typographical errors, inaccuracies, or omissions, including descriptions, pricing, availability, and various other information. We reserve the right to correct any errors, inaccuracies, or omissions and to change or update the information on the Site at any time, without prior notice.
19. DISCLAIMER
THE SP&D ARE PROVIDED ON AN AS-IS AND AS-AVAILABLE BASIS. YOU AGREE THAT YOUR USE OF THE SP&D WILL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, UNDER THE AGREEMENT IN CONNECTION WITH THE SP&D AND THE SERVICES AND YOUR USE THEREOF, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, AND NON-INFRINGEMENT. WE MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE SP&D, THE SERVICES, OR THE CONTENT OF ANY WEBSITES LINKED TO THE SP&D AND WE WILL ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY
(1) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT AND MATERIALS,
(2) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS
TO AND USE OF THE SP&D AND THE SERVICES,
(3) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN,
(4) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SP&D AND THE SERVICES,
(5) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SP&D BY ANY THIRD PARTY, AND/OR
(6) ANY ERRORS OR OMISSIONS IN ANY CONTENT AND MATERIALS OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIATHE SP&D AND THE SERVICES. WE DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SP&D, ANY HYPERLINKED WEBSITE, OR ANY WEBSITE OR MOBILE APPLICATION FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND WE WILL NOT BE A PARTY TO OR INANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND ANY THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
20. LIMITATIONS OF LIABILITY AND FORCE MAJEURE
20.1. IN NO EVENT WILL WE OR OUR DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE TO YOU
OR
ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL,SPECIAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT, LOST REVENUE, LOSS OF DATA,
OR
OTHER DAMAGES ARISING FROM YOUR USE OF THE SP&D OR AVAILING OF THE SERVICES,
EVEN
IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION UNDER THE AGREEMENT,
WILL
AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO US DURING THE SIX (6)MONTH PERIOD PRIOR TO ANY CAUSE OF ACTION ARISING.
20.2. You acknowledge and agree that both Parties have entered into the Agreement relying on the limitations of liability stated in this Section and that those limitations are an essential basis of the bargain between the parties. In addition to and without limiting any of the foregoing, neither Party will have any liability for any failure or delay resulting from any condition beyond the reasonable control of that party, including governmental action or acts of terrorism, earthquake, fire, flood or other acts of God, labour conditions, power failures and Internet disturbances.
21. INDEMNIFICATION
21.1. You agree to defend, indemnify, and hold us including our subsidiaries, affiliates, and all ofour respective officers, agents, partners, and employees, harmless from and against any loss, damage, liability, claim, or demand, including reasonable attorneys’ fees and expenses, made by any third party due to or arising out of: (i) your Submissions; (ii) your use of the SP&D or availing of the Services; (iii) breach of any terms of the Agreement; (iv) any breach of your representations and warranties set forth in the Agreement; (v) your violation of the rights of a third party, including but not limited to intellectual property rights; or (vi) any overt harmful act toward any other user of the Site with whom you connected via the Site.
21.2. Notwithstanding the foregoing, we reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate, at your expense, with our defense of such claims. We will use reasonable efforts to notify you of any such claim, action, or proceeding which is subject to this indemnification upon becoming aware of it.
22. USER DATA
We will maintain certain data that you transmit to the Site for the purpose of managing the performance of the Site, as well as data relating to your use of the Site. Although we perform regular routine backups of data, you are solely responsible for all data that you transmit or that relates to any activity you have undertaken using the Site.
23. ELECTRONIC COMMUNICATIONS, TRANSACTIONS, AND SIGNATURES
Visiting the Site,sending us emails, and completing online forms constitute electronic communications. You consent to receive electronic communications, and you agree that all agreements, notices, disclosures, and other communications we provide to you electronically, via email and on theSite, satisfy any legal requirement that such communication be in writing. YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS, AND OTHER RECORDS, AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES, AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED BY US OR VIA THE SITE. You hereby waive any rights or requirements under any statutes, regulations, rules, ordinances, or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by any means other than electronic means.
24. MISCELLANEOUS
24.1. Unless otherwise specified in the Agreement and any policies or operating rules posted by us on the Site or in respect to the Site constitute the entire agreement and understanding between you and us. Our failure to exercise or enforce any right or provision of the Agreement shall not operate as a waiver of such right or provision. The Agreement operates to the fullest extent permissible by law.
24.2. You may not assign the Agreement or any of your rights or obligations, by operation of law or otherwise, without our prior written approval and any attempted assignment will be void. We may assign any or all of our rights and obligations to others at any time. We shall not be responsible or liable for any loss, damage, delay, or failure to act caused by any cause beyond our reasonable control. If any provision or part of a provision of the Agreement is determined to be unlawful, void, or unenforceable, that provision or part of the provision is deemed severable from the Agreement and does not affect the validity and enforceability of any remaining provisions.
24.3. Nothing in the Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the Parties, constitute any of the Parties as the agent of anotherParty, or authorise any of the Parties to make or enter into any commitments for or on behalf of any other Party. Each Party confirms it is acting on its own behalf and not for the benefit of any other person.
24.4. You agree that the Agreement will not be construed against us even in instances where we have drafted them. You hereby waive any and all defenses you may have based on the electronic form of the Standard Agreement and the lack of signing by the parties hereto to execute theStandard Agreement.
24.5. If any provision of the Agreement is held by a court or other tribunal of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of theAgreement will continue in full force and effect.
25. SURVIVAL
Upon termination of your use of the Site or termination of the Agreement for any reason, in addition to this section, the following sections will survive termination: Governing Law andJurisdiction, Dispute Resolution, Submissions, User Representations, Disclaimer, Limitation ofLiability and Force Majeure, Term and Termination, Assignment, Indemnification, andMiscellaneous, Contact Us.
26. CONTACT US
26.1. In order to resolve a complaint regarding the SP&D or to receive further information regarding use of the SP&D, please contact us at:Attentive Inc, 1013 Centre Road, Suite 403-B, Wilmington, Delaware 19805, United StatesEmail: info@attentiveinc.ai
