Date of Last Modification: July 10, 2009
PLEASE READ CAREFULLY - THIS IS A BINDING CONTRACT
Any capitalized term not defined in this Agreement shall have the meaning assigned to it in the TOU as posted on the Website.
This Agreement includes the following Sections:
- The Services
- Modifications to this Agreement
- Term, Termination and Suspension
- Authorization and License to Use the Services
- Permitted Uses Generally
- Restricted Uses Generally
- Additional Restricted Uses
- Monitoring Your Use of the Bestcovery Web Services
- License to Use Bestcovery Properties
- Use of Marks
- Downtime and Service Suspensions
- Intellectual Property
- Representations and Warranties
- Limitations of Liability
- Export Compliance and Restrictions
- Disputes and Arbitration
- Governing Law
- Miscellaneous Provisions
The services covered by this Agreement include the Bestcovery Widget and all other web services that Bestcovery makes available to you free of charge on the Bestcovery.com Web site at www.bestcovery.com ("Website"), except those web services for which we specifically provide a separate agreement in writing that is executed by both parties (collectively Services).
Modifications to this Agreement
You agree that we may modify this Agreement or any policy or other terms referenced in this Agreement (collectively, "Additional Policies") at any time by posting a revised version of the Agreement or such Additional Policies on the Website or our "Bestcovery Widget Gallery" pages accessible at or through http://www.bestcovery.com/API_home.
The revised terms shall be effective upon posting (unless we expressly state otherwise at the time of posting). If the revised terms cause your use of any Widget that you had implemented prior to posting of the revised terms, to be in violation of the Agreement, then you shall have ten (10) calendar days after posting to bring such Widgets into compliance or to remove such non-conforming or violating implementations and cease any use of the Services.
By continuing to use or receive the Services after the effective date of any revisions to this Agreement or any Additional Policies, you agree to be bound by the revised Agreement of any revised Additional Policies. It is your responsibility to regularly check for changes to this Agreement and the Additional Policies on Website and the Bestcovery Widget Gallery pages, as applicable. This Agreement was last modified on the date set forth at the top of this Agreement.
Term, Termination and Suspension
The term of this Agreement ("Term") will commence, and you may begin using the Services. The Agreement will remain in effect until terminated by you or us in accordance with the terms of this Agreement.
You may terminate this Agreement for any reason or no reason at all, at your convenience, by providing us written notice of termination in accordance with Notice Section herein.
We may suspend your right and license to use any or all Services or terminate this Agreement in its entirety (and, accordingly, cease providing all Services to you), for any reason or for no reason, at our discretion at any time, immediately upon our provision of notice to you in accordance with the notice provisions set forth in Notice Section herein.
We may suspend or terminate your right and license to use any individual Services or any part thereof, or terminate this Agreement in its entirety (and, accordingly, your right to use all Services), for cause effective as set forth below:
Immediately upon our notice to you in accordance with the notice provisions set forth in Notice Section herein if: (i) you attempt a denial of service attack on any of the Services; (ii) you seek to hack or break any security mechanism on any of the Services or we otherwise determine that your use of the Services or the Bestcovery Properties poses a security or service risk to us, to any user of services offered by us, to any third party partners or sellers on Website, or to any of our or their respective customers or may subject us or any third party to liability, damages or danger; (iii) you otherwise use the Services in a way that disrupts or threatens the Services; (iv) we determine, in our sole discretion, there is evidence of fraud with respect to your account; (v) you use any of the Bestcovery Content (as defined in herein) or Marks (as defined herein) other than as expressly permitted herein; (vi) we receive notice or we otherwise determine, in our sole discretion, that you may be using Bestcovery' Services for any illegal purpose or in a way that violates the law or violates, infringes, or misappropriates the rights of any third party; (vii) we determine, in our sole discretion, that our provision of any of the Services to you is prohibited by applicable law, or has become impractical or unfeasible for any legal or regulatory reason; or (viii) subject to applicable law, upon your liquidation, commencement of dissolution proceedings, disposal of your assets, failure to continue your business, assignment for the benefit of creditors, or if you become the subject of a voluntary or involuntary bankruptcy or similar proceeding.
Ten calendar (10) days following our provision of notice to you in accordance with the notice provisions set forth in Notice Section herein if you breach any other provision of this Agreement and fail, as determined by us, in our sole discretion, to cure such breach within such 5 calendar day period.
Upon termination of this Agreement for any reason all of your rights under this Agreement shall immediately terminate; and you shall immediately return, or if instructed by us, destroy all Bestcovery Confidential Information (as defined herein) and any Bestcovery Properties then in your possession.
In the event this Agreement is terminated for any reason, the following Sections will survive any such termination:
- License to Use the Bestcovery Properties,
- Use of Marks,
- Intellectual Property,
- Representations and Warranties,
- Limitations of Liability,
- Export Compliance and Restrictions,
- Disputes and Arbitration,
- Governing Law,
- Notices, and
- Miscellaneous Provisions
Authorization and License to Use the Services
Subject to your acceptance of and compliance with this Agreement we hereby grant you a limited, non-exclusive, non-transferable, non-sublicensable right and license, in and under our intellectual property rights, to access and use the Services, solely in accordance with the terms and conditions of this Agreement.
Permitted Uses Generally
You may write or generate a software application or a website ("Applications") that interfaces with the Services. Such Applications shall contain content, graphics, drawings and text that are generated by you ("Your Content"). You acknowledge that we may change, deprecate or republish Widgets (as defined herein) for any Service or feature of a Service from time to time, and that it is your responsibility to ensure that calls you make to any Service are compatible with then-current Widgets for the Service. You further acknowledge that we may change or remove features or functionality of the Services, or the Service in its entirety, at any time.
Restricted Uses Generally
You may not interfere or attempt to interfere in any manner with the functionality or proper working of the Services.
You may not compile or use the Website or any other information obtained through the Services for the purpose of direct marketing, spamming, unsolicited contacting of sellers, experts, partners, or customers, or other impermissible advertising, marketing or other activities, including, without limitation, any activities that violate anti-spamming laws and regulations.
You may not remove, obscure, or alter any notice of any Mark, or other intellectual property or proprietary right designation appearing on or contained within the Services or on the Website.
Subject to the terms and conditions of this Agreement, you may generally publicize your use of the Services; however, you may not issue any press release with respect to the Services or this Agreement without our prior written consent.
Additional Restricted Uses
Services includes, among other things, data feeds proprietary to Bestcovery regarding products and services covered on the Website. Our purpose in making these Services available is to allow certain websites, which we deem to be appropriate Bestcovery marketing partners, to drive traffic to the Website.
You are not permitted to use Services with any Application or for any use that does not have, as its principal purpose, driving traffic to the Website.
Without our prior written approval, you may not access or use the Services for the purpose of aggregating, analyzing, extracting, or repurposing any Bestcovery Content or Services.
Unless we have provided you our express written consent in advance, you are not permitted to use Services in connection with any handheld, mobile or mobile phone application.
Your use of the Services and Bestcovery Properties must be strictly limited to promoting the availability of content on the Website and you must link each use of the Services to the related product detail page or best list page of the Bestcovery Website.
You may not: (i) link any of the Bestcovery Properties to any page of a website other than the Website; or (ii) in conjunction with any services, direct traffic to any commercial page of a website other than the Website.
If you have complied with the linking obligations and restrictions herein, you may have links within other areas of your Application (i.e., that are not Bestcovery Properties) to websites other than the Bestcovery Website, but you may not use a Bestcovery Property in connection with any such link.
Unless we have provided you our express written consent in advance, you may not sell, resell, redistribute, sublicense, or transfer (i) all or any portion of the Bestcovery Properties, or (ii) Applications that are built using Services or that incorporate any Bestcovery Property (including any Bestcovery Content). For example, you may not use your Application on or within any other application, platform, website or service of a third party (including social networking sites) where such third party requires you to sublicense or give any other rights to Bestcovery Properties to such third party or any other person. If you wish to sell, resell, redistribute, sublicense or transfer any Bestcovery Properties in connection with your Application (including displaying the Bestcovery Properties in connection with an Application for which you are charging a fee) or any Applications that are built using Service, you should contact us at email@example.com to seek our prior approval.
You may store a link for a product or service image included in Bestcovery Properties for up to 24 hours, but you may not store or cache the product image itself.
You specifically acknowledge and agree that, at any time, Bestcovery may direct you to delete any or all of the Bestcovery Properties, and you will promptly comply with any such direction.
You may only create one account per entity, person, company or email address. Your login information is for your personal use only, and you may not sell, transfer, sublicense or otherwise disclose your account or Services to any other party. You are responsible for maintaining the secrecy and security of your account. You are fully responsible for all activities that occur under your account, regardless of whether such activities are undertaken by you or an authorized or unauthorized third party.
Monitoring Your Use of the Bestcovery Web Services
You agree to provide information and/or other materials related to your Applications as reasonably requested by us to verify your compliance with this Agreement.
We may crawl or otherwise monitor the external interfaces of your Application for the purpose of verifying your compliance with this Agreement. You may not seek to block or otherwise interfere with such crawling or monitoring (and we may use technical means to overcome any methods used on your Application to block or interfere with our crawling or monitoring).
You may not use Services in conjunction with any email. If Bestcovery, in its sole discretion shall in writing grant you the permission to use Services in conjunction with any electronic communications then such use must adhere to all applicable laws. Without limiting the foregoing, the following are strictly prohibited under any circumstances:
Sending of Spam/Unsolicited email, including but not limited to: Pyramid schemes, chain letters, sending any mail in contravention of the CAN SPAM Act of 2003 or other applicable state or federal laws and regulations.
Forgery including but not limited to: Altering or obscuring mail headers or assuming the identity of a sender without the explicit permission of that sender.
License to Use the Bestcovery Properties
We may make available to you, for your installation, copying and/or use in connection with the Services, from time to time, a variety of software, data and other content and printed and electronic documentation (all such materials except those specifically made available by us under separate license terms, the "Bestcovery Properties"). Subject to your acceptance of this Agreement, ongoing compliance with its terms and conditions with respect to the subject Service, we hereby grant to you, without the right to sublicense, a limited, non-exclusive, non-transferable license during the Term, under our intellectual property or proprietary rights in the Bestcovery Properties, only to install, copy and use the Bestcovery Properties solely in connection with and as necessary for your use of such Services and solely to the extent in compliance with all the terms and conditions of this Agreement. The Bestcovery Properties may include, without limitation:
- Proprietary application programming interfaces or embedded software applications ("Widget");
- Developer tools for use in connection with the Widgets;
- Articles and documentation for use in connection with the use and implementation of the Widgets (collectively, "Documentation");
- Specifications describing the operational and functional capabilities, use limitations, technical and engineering requirements, and testing and performance criteria relevant to the proper use of a Service and its related Widgets and other technology;
- Textual materials, such as textual product and services information made available through Services ("Text Content"); and
- Other forms of digital content, data, text, images, logos, user interface designs and other creative designs, audio and video (with the Text Content , collectively, "Bestcovery Content").
Except as may be expressly authorized under this Agreement:
- You may not, and may not attempt to, modify, alter, tamper with, repair, or otherwise create derivative works of any software included in or accessed via the Bestcovery Properties;
- You may not, and may not attempt to, reverse engineer, disassemble, or decompile the Bestcovery Properties or the Services or apply any other process or procedure to derive the source code of any software included in or accessed via the Bestcovery Properties;
- You may edit Text Content only by deleting text from and reducing the length of the Text Content and only if, in doing so, you do not materially alter the meaning of the Text Content or cause the Text Content to become factually incorrect or misleading;
- You may not add additional information to the Text Content (e.g., you may not insert words into an expert best list, best list titles or product or service description); and
- You hereby irrevocably assign to us any and all intellectual property or proprietary rights in such edited Text Content.
Use of Marks
Your use of any trademarks, service marks, service or trade names, logos, and other designations of Bestcovery and its affiliates, licensors and/or third parties who contribute to the Bestcovery Website, hereinafter "Marks"), shall strictly comply with the following provisions. You may use the Marks in conjunction with the display of the Bestcovery Content. You may use the Marks only in the form in which we make them available to you and not in any manner that disparages Bestcovery, its affiliates or its licensors, or that otherwise dilutes any Mark. Other than your limited right to use the Marks as provided in this Agreement, we and our licensors retain all right, title, and interest in and to the Marks. You will not at any time now or in the future challenge or assist others to challenge the validity of the Marks, or attempt to register confusingly similar trademarks, trade names, service marks or logos. You agree to follow our Trademark Use Guidelines posted on the Bestcovery Trademark Guidelines page (the "Trademark Guidelines") as those guidelines may change from time to time. The Trademark Guidelines are incorporated herein by reference. You must immediately discontinue use of any Mark as specified by us at any time in writing. We may modify any Marks provided to you at any time, and upon notice, you will use only the modified Marks and not the old Marks. Other than as specified in this Agreement, you may not use any trademark, service mark, trade name or other business identifier of Bestcovery or its affiliates or third parties that provide content on the Bestcovery Website unless you obtain Bestcovery's and any applicable third party's prior written consent. The foregoing prohibition includes the use of "Bestcovery," any other trademark of Bestcovery, Bestcovery or its affiliates, or variations or misspellings of any of them, in the name of an Application or in a URL to the left of the top-level domain name (e.g., ".com", ".net", ".co.uk", etc.) -- for example, a URL such as "Bestcovery.mydomain.com", "Bestcavery.com" or "Bestcoverypicks.net" are expressly prohibited. Any use you make of the Marks shall inure to our benefit and you hereby irrevocably assign to us all right, title and interest in the same. In addition, you agree not to misrepresent or embellish the relationship between us and you, for example by implying that we support, sponsor, endorse, or contribute money to you or your business endeavors.
The rights granted by Bestcovery in this Agreement with respect to the Bestcovery Properties, the Marks and the Services are nonexclusive, and Bestcovery reserves the right to: (i) itself act as a developer of products or services related to any of the products that you may develop in connection with the Bestcovery Properties or via your use of the Services; and (ii) appoint third parties as developers or systems integrators who may offer products or services which compete with Bestcovery or your Application.
Downtime and Service Suspensions
In addition to our rights to terminate or suspend Services to you as described herein, you acknowledge that: (i) your access to and use of the Services may be suspended for the duration of any unanticipated or unscheduled downtime or unavailability of any portion or all of the Services for any reason, including as a result of power outages, system failures or other interruptions; and (ii) we shall also be entitled, without any liability to you, to suspend access to any portion or all of the Services at any time, on a Service-wide basis: (a) for scheduled downtime to permit us to conduct maintenance or make modifications to any Service; (b) in the event of a denial of service attack or other attack on the Service or other event that we determine, in our sole discretion, may create a risk to the applicable Service, to you or to any of our other customers if the Service were not suspended; or (c) in the event that we determine that any Service is prohibited by law or we otherwise determine that it is necessary or prudent to do so for legal or regulatory reasons (collectively, "Service Suspensions"). Without limitation to the Disclaimer Section herein, we shall have no liability whatsoever for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that you may incur as a result of any Service Suspension. You understand and agree that we have no obligation to inform you of any Service Suspension in any event including but not limited to when we have scheduled such Service Suspension or know of its occurrence before the event.
You shall not disclose Bestcovery Confidential Information during the Term or at any time during the two (2) year period following the end of the Term. As used in this Agreement, "Bestcovery Confidential Information" means all nonpublic information disclosed by us, our business partners or our or their respective agents or contractors that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. Bestcovery Confidential Information includes, without limitation, (i) nonpublic information relating to our or our business partners' technology, customers, business plans, promotional and marketing activities, finances and other business affairs (including, but not limited to, any information about or involving one of our so-called beta tests or a beta test product that you obtain as a result of your participation in such beta test), (ii) third-party information that we are obligated to keep confidential, and (iii) the nature, content and existence of any discussions or negotiations between you and us. Bestcovery Confidential Information does not include any information described in the next paragraph herein or any information that you are required to disclose by law.
Notwithstanding any other provision in this Agreement, you shall not have any confidentiality obligation to us under this Section with respect to any information provided or made available by us hereunder, and we shall not have any confidentiality or non-use obligation to you hereunder with respect to any information, software application, data or content provided or made available by you hereunder that: (i) is or becomes publicly available without breach of this Agreement; (ii) can be shown by documentation to have been known to the receiving party at the time of its receipt from the disclosing party; (iii) is received from a third party who did not acquire or disclose the same by a wrongful or tortious act; or (iv) can be shown by documentation to have been independently developed by the receiving party.
If you and we are parties to a separate non-disclosure agreement ("Separate NDA") and there is a conflict between the terms of the Separate NDA and the terms of this Section, the terms of the Separate NDA shall control.
Other than the limited use and access rights and licenses expressly set forth in this Agreement, we reserve all right, title and interest (including all intellectual property and proprietary rights) in and to: (i) the Services; (ii) the Bestcovery Properties; (iii) the Marks; and (iv) any other technology and software that we provide or use to provide the Services and the Bestcovery Properties. You do not, by virtue of this Agreement or otherwise, acquire any ownership interest or rights in the Services, the Bestcovery Properties, the Marks, or other technology and software (including third party technology and software), except for the limited use and access rights described in this Agreement.
During and after the term of the Agreement, with respect to any of the Services that you elect to use, you will not assert, nor will you authorize, assist, or encourage any third party to assert, against us or any of our experts, end users, vendors, business partners (including third party sellers on websites operated by or on behalf of us), licensors, sublicensees, or transferees, any patent infringement or other intellectual property infringement claim with respect to such Services.
Representations and Warranties
You represent and warrant that you will not use the Services, Bestcovery Properties and/or your Application and Your Content: (i) in a manner that infringes, violates or misappropriates any rights of us or any third party; (ii) to engage in spamming or other impermissible advertising, marketing or other activities, including, without limitation, any activities that violate anti-spamming laws and regulations, including, without limitation, the CAN SPAM Act of 2003; (iii) in any manner that constitutes or facilitates the illegal export of any controlled or otherwise restricted items, including, without limitation, software, algorithms or other data that is subject to export laws; and/or (iv) in a way that is otherwise illegal or promotes illegal activities, including, without limitation, in a manner that might be libelous or defamatory or otherwise malicious or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age.
You represent and warrant: (i) that you are solely responsible for the development, operation, and maintenance of your Application and for Your Content, including without limitation, the accuracy, security, appropriateness and completeness of Your Content and all product-related materials and descriptions; (ii) that you have the necessary rights and licenses, consents, permissions, waivers and releases to use and display your Application and Your Content; (iii) that your Application and Your Content are commercially viable content that is distinct and unique from the Bestcovery Content and that neither Your Application nor Your Content (a) contains obscene, pornographic, or hateful content or violates, misappropriates or infringes any rights of us or any third party, (b) constitutes defamation, invasion of privacy or publicity, or otherwise violates any rights of any third party, or (c) is designed for use in any illegal activity or promotes illegal activities, including, without limitation, in a manner that might be libelous or defamatory or otherwise malicious, illegal or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age; (iv) that neither your Application nor Your Content contains any Harmful Components; and (v) to the extent to which you use any of the Marks, that you will conduct your business in a professional manner and in a way that reflects favorably on the goodwill and reputation of Bestcovery.
You represent and warrant that you will not use, and will not authorize any third party to use, any Public Software in connection with the Services in any manner that requires, pursuant to the license applicable to such Public Software, that any Bestcovery Properties or Services be (a) disclosed or distributed in source code form, (b) made available free of charge to recipients, or (c) modifiable without restriction by recipients. With respect to any Feedback, you represent and warrant that such Feedback, in whole or in part, contributed by or through you, (i) contains no third party software or any software that may be considered Public Software and (ii) does not violate, misappropriate or infringe any intellectual property rights of any third party. "Public Software" means any software, documentation or other material that contains, or is derived (in whole or in part) from, any software, documentation or other material that is distributed as free software, open source software (e.g., Linux) or similar licensing or distribution models, including, but not limited to software, documentation or other material licensed or distributed under any of the following licenses or distribution models, or licenses or distribution models similar to any of the following: (i) GNU's General Public License (GPL), Lesser/Library GPL (LGPL), or Free Documentation License, (ii) The Artistic License (e.g., PERL), (iii) the Mozilla Public License, (iv) the Netscape Public License, (v) the Sun Community Source License (SCSL), (vi) the Sun Industry Standards License (SISL), (vii) the BSD License and (viii) the Apache License.
You represent and warrant that Your acceptance and execution of this Agreement and performance of Your obligations hereunder do not and will not violate any agreement to which you are a party or by which Your are bound. You Represent and warrant that you are not now, and will not during the term of this Supplement be, owned (in whole or in part), employed by, affiliated with or be an agent of, any website or company that reasonably could be construed to be a direct competitor of Bestcovery. If there is any issue about who might be a direct competitor of Bestcovery, you will defer to Bestcovery to resolve such issue in the latter's reasonable discretion.
You represent and warrant that: (i) the information you provide in connection with your registration for the Services is accurate and complete; (ii) if you are registering for the Services as an individual, that you are at least 18 years of age and have the legal capacity to enter into this Agreement; and (iii) if you are registering for the Services as an entity or organization, (a) you are duly authorized to do business in the country or countries where you operate, (b) the individual using the Bestcovery Widget and therefore agreeing to this Agreement meets the requirements of subsection (ii) above and is an authorized representative of your entity, and (c) your employees, officers, representatives and other agents accessing the Services are duly authorized to access the Services and to legally bind you to this Agreement and all transactions conducted under your account.
You warrant, when executed (by pressing/clicking the "Submit " button on Bestcovery Widget pages or any Bestcovery Widget page with a "Submit" button), this Agreement will constitute a legal, valid and binding obligation for you, enforceable against you in accordance with its terms.
BESTCOVERY PROPERTIES, THE MARKS, THE SERVICES AND ALL TECHNOLOGY, SOFTWARE, FUNCTIONS, CONTENT, IMAGES, MATERIALS AND OTHER DATA OR INFORMATION PROVIDED BY US OR OUR LICENSORS IN CONNECTION THEREWITH (COLLECTIVELY THE SERVICE OFFERINGS) ARE PROVIDED "AS IS". WE AND OUR LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SERVICE OFFERINGS. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, WE AND OUR LICENSORS DISCLAIM ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. WE AND OUR LICENSORS DO NOT WARRANT THAT THE SERVICE OFFERINGS WILL FUNCTION AS DESCRIBED, WILL BE UNINTERRUPTED OR ERROR FREE, OR FREE OF HARMFUL COMPONENTS, OR THAT THE DATA YOU STORE WITHIN THE SERVICE OFFERINGS WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. WE AND OUR LICENSORS SHALL NOT BE RESPONSIBLE FOR ANY SERVICE INTERRUPTIONS, INCLUDING, WITHOUT LIMITATION, POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS, INCLUDING THOSE THAT AFFECT THE RECEIPT, PROCESSING, ACCEPTANCE, COMPLETION OR SETTLEMENT OF ANY PAYMENT SERVICES. NO ADVICE OR INFORMATION OBTAINED BY YOU FROM US OR FROM ANY THIRD PARTY OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
In addition to the foregoing, we specifically disclaim all liability, and you shall be solely responsible for the development, operation, and maintenance of your Application (including any Applications that you develop and make available, bundle or comingle with the Services) and for all materials that appear on or within your Application and you agree that you shall, without limitation, be solely responsible for:
- The technical operation of your Application and all related equipment;
- The accuracy and appropriateness of any materials posted on or within your Application (including, among other things, any product-related materials);
- Ensuring that any materials posted on your site or within your Application are not illegal and do not promote illegal activities, including without limitation any activities that might be libelous or defamatory or otherwise malicious, illegal or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age;
- Any of your users' or customers' claims relating to your Application or any Services utilized in connection with your Application; and
Additionally, the Website and/or the Services may contain links to websites that are not under our control ("Third Party Sites"). We are not responsible for the contents or functionality of any Third Party Sites or any website that can be accessed via links on any Third Party Site. We provide these links to you as a convenience and the inclusion of any such links does not constitute or imply our endorsement or validation of any Third Party Site.
Limitations of Liability
NEITHER WE NOR ANY OF OUR LICENSORS SHALL BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) IN CONNECTION WITH THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY SUCH DAMAGES RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICES; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES; OR (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR CONTENT. IN ANY CASE, OUR AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU TO US HEREUNDER FOR THE SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
You agree to indemnify, defend and hold us, our affiliates and licensors, each of our and their business partners (including without limitation third party experts, third party partners, third party sellers, or websites operated by or on behalf of us) and each of our and their respective employees, officers, directors and representatives, harmless from and against any and all claims, losses, damages, liabilities, judgments, penalties, fines, costs and expenses (including reasonable attorneys fees), arising out of or in connection with any claim arising out of (i) your use of the Services and/or Bestcovery Properties in a manner not authorized by this Agreement, and/or in violation of the applicable restrictions, and/or applicable law, (ii) your Application, Your Content, or the combination of either with other applications, content or processes, including but not limited to any claim involving infringement or misappropriation of third-party rights and/or the use, development, design, manufacture, production, advertising, promotion and/or marketing of your Application and/or Your Content, (iii) your violation of any term or condition of this Agreement or any applicable Additional Policies, including without limitation, your representations and warranties, or (iv) you or your employees' or personnel's negligence or willful misconduct.
We agree to promptly notify you of any claim subject to indemnification; provided that our failure to promptly notify you shall not affect your obligations hereunder except to the extent that our failure to promptly notify you delays or prejudices your ability to defend the claim. At our option, you will have the right to defend against any such claim with counsel of your own choosing (subject to our written consent) and to settle such claim as you deem appropriate, provided that you shall not enter into any settlement without our prior written consent and provided that we may, at any time, elect to take over control of the defense and settlement of the claim.
Export Compliance and Restrictions
You shall, in connection with your use of the Services or the Bestcovery Properties, comply with all applicable export and re-export control laws and regulations, including the Export Administration Regulations and country-specific economic sanctions programs implemented by the Office of Foreign Assets Control in connection with your use of the Services or Bestcovery Properties.
Disputes and Arbitration
Except for disputes arising from an alleged violation of intellectual property rights or breach of confidentiality, for which the injured party may suffer irreparable harm and may seek a restraining order, preliminary injunctive relief, an injunction, specific performance or other equitable relief and/or legal remedies, and actions to enforce the decisions of the arbitrators, for which action may be taken in any court of competent jurisdiction, in Los Angeles, California, all disputes arising out of or related to this Agreement, including the scope, the construction or application of this Agreement, shall be resolved by arbitration in accordance with the commercial arbitration rules of the American Arbitration Association then in force. Any controversy or claim shall be arbitrated on an individual basis and shall not be consolidated in any arbitration with any claim or controversy of any other party, unless agreed to by Bestcovery at it sole discretion. The arbitration hearings and all meetings pursuant to this section shall be held in Los Angeles, California, USA, and shall be conducted in English. If the parties cannot agree upon a single arbitrator within twenty (20) calendar days after demand by either of them, each party shall select one arbitrator knowledgeable about Internet commerce in California, and notify the other of its selection, and such two arbitrators shall select a third from a list of arbitrators (with knowledge of the Internet industry) qualified by the American Arbitration Association in California. If this procedure for selecting arbitrators fails, then a neutral arbitrator based in California with knowledge of Internet commerce in California and the USA generally shall be selected by the American Arbitration Association to resolve the dispute. The arbitrator(s) shall conduct a hearing within sixty (60) days after their selection. A majority of the arbitrators (if there is more than one pursuant to this clause) shall determine the decision/award, which shall be rendered within ten (10) days after the completion of the hearing. The decision of the arbitrator(s) shall be final and binding upon the parties both as to law and to fact, and shall not be appealable to any court in any jurisdiction. The parties shall share the expenses of the arbitrators equally. Nothing in any indemnification provision hereunder shall be construed as having any bearing on the award of attorneys' fees or arbitrators' fees under this section.
You further acknowledge that our rights in the Bestcovery Properties are of a special, unique, extraordinary character, giving them peculiar value, the loss of which cannot be readily estimated and may not be adequately compensated for in monetary damages.
By using the Services, you agree that the laws of the State of California, without regard to principles of conflicts of laws, will govern this Agreement and any dispute of any sort that might arise between you and us. The parties expressly exclude application of the United Nations Convention for the International Sale of Goods to this Agreement.
Except as otherwise set forth herein, notices made by us to you under this Agreement that affect our partners generally (e.g., notices of amended Agreements, updated fees, etc.) will be posted on the Website. Notices made by us under this Agreement for you or your account specifically (e.g., notices of breach and/or suspension) will be provided to you via the email address provided to us by you or in any updated email address you provide to us in accordance with standard account information update procedures we may provide from time to time. It is your responsibility to keep your email address current and you will be deemed to have received any email sent to any such email address, upon our sending of the email, whether or not you actually receive the email.
Nothing in this Agreement is intended to or does create any type of joint venture, creditor-debtor, escrow, partnership or any employer/employee or fiduciary or franchise relationship between you and us (or any of our affiliates). You understand and acknowledge that we are not certifying nor endorsing, and have no obligation to certify or endorse, any of your Applications or Your Content.
If you authorize, assist, encourage or facilitate another person or entity to take any action related to the subject matter of this Agreement, you shall be deemed to have taken the action yourself.
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Website or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred. No waiver of any breach of any provision of this agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an officer of Bestcovery.
This Agreement incorporates by reference all policies and guidelines posted on the Bestcovery Website, including all Additional Policies, and constitutes the entire agreement between you and us regarding the subject matter hereof and supersedes any and all prior or contemporaneous representation, understanding, agreement, or communication between you and us, whether written or oral, regarding such subject matter.