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Terms of service

Effective Date: October 1, 2025

Last Updated: August 30, 2025

IMPORTANT NOTICE: THIS AGREEMENT CONTAINS THE FOLLOWING KEY TERMS THAT AFFECT YOUR LEGAL RIGHTS AS DETAILED IN THE SECTIONS NOTED. PLEASE READ CAREFULLY.

  • A BINDING ARBITRATION PROVISION (Section 15(b)),
  • A WAIVER OF JURY TRIALS (Section 15(e)),
  • A WAIVER OF CLASS ACTIONS (Section 15(f)),
  • AUTOMATIC RENEWALS (Sections 6 & 7),
  • LIMITATION OF LIABILITY (Section 14)

 

BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING A SERVICE ORDER THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT.

IF YOU REGISTER FOR A FREE TRIAL OF OUR SERVICES OR FOR FREE SERVICES, THE APPLICABLE PROVISIONS OF THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL OR THOSE FREE SERVICES.

YOUR USE OF THE SERVICES IS ALSO GOVERNED BY OUR PRIVACY POLICY, AVAILABLE AT www.d8averse.com/privacy-policy,  WHICH IS INCORPORATED HEREIN BY REFERENCE.

BY CONTINUING TO ACCESS OR USE OUR SERVICES AFTER CHANGES TAKE EFFECT, YOU AGREE TO BE BOUND BY THE REVISED TERMS.

IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND YOUR AFFILIATES TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICE.

  1. Definitions
    1. “Affiliate” means any entity that, directly or indirectly, controls, is controlled by or is under common control with such entity (but only for so long as such control exists), where “control” means the ownership of more than 50% of the outstanding shares or securities representing the right to vote in the election of directors or other managing authority of such entity.
    2. “Agreement” means these Terms of Service and all Service Orders you enter into with us.
    3. “Authorized User” means your employees or contractors for whom you create a unique user name and password under your account.
    4. “Credits” means the fees charged for the creation or entry of a pole record in the use of certain functionality in the Services.
    5. “Direct Competitor” means any entity that provides or develops software, applications, or services substantially similar to the Services, including but not limited to utility pole data capture, infrastructure data management, or related augmented reality-based data collection tools.
    6. “Documentation” means our user documentation found at https://d8acapture.com
    7. “Intellectual Property Rights” means all intellectual property rights, including copyrights, patents, trademarks, service marks, trade secrets, and any other proprietary rights recognized under applicable law.
    8. “Personally Identifiable Information” (PII) means information that can be used to distinguish or trace an individual’s identity, either alone or when combined with other information that is linked or linkable to a specific individual.
    9. “Privacy Policy” means our privacy policy available at www.d8averse.com/privacy-policy, as may be updated from time to time.
    10. “Regulated Data” means personal data, personal information, non-public personal information, personally identifiable information, health information, cardholder data or any similarly regulated data (e.g., “Sensitive Personal Data,” “Protected Health Information,” etc.) as defined under relevant privacy or data protection laws, including the European Union General Data Protection Regulation (Regulation (EU) 2016/679, as amended), Gramm-Leach-Bliley Act, Health Insurance Portability and Accountability Act of 1996, US Children’s Online Privacy Protection Act, and Family Educational Rights and Privacy Act. Without limitation, “Regulated Data” includes: personal financial and financial account information, sexual orientation, personal medical or health information, personal information of children under 13, personal education records, and social security, national identity, national insurance, and similar personal identifiers.
    11. “Scope Limitations” means those limitations on the use of a Service that are set forth in a Service Order (e.g., task limits, user limits or data limits).
    12. “Service” means the service identified in the Service Order, as we may modify the service from time to time in our discretion, together with corresponding software that we make available for download from time to time as part of such Service.
    13. “Service Order” means an ordering document entered into between you and us specifying the services to be provided thereunder, including any addenda and supplements thereto. An online registration or self-service sign-up page may also constitute a Service Order if it requires you to accept these Terms of Service when registering.
    14. “Site” means our websites, including www.d8acapture.com and www.d8averse.com, and any subdomains or related sites.
    15. “Subscriber Data” means any data that you upload into the Service, or otherwise provided for processing by the Service, by or on behalf of you and your Affiliates in accordance with this Agreement. Subscriber Data includes all metadata, logs, analytics, and derivative works generated from such data through the use of the Service.
    16. “Subscription Fees” means the fees for the Service specified in the Service Order.
    17. “Support Services” means our then-current technical support services offering, as described at www.d8acapture.com.
    18. “We” or “Us” or “Our” means Inversion Solutions, LLC, unless expressly specified in a Service Order otherwise.
    19. “You” or “Your” means the customer named on the Service Order, the person indicating acceptance of this Agreement, or if the person indicating acceptance of this Agreement is acting on behalf of a company or other legal entity, such company or legal entity.
 
  1. Site Access and Use
    1. Use of the Service. Subject to the terms and conditions of this Agreement, we grant to you (and if set forth in a Service Order, your Affiliates) a limited, worldwide, non-exclusive, non-transferable (except as explicitly permitted in this Agreement) right during the term of this Agreement to remotely access and use the Service solely in accordance with the Documentation. Your rights to use the Service are subject to any Scope Limitations and contingent upon your compliance with the Scope Limitations and this Agreement. You are responsible for maintaining the confidentiality of your account credentials and for all activities that occur under your account. You are solely responsible for your and each Authorized Users’ use of the Services and all activities occurring using your Authorized User’s login credentials. You acknowledge that we may, but have no obligation to, monitor use of the Service, but we may remove or disable any information that you make publicly available on the Service at any time for any reason or for no reason at all. We are not responsible for the availability, accuracy, appropriateness, or legality of Subscriber Data or any other information you may access using the Service.
    2. Use of the Documentation. Subject to the terms and conditions of this Agreement, we grant to you and your Affiliates a limited, worldwide, non-exclusive, non-transferable (except as explicitly permitted in this Agreement) right during the term of this Agreement to reproduce, without modification, and internally use a reasonable number of copies of the Documentation solely in connection with use of the Service in accordance with this Agreement.
    3. Authorized User This Agreement restricts the use of the Service to Authorized Users, subject to any Scope Limitations. An Authorized User must be at least eighteen (18) years of age and accounts must not be shared among users. Authorized Users who are employees or contractors of a third party may access and use the Service solely to perform such third party’s contractual obligations to you subject to the use limitations set forth in this Agreement.
    4. Protection against Unauthorized Use. You, your Affiliates and Authorized Users will use reasonable efforts to prevent any unauthorized use of the Service or Documentation, and you will immediately notify us in writing of any unauthorized use that comes to your attention. If there is unauthorized use by anyone who obtained access to the Service or Documentation directly or indirectly through you, your Affiliate, or a Authorized User, you will take all steps reasonably necessary to terminate the unauthorized use. You will cooperate and assist with any actions taken by us to prevent or terminate unauthorized use of the Service or Documentation. We may, at our expense and no more than once every 12 months with reasonable notice, appoint our own personnel or an independent third party to verify that your use of the Service complies with the terms of this Agreement.
    5. Site Availability. Our Site may be accessible worldwide, but this does not mean all Sites are available in your country or that information available via the Site is legal or available in your country. Access to certain Sites (or certain Site features) in certain countries may be blocked by us or foreign governments. It is your responsibility to make sure your use of the Site is legal or available where you use them. Sites are not available in all languages. Subject to these Terms (including the Service Order, as applicable), you have a right to access and use the Site solely for your internal business purposes and only in accordance with any applicable Service Order, and any other written terms provided by us from time to time governing the use of our Site(s). IF YOU ARE OR BECOME A DIRECT COMPETITOR OF OURS, OR IF YOU ARE ACTING ON BEHALF OF A DIRECT COMPETITOR, YOU ARE EXPRESSLY PROHIBITED FROM ACCESSING OR USING ANY SITE OR SERVICE WITHOUT OUR PRIOR WRITTEN CONSENT. ANY SUCH UNAUTHORIZED ACCESS SHALL CONSTITUTE A MATERIAL BREACH OF THIS AGREEMENT AND MAY SUBJECT YOU TO LEGAL ACTION INCLUDING INJUNCTIVE RELIEF.
    6. Changes to the Terms of Use. We may revise and update these Terms of Service from time to time in our sole discretion. If we materially change these terms or service specific additional terms, we will provide existing customers with 30-days’ notice and the opportunity to review the changes, except (1) when we launch a new service or feature, or (2) in urgent situations, such as preventing ongoing abuse or responding to legal requirements. All changes are effective immediately when we post them and apply to all access to and use of the Website thereafter. Your continued use of the Website following the posting of revised Terms of Use means that you accept and agree to the changes. You are expected to check this page from time to time so you are aware of any changes, as they are binding on you.
    7. Reservation of Rights. We retain all right, title, and interest in and to the Service and Documentation and all related intellectual property rights, including any modifications, updates, customizations, apps, or other add-ons. Your rights to use the Service and Documentation are limited to those expressly set forth in this Agreement. We reserve all other rights in and to the Service and Documentation.
    8. No Reliance. All data, reports, and outputs are provided “AS IS” without warranties of accuracy, completeness, or fitness for any particular purpose. You acknowledge that any outputs, data, or reports provided by the Service are for informational purposes only and you are solely responsible for verifying their accuracy and suitability for your intended use.
  2. Restrictions on Use of this Site/Service
    1. You shall ensure that the Service is used in accordance with the Documentation. Except as otherwise explicitly provided in this Agreement, you will not, and will not permit or authorize your Affiliates or third parties to:
      1. rent, lease, or, except as explicitly set forth in this Agreement, otherwise permit third parties to use the Service or Documentation;
      2. use the Service to provide services to third parties as a service bureau or in any way that violates applicable law;
      3. circumvent or disable any security or other technological features or measures of the Service, or attempt to probe, scan or test the vulnerability of a network or system, or to breach security or authentication measures;
      4. upload or provide for processing any information or material that is illegal, defamatory, offensive, abusive, obscene, or that violates privacy or intellectual property rights of any third party;
      5. send, store, or distribute any viruses, worms, Trojan horses, or other disabling code or malware component harmful to a network or system;
      6. reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code, structure, or underlying ideas of the Service, except to the limited extent allowed by applicable law.
      7. Use the Service in any high-risk environment where failure could lead to death, personal injury, or severe physical or environmental damage;
      8. use the Service for cryptocurrency mining, blockchain validation, or any computationally intensive processes not directly related to the intended functionality of the Service;
      9. use the Service or any data obtained therefrom to train, develop, or improve artificial intelligence, machine learning models, or competing products or services without our prior written consent; or
      10. engage in any activity that interferes with or disrupts the Service or servers or networks connected to the Service.
    2. You will neither alter nor remove any trademark, copyright notice, or other proprietary rights notice that may appear in any part of the Documentation and will include all such notices on any copies.
    3. You will ensure that your Affiliates and Authorized Users comply with this Agreement. You will be directly and fully responsible to us for their conduct and any breach of this Agreement by them.
    4. You will ensure that any new pole collected will be added in a new pole record and not by recycling a current pole record created for another pole.
    5. We reserve the right to deactivate, change, or require you to change your user ID for any reason or for no reason.
    6. We may exercise such right at any time, with or without prior notice.
  3. Support Services
    1. Support Services. We will provide you with the applicable Support Services for the type or version of the Service to which you are subscribed so long as you are current in payment of the Subscription Fees (if applicable). We have no obligation to provide Support Services for Free Versions, Beta Versions, or Free Trials. Support is provided “AS AVAILABLE” and may be modified or discontinued at any time.
    2. Service Availability. We provide the service levels and service credits, if any, as set forth in a Service Order on a product by product basis. We perform and maintain regular database backups according to the retention policy appropriate for the particular system. We incorporate database and system maintenance operations and processes designed to address data consistency, indexing, and integrity requirements that also help improve query performance. We have implemented and will maintain commercially reasonable measures intended to avoid unplanned Service interruptions. We will use commercially reasonable efforts to notify you in advance of planned Service interruptions. In the event of an unplanned Service interruption, you may contact us for Support Service, as described in this Agreement. The Service depends on the availability of the Subscriber Data from you and third-party data providers. You are responsible for making the Subscriber Data available that is necessary for us to provide the Service.
    3. Service Suspension Rights. We reserve the right to temporarily suspend, interrupt, or restrict access to all or any part of the Service at any time and for any reason at our sole discretion, including but not limited to: (i) scheduled or emergency maintenance; (ii) system upgrades, updates, or modifications; (iii) security threats, vulnerabilities, or breaches; (iv) suspected unauthorized access or misuse; (v) compliance with legal requirements or court orders; (vi) prevention of harm to our systems, other users, or third parties; or (vii) any other operational, technical, or business reasons we deem necessary. WE WILL USE COMMERCIALLY REASONABLE EFFORTS TO PROVIDE ADVANCE NOTICE OF PLANNED MAINTENANCE WHEN FEASIBLE, BUT EMERGENCY OR SECURITY-RELATED SUSPENSIONS MAY OCCUR WITHOUT PRIOR NOTICE. WE SHALL HAVE NO LIABILITY FOR ANY INTERRUPTION OF SERVICE, LOSS OF DATA, OR OTHER DAMAGES ARISING FROM ANY SUSPENSION, WHETHER PLANNED OR UNPLANNED. SERVICE CREDITS OR REFUNDS ARE NOT PROVIDED FOR SUSPENDED SERVICE TIME.
    4. Your Responsibilities. You will provide assistance, cooperation, information, equipment, data, a suitable work environment, and resources reasonably necessary to enable us to perform the Support Services. You acknowledge that our ability to provide Support Services may be affected if you do not meet your responsibilities as set forth above.
  4. Third-Party Products
    1. Third-Party Products. Any third-party product or services that interoperates with the Services (e.g., a Third Party App) is provided pursuant to the terms of the applicable third-party agreement. We assume no responsibility for, and specifically disclaim any liability or obligation with respect to, any third-party product or service.
    2. Third Party Apps. WE ARE NOT RESPONSIBLE FOR ANY THIRD-PARTY PRODUCTS OR CONTENT. We do not warrant or support Third Party Apps, regardless of whether the Third Party App is listed by us. If you install or enable a Third Party App for use with the Service, you grant us permission to allow the provider of that Third Party App to access Subscriber Data as required for the interoperation of that Third Party App with the Service. We are not responsible for any disclosure, modification, or deletion of Subscriber Data by the applicable provider resulting from access by a Third Party App. If we believe a Third Party App violates our policies, this Agreement, applicable law, or the rights of any third party, we may disable the Third Party App and suspend use of the Third Party App until the potential violation is resolved.
    3. Third Party Content. We may provide, or third parties may provide, links to other third-party websites, services, or resources that are beyond our control. We make no representations as to the quality, suitability, functionality, or legality of any third-party content to which links may be provided, and you hereby waive any claim you might have against us with respect to such services. D8AVERSE IS NOT RESPONSIBLE FOR THE CONTENT ON THE INTERNET OR WEB PAGES THAT ARE LOCATED OUTSIDE THE SITE OR POSTS OF USER CONTENT, EXCEPT TO THE EXTENT SUCH RESPONSIBILITY CANNOT BE LAWFULLY EXCLUDED UNDER APPLICABLE LAW. Your correspondence or business dealings with, or participation in promotions of, advertisers or partners found on or through the Site, including payment and delivery of related goods or services, and any other terms, conditions, warranties, or representations associated with such dealings, are solely between you and such advertiser or partner. You agree that we are not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers or links to third-party websites or resources on the Site.
  5. Payment and Subscription Terms
    1. Purchase by the Credits. In order to use the Services, you must purchase credits with the Services that are then expended upon the creation of a particular entry/ pole record in the use of certain functionality in the Services. We will display the fees or costs associated with the credit(s) at the time of your purchase, including any tier based or other discounts, and you authorize us to charge the payment method you provide us for the credits that you purchase. ALL PAYMENTS ARE NON-REFUNDABLE EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT.
    2. Subscription Fees. In the event you select a Subscription based model for services, the initial subscription term fees set forth in the Service Order are due upon execution of the Service Order. After the initial subscription term, Subscription Fees will be invoiced as set forth in the applicable Service Order and at the then-current rate for the Service. Fees for additional Service quantities, such as users, as may be applicable, will be invoiced at the time of order, unless otherwise agreed in writing by the parties. You will pay all amounts in full within 30 days after the invoice date. The charges in an invoice will be considered accepted by you unless we are notified of a good faith dispute in writing within 15 days of the date of the invoice. ALL PAYMENTS ARE NON-REFUNDABLE EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT.
    3. Service Orders. In the event that credits are purchased through a Service Order rather than directly through our website, all terms and conditions outlined herein are incorporated into each Service Order. D8AVERSE HEREBY GIVES NOTICE THAT IT OBJECTS TO THE INCLUSION OF ANY DIFFERENT OR ADDITIONAL TERMS PROPOSED BY YOU. Any and all additional or different terms and conditions contained in any Service Order, Purchase Order, acceptance, invoices, or other commercial documents are hereby rejected and shall not become part of the Agreement between the parties and any reference to any proposal is solely for the purpose of incorporating the description and Specifications of any Services contained therein to the extent that such description and Specifications do not conflict with the description and specifications on the face of these Standard Terms and Conditions. ALL PAYMENTS ARE NON-REFUNDABLE EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT.
    4. Nature of the Credits. THE CREDITS ARE NOT REFUNDABLE, TRANSFERABLE OR REDEEMABLE FOR CASH OR OTHER REMUNERATION. THE CREDITS ARE PERSONAL TO YOU AND MAY ONLY BE USED BY YOU TO GAIN ACCESS TO THE USE OF THE SERVICES. ANY CREDITS THAT ARE UNUSED 365 DAYS AFTER PURCHASE AUTOMATICALLY EXPIRE WITHOUT NOTICE TO YOU.
    5. Automatic Renewal. YOU ACKNOWLEDGE THAT THE SERVICES BY DEFAULT INCLUDE AUTOMATIC PURCHASES OF CREDITS THAT WILL CONTINUALLY REFILL YOUR CREDITS AT THE SAME LEVEL OR NUMBER AS YOUR MOST RECENT PREVIOUS PURCHASE.
    6. Cancellation of Automatic Purchase: When purchasing by the credit, you shall have the ability to adjust or turn off the automatic purchase renewal through the settings menu in the Services. For Subscription agreements, those terms will be spelled out in the Subscription agreement entered into by both parties and the terms in that Subscription Agreement shall apply.
    7. Late Payment. Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded monthly from the date due until the date paid. You will reimburse any costs or expenses (including attorneys’ fees) incurred by us to collect any amount that is not paid when due. Amounts due from you under this Agreement may not be withheld or offset by you against amounts due to you for any reason.
    8. Taxes. The fees stated in a Service Order, Subscription Agreement, or per Credit fees do not include local, state, federal, or foreign taxes (e.g., value-added, goods, sales, services, or use taxes), or fees, duties, or other governmental charges resulting from this Agreement (“Taxes”). You are responsible for paying all applicable Taxes. If we determine that we have the legal obligation to pay or collect Taxes, we will add such Taxes to the applicable invoice and you will pay such Taxes, unless you provide us with a valid tax exemption certificate from the appropriate taxing authority. If a taxing authority subsequently pursues us for unpaid Taxes for which you are responsible under this Agreement and which you did not pay to us, we may invoice you and you will pay such Taxes to us or directly to the taxing authority, plus all applicable interest, penalties and fees. Taxes may be applied without notice. You acknowledge and confirm that the address you provide in your Account registration is the place of supply to you for Tax purposes. If requested by us, you agree to provide to us your VAT, GST, or similar tax identification number(s) to avoid application of taxes, as applicable, and you will use the ordered Site in the location(s) in accordance with the provided VAT or GST identification number(s). The parties’ obligations under this Section (Tax Responsibility) will survive the termination or expiration of these Terms.
    9. Currency. Unless expressly provided otherwise in a Service Order, all amounts payable under this Agreement are denominated in United States dollars, and you will pay all such amounts in United States dollars.
    10. Future Functionality. Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by us regarding future functionality or features.
  6. Term and Terminations
    1. Term. This Agreement commences on the effective date specified in the Service Order or Subscription Agreement and continues for the initial subscription term specified in the Service Order, unless this Agreement is terminated earlier in accordance with the terms of this Agreement. UNLESS OTHERWISE EXPRESSLY STATED IN THE SERVICE ORDER OR SUBSCRIPTION AGREEMENT, THIS AGREEMENT AUTOMATICALLY RENEWS FOR ADDITIONAL SUCCESSIVE TERMS OF EQUAL DURATION TO THE IMMEDIATELY PRECEDING TERM UNLESS AT LEAST 30 DAYS BEFORE THE END OF THE THEN-CURRENT TERM EITHER PARTY PROVIDES WRITTEN NOTICE TO THE OTHER PARTY THAT IT DOES NOT INTEND TO RENEW. If you are purchasing by the credits rather than through a Service Order or Subscription Fees, this Agreement shall remain in effect for so long as your account shows active credits.
    2. Termination. Either party may terminate this Agreement if the other party does not cure its material breach of this Agreement within 30 days of receiving written notice of the material breach from the non-breaching party. A breach of this Agreement by your Affiliate, or an Authorized User will be treated as a breach by you. Termination in accordance with this subsection will take effect when the breaching party receives written notice of termination from the non-breaching party, which notice must not be delivered until the breaching party has failed to cure its material breach during the 30-day cure period. If you fail to timely pay any Subscription Fees, we may, without limitation to any of our other rights or remedies, suspend performance of the Service and Support Services until we receive all amounts due, or may terminate this Agreement pursuant to this Subsection. In the event you materially breach this agreement and fail to cure it as stated herein, we shall be entitled to terminate your account and cancel all credits without recourse or payment owed.
    3. Suspensions. If you become aware, or if we have reason to believe, that any Authorized User, Third Party App or Subscriber Data constitutes a security threat or violates this Agreement or any applicable laws, you will immediately suspend the Authorized User’s access, use of the Third-Party App and/or remove the relevant Subscriber Data (as applicable). If you fail to immediately suspend or remove such user, app or data, we may specifically request that you do so or we may disable the Third Party App, remove the applicable Subscriber Data, suspend the Services and/or disable your account (as may be applicable or appropriate in our reasonable discretion) until such security threat or violation is resolved. Suspension will be to the minimum extent required to resolve the issue, and if we suspend a Third Party App or your account, for any reason, without prior notice to you, we will provide you the reason for the suspension as soon as is reasonably possible.
    4. Post-Termination Obligations. If this Agreement is terminated for any reason: (a) we have no obligation to provide or perform any Service or Support Services after the effective date of the termination; (b) you will immediately pay to us any Subscription Fees and other amounts that have accrued prior to the effective date of the termination; (c) any and all liabilities accrued prior to the effective date of the termination will survive; (d) you will provide us with a written certification signed by your authorized representative certifying that all use of the Service and Documentation has been discontinued; and (e) rights, duties, and obligations under this Agreement, which by their nature would continue beyond the termination, cancellation or expiration of this Agreement, shall survive termination, cancellation or expiration of this Agreement. If this Agreement is terminated by us for your uncured material breach or by you other than as a result of a material, uncured breach by us, you will pay to us the amounts due under the applicable Service Order for the remainder of the then-current term.
    5. Post Termination Data Handling. Upon termination or expiration, we may retain Subscriber Data for up to 30 days to allow you to export it, after which we may delete it without notice or liability. WE ARE NOT RESPONSIBLE FOR ANY LOSS OR DELETION OF SUBSCRIBER DATA AFTER THE RETENTION PERIOD.
  7. Free Trials, Special Offers and Beta Versions
    1. Free Trials. If you receive access to the Services or Services features on a free or trial basis or as an early access offering (“Free Trials”), use is permitted only for your internal evaluation until the earlier of (a) the end of the free trial period; (b) the start date of any purchased credits or subscriptions ordered by you for such Service(s); or (c) termination by us in our sole discretion. Free Trials may be inoperable, incomplete or include features that we may never release. Notwithstanding anything to the contrary in this Agreement, you understand and agree that Free Trials are made available on an “AS IS,” and “AS AVAILABLE” basis and without any warranty, indemnity, support, accuracy, commitment to availability, security or other related obligation of any kind under this Agreement unless otherwise required by applicable law. OUR LIABILITY FOR A FREE TRIAL WILL NOT EXCEED US $50.
    2. Beta Versions. From time to time, we may make available for you to try, at your sole discretion, certain functionality related to the Service, which is clearly designated as beta, pilot, limited release, non-production, or by a similar description (each, a “Beta Version”). Beta Versions are intended for evaluation purposes and not for production use, are not supported, and may be subject to additional terms. We may discontinue Beta Versions at any time in our sole discretion and may never make them generally available. WE HAVE NO LIABILITY FOR ANY HARM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH A BETA VERSION.
    3. Termination of Free Trials, Offers, and Beta Versions. To the fullest extent permitted under applicable laws, we reserve the right to reduce the term of a trial period, Beta Version, or Special Offers, or end the same altogether without prior notice.
  8. Confidential Information
    1. Definition. “Confidential Information” means non-public business information, know-how, and trade secrets in any form, including information regarding our product plans, Beta Versions, terms of this Agreement, and any other information a reasonable person should understand to be confidential, which is disclosed by or on behalf of either party or its Affiliates to the other party or its Affiliates, directly or indirectly, in writing, orally, or by inspection of tangible objects, and whether such information is disclosed before or after the effective date specified on the Service Order. Confidential Information includes this Agreement and its terms. “Confidential Information” excludes information that (a) is publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party through no action or inaction of the receiving party; (b) is already in the possession of the receiving party at the time of disclosure by the disclosing party, as shown by the receiving party’s files and records; (c) is obtained by the receiving party from a third party without a breach of the third party’s obligations of confidentiality; or (d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information, as shown by documents and other competent evidence in the receiving party’s possession.
    2. Maintenance of Confidentiality. The party receiving Confidential Information hereunder agrees to take reasonable steps, at least substantially equivalent to the steps it takes to protect its own proprietary information, but not less than reasonable care, to prevent the unauthorized duplication or disclosure of the Confidential Information to third parties without the disclosing party’s prior written consent. The receiving party may disclose the disclosing party’s Confidential Information to the receiving party’s employees, contractors or agents who reasonably need to have access to such information to perform the receiving party’s obligations under this Agreement, and who will treat such Confidential Information under the terms of this Agreement. We may disclose this Agreement to our auditors, attorneys, other advisors, actual and potential investors and funding sources and their representatives, in each case who agree to hold it in confidence. The receiving party may disclose the disclosing party’s Confidential Information if required by law so long as the receiving party gives the disclosing party written notice of the requirement prior to the disclosure (where permitted) and reasonable assistance, at the disclosing party’s expense, in limiting disclosure or obtaining an order protecting the information from public disclosure.
    3. Return of Materials and Effect of Termination. Upon written request of the disclosing party, or in any event upon any termination or expiration of this Agreement, the receiving party will return to the disclosing party or destroy all materials, in any medium, to the extent containing or reflecting any of the disclosing party’s Confidential Information. Following expiration or termination of this Agreement, we may purge your Subscriber Data and your Service environment from our systems. The obligations in this Section survive for three years following expiration or termination of this Agreement, except that Confidential Information that constitutes a trade secret of the disclosing party will continue to be subject to the terms of this Section for as long as such information remains a trade secret under applicable law. Not withstanding the foregoing, we shall be entitled to retain one copy for legal archival and retention purposes.
    4. Feedback and Other Content. The Service may permit you, your Affiliates, and Authorized Users to submit feedback, user community contributions and comments, technical support information, suggestions, enhancement requests, recommendations, and messages relating to the use and operation of the Service. YOU GRANT TO US A ROYALTY-FREE, FULLY PAID, NON-EXCLUSIVE, PERPETUAL, IRREVOCABLE, WORLDWIDE, TRANSFERABLE LICENSE TO DISPLAY, USE, COPY, MODIFY, PUBLISH, PERFORM, TRANSLATE, CREATE DERIVATIVE WORKS FROM, SUBLICENSE, DISTRIBUTE, AND OTHERWISE EXPLOIT SUCH CONTENT WITHOUT RESTRICTION.
    5. Ownership. Notwithstanding any other provision of these Terms, you acknowledge that, as between you and us, all our Confidential Information you receive from us, including all copies thereof in your possession or control, in any media, is proprietary to and exclusively owned by us. Nothing in these Terms grants you any right, title or interest in or to any of our Confidential Information, except as provided in these Terms. Any incorporation of our Confidential Information into any of your own materials will not render our Confidential Information non-confidential.
    6. Remedies. The receiving party acknowledges that any unauthorized use or disclosure of Confidential Information may cause irreparable harm, and the disclosing party shall be entitled to seek injunctive relief without posting a bond, in addition to other remedies.
  9. Data
    1. Data Security. We implement and maintain physical, electronic, and managerial procedures intended to protect against the loss, misuse, unauthorized access, alteration, or disclosure of Subscriber Data. These measures include encryption of Subscriber Data during transmission to the Service, and encryption of backups of Subscriber Data and authentication credentials at rest. We will notify you of any unauthorized access to, or use of, Subscriber Data that comes to our attention. If any unauthorized disclosure of Subscriber Data resulting from your use of the Service comes to our attention, we will work with you to investigate the cause of such unauthorized disclosure, and will work together in good faith to take the steps reasonably necessary to prevent any future reoccurrence and to comply with applicable data breach notification laws.
    2. Regulated Data. YOU ACKNOWLEDGE THAT WE MAY NOT BE ABLE TO INDEPENDENTLY DETERMINE, AND WE DO NOT MONITOR, WHETHER ANY SUBSCRIBER DATA CONSTITUTES REGULATED DATA. UNLESS WE SPECIFICALLY AGREE OTHERWISE IN WRITING BY ENTERING INTO A SEPARATE, APPROPRIATE AGREEMENT WITH YOU, YOU REPRESENT AND WARRANT THAT NEITHER YOU NOR ANY AUTHORIZED USER WILL, EITHER DIRECTLY OR THROUGH ANY INTEGRATION WITH A THIRD PARTY APP, UPLOAD INTO THE SERVICE, OR OTHERWISE PROVIDE FOR PROCESSING BY THE SERVICE, ANY REGULATED DATA. You further represent and warrant that you and any Authorized User will comply with all applicable laws, regulations, self-regulatory guidelines, the terms and conditions of this Agreement, and your privacy policy (should you have one) with respect to the collection, transfer, and use of any Personally Identifiable Information PII in connection with the Service, including proper disclosure and receipt of all required consents from each individual to transfer such PII to us.
    3. Data Transmission. You acknowledge that use of the Service involves transmission of Subscriber Data and other communications over the Internet and other networks, and that such transmissions could potentially be accessed by unauthorized parties. You must protect your Authorized User login names and passwords from access or use by unauthorized parties, and are solely responsible for any failure to do so. You must promptly notify us of any suspected security breach legal@d8averse.com.
    4. Subscriber Data. Subscriber Data is your property. SUBJECT TO APPLICABLE PRIVACY LAWS, YOU ACKNOWLEDGE THAT YOU GRANT US AND OUR AFFILIATES A NON-EXCLUSIVE, PERPETUAL, WORLDWIDE, IRREVOCABLE, ROYALTY-FREE LICENSE TO USE, COPY, TRANSMIT, SUB-LICENSE, INDEX, STORE, AGGREGATE, AND DISPLAY SUBSCRIBER DATA AS REQUIRED TO PROVIDE OR PERFORM THE SERVICE, SUPPORT SERVICES, AND ACCOUNT MANAGEMENT SERVICES, AND TO REPRODUCE, PUBLISH, DISPLAY, AND DISTRIBUTE DE-IDENTIFIED, AGGREGATED INFORMATION DERIVED FROM SUBSCRIBER DATA OR FROM YOUR USE OF THE SERVICE FOR ANY LAWFUL PURPOSE, INCLUDING IMPROVING OUR PRODUCTS AND SERVICES, DEVELOPING NEW PRODUCTS OR SERVICES, LICENSING OR SELLING SUCH AGGREGATED DATA TO THIRD PARTIES, AND DEVELOPING, DISPLAYING, AND DISTRIBUTING BENCHMARKS AND SIMILAR REPORTS, PROVIDED THAT ANY SUCH DATA IS NOT PUBLICLY IDENTIFIED OR IDENTIFIABLE AS ORIGINATING WITH OR ASSOCIATED WITH YOU OR ANY INDIVIDUAL PERSON.
  10. Intellectual Property
    1. Service IP. We retain all right, title, and interest in and to the Service, Documentation, and all related Intellectual Property Rights, including but not limited to all software, technology, processes, algorithms, user interfaces, know-how, techniques, designs, and other tangible or intangible technical material or information made available to you by us as well as modifications, improvements, or derivative works thereto. You own all right, title, and interest in and to the Subscriber Data, subject to the licenses granted to us in this Agreement.
    2. No Implied Rights. Except for the limited rights expressly granted hereunder, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to you or any third party any intellectual property rights or other right, title, or interest in or to our intellectual property.
    3. Feedback License. If you provide any suggestions, enhancement requests, feedback, recommendations, or other input regarding the Service (“Feedback”), you hereby grant to us a royalty-free, fully paid, non-exclusive, perpetual, irrevocable, worldwide, transferable, sublicensable license to use, copy, modify, create derivative works based upon, distribute, publicly display, and publicly perform the Feedback in any manner and for any purpose.
    4. DMCA Compliance. We respect the intellectual property rights of others and expect users to do the same. We will respond to clear notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act. If you believe your copyright has been infringed, please notify us at legal@d8averse.com with the required DMCA information.
    5. Trademark Rights. The D8ACAPTURE and D8AVERSE names, logos, and all related product and service names, design marks, and slogans are our trademarks or those of our affiliates or licensors. You must not use such marks without our prior written permission.
    6. No User Claims to Our IP. You agree not to challenge, contest, or assert any rights in or to our Intellectual Property Rights, including the Service, Documentation, or any related trademarks or trade secrets.
  11. Warranties and Disclaimers
    1. Mutual Warranties. Each party represents and warrants to the other that: (a) this Agreement constitutes a valid and binding agreement enforceable against such party in accordance with its terms; and (b) no authorization or approval from any third party is required in connection with such party’s execution and delivery of the Service Order, or performance of this Agreement.
    2. Our Warranties. We warrant that the Service as delivered to you will materially conform to the specifications set forth in the applicable Service Order, during the term of the Service Order. You must notify us of a claim under this warranty within 30 days of the date on which the condition giving rise to the claim first appears. To the extent permitted by law, your sole and exclusive remedy arising out of or in connection with a breach of warranty is limited to correction of the non-conforming Service, or if correction or re-performance is not commercially reasonable, termination of the applicable Service Order and a pre-rated refund of any prepaid unused fees for the applicable Service.
    3. Your Warranties. You represent and warrant that: (a) you will comply with all laws and regulations, including those applicable to your provision of data, Third Party Apps and your use of the Services, as applicable; (b) Subscriber Data and Third Party Apps, or either of them, do not violate or infringe any privacy rights or intellectual property rights of any third party; and (c) that nothing you or any of your Authorized Users upload to the Services will include, transmit or introduce any viruses, trojan horses, worms, spyware or other destructive or malicious code.
    4. Internet and Technology Disclaimers. YOU ACKNOWLEDGE THAT THE SERVICE DEPENDS ON INTERNET CONNECTIVITY, THIRD-PARTY SERVICES, AND COMPLEX SOFTWARE AND HARDWARE SYSTEMS. WE DISCLAIM ANY WARRANTIES REGARDING THE RELIABILITY, AVAILABILITY, OR PERFORMANCE OF INTERNET CONNECTIONS, THIRD-PARTY SERVICES, OR ANY SYSTEMS NOT UNDER OUR DIRECT CONTROL.
    5. Disclaimers. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION, WE MAKE NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. WE EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. WE DO NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE SERVICE OR DOCUMENTATION. WE DO NOT WARRANT THAT THE SERVICE OR DOCUMENTATION IS ERROR-FREE OR THAT OPERATION OR USE OF THE SERVICE OR DOCUMENTATION WILL BE SECURE OR UNINTERRUPTED. WE EXERCISE NO CONTROL OVER AND EXPRESSLY DISCLAIM ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF USE OF THE SERVICE OR DOCUMENTATION. BECAUSE SOME STATES AND JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IN THAT EVENT, SUCH WARRANTIES ARE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY AND FOR THE MINIMUM WARRANTY PERIOD ALLOWED BY THE MANDATORY APPLICABLE LAW.
  12. Indemnification
    1. Our Indemnification. We will defend you from any third-party claim alleging that the Service infringes any U.S. patent, copyright, or trademark, and indemnify you for damages finally awarded, provided you notify us promptly, give us control of the defense, and cooperate. This does not apply to claims based on your modifications, combinations, or misuse. Our liability related to Indemnification is capped per Section 14.
    2. Your Indemnification. You will indemnify us from and pay: (a) all damages, costs, and attorneys’ fees finally awarded against us in any Claim under this Section; (b) all out-of-pocket costs, including reasonable attorneys’ fees reasonably incurred by us in connection with the defense of a Claim under this Section; and (c) all amounts that you agree to pay to any third party to settle any Claim under this Section.
    3. Bodily Injury and Property Damage Indemnification. TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU SHALL DEFEND, INDEMNIFY, AND HOLD HARMLESS US, OUR AFFILIATES, AND OUR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONTRACTORS, AND REPRESENTATIVES (COLLECTIVELY, “INDEMNIFIED PARTIES”) FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, ACTIONS, SUITS, PROCEEDINGS, LOSSES, DAMAGES, COSTS, EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES), JUDGMENTS, AND SETTLEMENTS ARISING OUT OF OR RELATING TO: (I) ANY BODILY INJURY, PERSONAL INJURY, DEATH, OR PROPERTY DAMAGE TO YOU, YOUR EMPLOYEES, CONTRACTORS, SUBCONTRACTORS, AFFILIATES, AUTHORIZED USERS, OR ANY THIRD PARTIES; (II) ANY WORKPLACE ACCIDENTS, SAFETY INCIDENTS, OR OCCUPATIONAL HAZARDS; (III) ANY ACTIVITIES PERFORMED BY YOU OR ON YOUR BEHALF IN CONNECTION WITH DATA COLLECTION, FIELD OPERATIONS, OR USE OF THE SERVICE; (IV) ANY NEGLIGENT, RECKLESS, OR INTENTIONAL ACTS OR OMISSIONS BY YOU, YOUR EMPLOYEES, CONTRACTORS, SUBCONTRACTORS, AFFILIATES, OR AUTHORIZED USERS; AND (V) ANY VIOLATION OF SAFETY REGULATIONS, BUILDING CODES, OR OCCUPATIONAL SAFETY REQUIREMENTS, WHETHER OR NOT SUCH CLAIMS ARISE FROM OR ARE ALLEGEDLY CAUSED BY THE SERVICE, WEBSITE, MOBILE APPLICATION, OR ANY TECHNOLOGY PROVIDED BY US. THIS INDEMNIFICATION OBLIGATION SHALL APPLY REGARDLESS OF WHETHER SUCH INJURY, DAMAGE, OR DEATH OCCURS ON YOUR PREMISES, CLIENT PREMISES, OR IN THE FIELD, AND SHALL SURVIVE TERMINATION OF THIS AGREEMENT.
    4. Defense. You will at your sole expense defend us and our Affiliates from any actual or threatened third-party Claim arising out of, related to or based upon (a) use of the Service by you, your Affiliates, or Authorized Users that is not in accordance with the terms of this Agreement or the Documentation; (b) any dispute between you and the provider of a Third Party App; (c) the Subscriber Data or other materials or information provided by you or on your behalf under this Agreement; (d) Excluded Claims; and (e) any allegations or Claims arising from legally required accessibility requirements with respect to websites and related online services, except where you have purchased additional professional services from us to render the Services in compliance with same. We may participate in the defense of any Claim at our own expense and with counsel of our own choosing. You will not agree to settle or compromise any Claim without our prior written consent in each instance.
    5. Right to Settle. We retain the exclusive right to settle, compromise, and pay, without your prior consent, any and all claims or causes of action that are brought against us. 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 with our defense of these claims. You agree not to settle any matter in which we are named as a defendant and/or for which you have indemnity obligations without our prior written consent. We will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.
    6. Remedies for Infringement Claims. If the Service becomes, or in our opinion is likely to become, the subject of an infringement claim, we may, at our option and expense: (i) procure for you the right to continue using the Service; (ii) replace or modify the Service to make it non-infringing; or (iii) terminate your rights to use the Service and refund any prepaid, unused fees for the affected Service.
    7. Exclusive Remedy. This “Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any third-party claim described in this section.
  13. Waivers and Limitations of Liability
    1. Disclaimer of Indirect Damages. TO THE EXTENT PERMITTED BY LAW, NEITHER PARTY WILL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, OR FOR LOST PROFITS OR LOSS OF BUSINESS ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF THE PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING OR SUCH DAMAGES WERE FORESEEABLE.
    2. Cap on Liability. TO THE EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES WILL OUR TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNTS PAID BY YOU UNDER THIS AGREEMENT DURING THE 6 MONTHS IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM.
    3. Data Loss Limitation. TO THE EXTENT PERMITTED BY LAW, WE SHALL HAVE NO LIABILITY FOR ANY LOSS, CORRUPTION, OR UNAUTHORIZED ACCESS TO SUBSCRIBER DATA, PROVIDED THAT WE HAVE IMPLEMENTED REASONABLE SECURITY MEASURES AS DESCRIBED IN THIS AGREEMENT.
    4. Waiver of Subrogation and Insurance. YOU WAIVE ALL RIGHTS OF SUBROGATION AGAINST US, OUR AFFILIATES, AND OUR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONTRACTORS, AND REPRESENTATIVES (COLLECTIVELY, “RELEASED PARTIES”) THAT YOU OR YOUR INSURERS MAY HAVE ARISING FROM ANY LOSS, DAMAGE, OR INJURY RELATED TO THIS AGREEMENT OR YOUR USE OF THE SERVICE. YOU SHALL OBTAIN APPROPRIATE INSURANCE COVERAGE FOR YOUR OPERATIONS AND SHALL CAUSE ALL SUCH INSURANCE POLICIES TO INCLUDE WAIVERS OF SUBROGATION IN FAVOR OF THE RELEASED PARTIES. IF YOU FAIL TO OBTAIN SUCH WAIVER FROM YOUR INSURERS, YOU AGREE TO BE SOLELY LIABLE FOR ANY SUBROGATION CLAIMS THAT MAY BE ASSERTED BY YOUR INSURERS AGAINST THE RELEASED PARTIES.
    5. Independent Allocations of Risk. Each provision of this Agreement that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages is to allocate the risks of this Agreement between the parties. This allocation is reflected in the pricing offered by us to you and is an essential element of the basis of the bargain between the parties. Each of these provisions is severable and independent of all other provisions of this Agreement. The limitations in this section will apply notwithstanding the failure of essential purpose of any limited remedy in this Agreement.
  14. Dispute Resolution
    1. Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Florida, U.S.A., without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods.
    2. Mandatory Arbitration. Any legal actions arising under the Agreement must be initiated within one year after the cause of action arises. Prior to filing any legal claim, the initiating Party must contact the other Party and attempt in good faith to resolve the dispute informally. EXCEPT WHERE PROHIBITED BY LAW, THE PARTIES AGREE TO RESOLVE DISPUTES THROUGH FINAL AND BINDING ARBITRATION IN ACCORDANCE WITH THE COMMERCIAL ARBITRATION RULES (THE “RULES”) OF THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) BY ONE ARBITRATOR APPOINTED IN ACCORDANCE WITH SUCH RULES. The arbitration shall take place in the State of Florida, in the English language and the arbitral decision may be enforced in any court. The prevailing party in any arbitration action or proceeding shall be entitled to costs and attorneys’ fees.
    3. Opt Out for Arbitration. CUSTOMER MAY OPT-OUT OF THE BINDING ARBITRATION REQUIREMENT BY PROVIDING NOTICE TO US BY EMAIL AT LEGAL@D8AVERSE.COM WITHIN THIRTY (30) DAYS FROM THE DATE THAT YOU FIRST BECAME SUBJECT TO THIS ARBITRATION PROVISION.
    4. Other Legal Rights. Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring enforcement actions, validity determinations, or claims arising from or relating to theft, piracy, or unauthorized use of intellectual property in any state, or federal court with lawful jurisdiction for such claims. This section does not prohibit either party from applying to a court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other equitable relief to preserve the status quo or prevent irreparable harm, or to any action by us to collect amounts not paid to us when due. Judgment upon the award rendered by an arbitrator may be entered in any court of competent jurisdiction. The prevailing party will be entitled to receive from the other party its attorneys’ fees and costs incurred in connection with any arbitration or litigation instituted in connection with this Agreement. The parties will maintain the confidential nature of the arbitration proceeding except as may be necessary to prepare for or conduct the arbitration hearing on the merits.
    5. Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL BY JURY. The parties understand that, absent this mandatory arbitration section, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
    6. Waiver of Class Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS AGREEMENT MUST BE BROUGHT ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER, OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable, or that an arbitration can proceed on a class basis, then the arbitration provisions set forth herein shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
  15. Force Majeure
    1. Other than payment obligations, neither party will be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond its reasonable control, including an act of nature, war, fires, natural disaster, governmental actions or regulations, pandemics, epidemics, governmental shutdowns, terrorism, cyber-attacks, communication or utility failures or casualties or the failures or acts of third parties. The affected party shall use commercially reasonable efforts to avoid or remove the causes of non-performance.
  16. Notices
    1. Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by certified or registered mail, overnight courier with return receipt requested, or email (with confirmation of receipt) to the appropriate party at the address or email address set forth in the Service Order or to legal@d8averse.com for notices to us. Either party may change its address or email for receipt of notice by notifying the other party in accordance with this Subsection. Notices are deemed given five (5) business days following the date of mailing, upon delivery to a courier, or upon confirmation of email receipt.
  17. Severability
    1. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the use of the Service under this Agreement is found to be illegal, unenforceable, or invalid, your right to use the Service will immediately terminate.
  18. General
    1. Access by Competitors. You may not access the Service if you are our Direct Competitor, except with our prior written consent. In addition, you may not access the Service for purposes of monitoring its availability, performance, or functionality, or for any other benchmarking or competitive purpose.
    2. U.S. Government Use. If the Service is licensed under a United States government contract, you acknowledge that the Service is a “commercial item” as defined in 48 CFR 2.101, consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are defined in FAR Section 2.101 and Section 252.227-7014 of the Defense Federal Acquisition Regulation Supplement (48 CFR 252.227-7014) and used in 48 CFR 12.212 or 48 CFR 227.7202-1, as applicable. You also acknowledge that the Service is “commercial computer software” as defined in 48 CFR 252.227-7014(a)(1). United States government agencies and entities and others acquiring under a United States government contract will have only those rights, and will be subject to all restrictions, set forth in this Agreement.
    3. Export Control Compliance. You acknowledge that the Service may be subject to export control laws and regulations. You will not export, re-export, or transfer the Service to any prohibited country, person, or entity without proper authorization.
    4. Sanctions Compliance. You represent that you are not located in, organized under the laws of, or ordinarily resident in a country or territory subject to comprehensive U.S. sanctions, and you are not a person with whom transactions are prohibited under applicable sanctions laws.
    5. Anti-Corruption. You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If you learn of any violation of the above restriction, you will use reasonable efforts to promptly notify our Legal Department at legal@d8averse.com.
    6. Relationship. At all times, you and we are independent contractors, and are not the agents or representatives of the other. These Terms are not intended to create a joint venture, partnership, or franchise relationship between the parties. Non-parties do not benefit from and cannot enforce these Terms. There are no third-party beneficiaries to these Terms. You must not represent to anyone that you are an agent of ours or are otherwise authorized to bind or commit us in any way without our prior written authorization.
    7. Publicity. You are permitted to state publicly that you are a customer of the Services, consistent with our trademark usage guides and policies that we make available or update from time to time. If you want to display our trademarks, service marks or logos in connection with your use of the Services, you must obtain our written permission. We may include your name or trademarks, service marks or logos in a list of our customers, online or in promotional materials. We may also reference you as a customer of the Services and, subject to your consent, utilize your testimonials and/or trademarks, service marks or logos for advertising, marketing and related purposes. Neither party needs approval if it is repeating a public statement that is substantially similar to a previously-approved public statement. Any use of a party’s trademarks, service marks or logos will inure to the benefit of the party holding intellectual property rights to those trademarks, service marks or logos. Either party may revoke the other’s right to use its trademarks, service marks or logos under this Section with written notice and a reasonable period to stop the use.
    8. Assignment and Delegation. You may not assign any of your rights or delegate any of your obligations under this Agreement (in whole or in part) without our prior written consent, except in connection with a change of control, merger, or by operation of law. Your assignment or delegation will not relieve you of your obligations under this Agreement nor release you of your liability under this Agreement. We may voluntarily, involuntarily, or by operation of law assign any of our rights or delegate any of our obligations under this Agreement without your consent. Any purported assignment or delegation in violation of this Subsection will be null and void. Subject to this Subsection, this Agreement will bind and inure to the benefit of each party’s respective permitted successors and permitted assigns.
    9. Subcontractors. We may use subcontractors or other third parties in carrying out our obligations under this Agreement and any Service Order. We remain responsible for all of our obligations under this Agreement. NO EMPLOYEE, AGENT, OR REPRESENTATIVE OF EITHER PARTY HAS AUTHORITY TO BIND SUCH PARTY TO ANY ORAL MODIFICATION, AND ANY PURPORTED ORAL AGREEMENT SHALL BE UNENFORCEABLE.
    10. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement, intended or unintended, including your Affiliates and Authorized Users.
    11. Waiver. Failure, neglect, or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time, will not be construed as a waiver of the party’s rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice the party’s right to take subsequent action. Exercise or enforcement by either party of any right or remedy under this Agreement will not preclude the enforcement by the party of any other right or remedy under this Agreement or that the party is entitled by law to enforce.
    12. Modifications. We may modify, upgrade or update the Services at any time in our discretion provided that we will not materially reduce or lessen the functionality of the Services during your subscription term set forth in a Service Order unless doing so is required to avoid a violation of applicable laws or regulations in our reasonable discretion. We reserve the right, at our discretion, to change the terms of this Agreement on a going-forward basis at any time. If a change materially modifies your rights or obligations, you will be required to accept the modified Agreement in order to continue to use the Service. Material modifications are effective upon your acceptance of the modified Agreement. Immaterial modifications are effective upon publication. Disputes arising under this Agreement will be resolved in accordance with the version of this Agreement that was in effect at the time the dispute arose.
    13. No Oral Modifications. THIS AGREEMENT MAY NOT BE MODIFIED, AMENDED, ALTERED, OR SUPPLEMENTED EXCEPT BY A WRITTEN INSTRUMENT SIGNED BY BOTH PARTIES. NO ORAL AGREEMENTS, REPRESENTATIONS, WARRANTIES, OR MODIFICATIONS SHALL BE BINDING UPON EITHER PARTY. ANY PURPORTED ORAL MODIFICATION OF THIS AGREEMENT SHALL BE NULL AND VOID AND OF NO FORCE OR EFFECT. ELECTRONIC SIGNATURES AND ELECTRONICALLY TRANSMITTED DOCUMENTS SHALL BE DEEMED EQUIVALENT TO WRITTEN SIGNATURES AND WRITTEN DOCUMENTS FOR PURPOSES OF THIS PROVISION.
    14. Headings. Headings are used in this Agreement for reference only and will not be considered when interpreting this Agreement.
    15. Counterparts. The Service Order may be executed in any number of identical counterparts, notwithstanding that the parties have not signed the same counterpart, with the same effect as if the parties had signed the same document. All counterparts will be construed as and constitute the same agreement. The Service Order may also be executed and delivered by facsimile or electronically and such execution and delivery will have the same force and effect of an original document with original signatures.
    16. Translations. We may provide translations of these Terms or other terms or policies. Translations are provided for informational purposes and if there is an inconsistency or conflict between a translation and the English version, the English version will control, unless prohibited by applicable law.
    17. Interpretation. For purposes of this Agreement, (a) the words “include,” “includes” and “including” will be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole. Should any provision of this Agreement require judicial interpretation, the parties agree that the court interpreting or construing the same may not apply a presumption that the terms of this Agreement will be more strictly construed against one party than against another.
    18. Entire Agreement. This Agreement and all exhibits contain the entire agreement of the parties with respect to the subject matter of this Agreement and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to said subject matter, including any prior nondisclosure agreement between the parties or their Affiliates. If there is a conflict between the terms of this Agreement and a Service Order, the terms of the Service Order will control. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. Neither party will be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by the other party in any acceptance, confirmation, invoice, purchase order, receipt, correspondence, or otherwise, unless each party mutually and expressly agrees to such provision in writing.