Last updated on May 10, 2012

  1. Agreement between You and Fordela.
  2. Please read the following terms of service (the “Terms”) carefully. By clicking the “I Accept” box, you acknowledge that you have read, understood and agree to be bound by these Terms, and the terms and conditions of the SLA and Privacy Policy (each as defined below), when using any digital asset management service or services (collectively, the “Service”) offered by Fordela Corporation, or its parents, affiliates or subsidiaries (collectively, “Fordela”), on or through the site located at www.fordela.com (the “Site”). The term “you” (and “your”) for purposes of these Terms, means both you in your individual capacity, and if applicable, the company or other legal entity whom you represent and on whose behalf you use the Service.
  3. In order to use the Service you must agree to these Terms. However, in addition to clicking the “I Accept” box, you may also agree to the Terms by actually using the Service. You acknowledge and agree that Fordela will treat your use of the Service as acceptance of these Terms from the time you first use the Service.

  4. Fordela Account.
  5. In order to use the Service, you must register with us to open a Fordela user account (“Account”). By opening an Account, you represent and warrant that: (a) all information you submit in connection with your opening and use of your Account is true, accurate, current, and complete; (b) you will promptly notify us if your information changes so that we can update our records; (c) you are aged 13 or older; the Service is not intended for persons under 13; and (d) your use of the Service does not violate any applicable law, rule or regulation. You are responsible for maintaining this information current.
  6. You are solely responsible for maintaining the security and confidentiality of the information you hold for your Account, including, without limitation, your user name and password, and for any and all activity that occurs through your Account as a result of your failure to keep this information secure and confidential. You hereby agree to notify Fordela immediately if you become aware of any unauthorized use of your Account, user name or password, or any other breach of security in connection therewith. You may be held liable for losses incurred by Fordela or any third party due to someone else using your Account, user name or password as a result of your failing to keep your Account information secure and confidential. You are strictly prohibited from using anyone else's Account, user name or password at any time and for any reason. Fordela is not liable to you or any third party for your failure to comply with your obligations under this paragraph.

  7. Your Privacy.
  8. In order to use the Service you will be required to provide certain personally identifiable information to Fordela (e.g., your first and last name, the name of the company or legal entity on whose behalf you use the Service, your telephone number, your e-mail address, and your credit card information). Fordela will only use such personally identifiable information in accordance with the terms of our privacy policy (the “Privacy Policy”). In this regard, you agree to the then-current version of the Privacy Policy that you can find and read at [www.fordela.com/privacy]. You hereby agree that we may use your personally identifiable information in accordance with the terms of the Privacy Policy.

  9. Fees.
  10. The fees that you are required to pay to use the Service, and the corresponding Service bandwidth and storage service (the “Quota”) that will be made available to you based on the amount of fees paid, are set forth in the applicable quote provided by Fordela to you. Fees will be billed monthly in advance. The credit card you maintain on file with Fordela in your Account will be automatically charged on the first day of each month for the following month. If you exceed the Quota applicable to the amount of fees you have paid, you will be charged any additional fees for the applicable monthly billing period that reflect your actual Service usage during such monthly billing period. Such additional fees will charged to your credit card retroactively on the last day of the applicable monthly billing period. Fees are solely based on Fordela's measurements of your use of the Service. You are responsible for maintaining up to date credit card information in your Account.
  11. Unless otherwise agreed by Fordela and you, all fees are payable in U.S. Dollars. Late payments of fees may bear interest at the rate of one and one half percent (1.5%) per month (or the highest rate permitted by applicable law, if less). Fees are exclusive of taxes or other charges. You are responsible for paying all taxes and government or other charges, and all reasonable expenses and attorneys’ fees Fordela incurs collecting late fees. Fordela reserves the right to suspend or terminate your use of the Service (and access to your Content (as defined below)) if you fail to pay any fees due in connection with your use of the Service. Any outstanding fees are immediately due and payable upon termination of your use of the Service for any reason.
  12. To the greatest extent permitted by applicable law, and without affecting your credit card issuer’s rights, you hereby waive all claims relating to fees unless you notify Fordela of any dispute or other fee-related claim within thirty (30) calendar days of the fees being charged to your credit card.
  13. To the greatest extent permitted by applicable law, any refunds of fees are at the sole discretion of Fordela, and refunds will only be provided in the form of a credit against future fees for the Service. Nothing in these Terms obligates Fordela to extend credit to any person. You acknowledge and agree that any credit card and related billing and payment information that you provide to Fordela may be shared by Fordela with third party service providers who work on Fordela's behalf, such as payment processors and/or credit agencies, solely for the purposes of checking credit, effecting payment to Fordela and servicing your Account. Fordela may also provide information in response to valid legal processes, such as subpoenas, search warrants and court orders, or to establish or exercise its legal rights or defend against legal claims. Fordela shall not be liable for any use or disclosure of such information by such third parties.
  14. Fordela may change its fees, payment terms and Quota thresholds at its discretion; provided however, that such changes will not take effect for you until your next monthly billing cycle. You will be notified of any such changes (including notices posted on the Site or sent to your registered e-mail address).

  15. Service Availability & Support.
  16. Fordela will make the Service available to you consistent with the manner in which Fordela makes the Service generally available to other users of the Service, including with the same features and functionality, upgrades, new features, and the Service Level Agreement (“SLA”). Fordela may add to, change or remove any part, term of condition of the SLA, or add separate SLA’s for existing or new portions of the Service, at any time without prior notice to you. It is your responsibility to check the SLA periodically for changes. By continuing to use the Service, you are indicating your acceptance of such changes. However, we will provide written notice to you of any significant changes to the SLA (including notices posted on the Site or sent to your registered e-mail address). Fordela does not make any representations or guarantees regarding uptime or availability of the Service unless specifically identified in the SLA.
  17. The Service may be unavailable at certain times as specified in the SLA, including during any unanticipated or unscheduled downtime or unavailability of all or any portion of the Service as a result of system failures or force majeure events described in Section 19.7. Fordela will use commercially reasonable efforts, circumstances permitting, to provide information regarding any such Service interruptions and the restoration of use of, and access to, the Service following any Service interruption, including by information posted on the Site or sent to your registered e-mail address.
  18. Fordela may temporarily suspend your access to any portion or all of the Service and your Content if Fordela reasonably determines that: (a) there is a threat or attack on the Service (including a denial of service attack) or other event that may create a risk to the Service, you or any other Service user; (b) your use of the Service or your Content disrupts or poses a security risk to the Service or any other Service user, may harm Fordela’s systems or any other Service user, or may subject Fordela or any third party to liability; (c) you are using the Service for fraudulent or illegal activities; (d) subject to applicable law, you have ceased to continue your business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding; (e) you are using the Site, Service or other Fordela property in breach of these Terms; (f) you are in default of your payment obligations hereunder; or (g) there is an unusual spike or increase in your use of the Service (collectively, "Service Suspensions"). Fordela will make commercially reasonable efforts, circumstances permitting, to provide written notice of any Service Suspension to you (including notices posted on the Site or sent to your registered e-mail address) and to provide updates regarding resumption of the Service following any Service Suspension. Fordela will have no liability 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 and you will not be entitled to service credits under the SLA for any Service Suspension.
  19. Fordela will provide customer support to you as is generally made available without charge to other users of the Service.

  20. Security.
  21. Fordela will use commercially reasonable efforts to establish and maintain administrative, technical and physical safeguards in connection with Fordela’s internal data center facilities, servers, networking equipment, and host software systems that are within Fordela’s reasonable control, and that are used to provide the Service, that are designed to: (a) protect the security and integrity of the Fordela network; (b) guard against anticipated threats or hazards to the security and integrity of the Fordela network; and (c) protect against the accidental or unauthorized access, use, alteration or disclosure of your Content. The safeguards will be at least equal to the generally accepted security standards within the IT industry.
  22. You are solely responsible for properly configuring and using the Service and taking your own steps to maintain appropriate security, protection and backup of your Content, including using encryption technology to protect your Content from unauthorized access and routinely archiving your Content. Except as set forth in Section 6.1 above, Fordela is not responsible for any unauthorized access to, alteration of, or the deletion, destruction, damage, loss or failure to store any of, your Content or other data that you submit or use in connection with your Account or the Service.

  23. Fordela’s Proprietary Rights.
  24. You hereby acknowledge and agree that Fordela (or its licensors) own all legal right, title and interest in and to the Site and Service, including, without limitation, any intellectual property or other proprietary rights which subsist in the Site and Service (whether such rights are registered or unregistered, and wherever in the world those rights may exist). As between you and Fordela, all materials on the Site, including, but not limited to, graphics, user and visual interfaces, images, software, applications, and text, as well as the design, structure, selection, coordination, expression, "look and feel", and arrangement of the Site and its content (except for your Content), and the domain names, trademarks, service marks, proprietary logos and other distinctive brand features found on the Site, are all owned by Fordela or its licensors.
  25. Nothing in these Terms gives you any right to use any of Fordela’s trade names, trade marks, service marks, logos, domain names, and other distinctive brand features. All rights not expressly granted by Fordela under these Terms are reserved.
  26. Subject to your compliance with these Terms, including, without limitation, your payment of all applicable fees, Fordela hereby grants you a limited, personal, worldwide, royalty-free, non-transferable, non-sublicensable and non-exclusive license to use the Service for your internal business use, to store and manage your Content in such manner as permitted and/or specified by Fordela from time-to-time in any applicable documentation or applicable Service descriptions. This license is for the sole purpose of enabling you to use and enjoy the benefit of the Service as provided by Fordela, in the manner permitted by these Terms.
  27. During, and after the termination of, your use of the Service, you will not assert, nor will you authorize or assist any third party to assert, against Fordela or any of the Fordela Parties (as defined below), any patent infringement claim with respect to the Service.

  28. Service Use Restrictions.
  29. You hereby represent and warrant that you will not, and will not permit any third party to: (a) attempt to disable or circumvent any security mechanisms used by the Site or Service or otherwise attempt to gain unauthorized access to any portion or feature of the Site or Service, or any other systems or networks connected to the Site or Service, or to any Fordela server, by hacking, password "mining", or any other illegal means; (b) use any "deep-link", "page-scrape", "robot", "spider" or other automatic device, program, algorithm or methodology, or any comparable manual process, to access, acquire, copy, or monitor any portion of the Site or Service; (c) use any device, software or routine to interrupt or interfere, or attempt to interrupt or interfere with, the proper operation and working of the Site or Service or any transaction being conducted on the Site or through the Service, or with any other person's use of the Site or Service; (d) breach any security measures implemented on the Site or in the Service; (e) track or seek to trace any information on any other person who visits the Site or uses the Service; (f) forge headers or otherwise manipulate identifiers in order to disguise your identity, or the origin of any message or other communication that you send to Fordela in connection with the Service; (g) pretend that you are, or that you represent, someone else, or impersonate any other person; (h) use the Service in the design, development, production, or use of missiles or the design, development, production, stockpiling, or use of chemical or biological weapons; (i) use the Service or Site for any illegal purpose, for soliciting the performance of any illegal activity, or as otherwise prohibited by these Terms or applicable laws, rules or regulations, including, without limitation, laws applicable to the export of software and data; (j) upload or otherwise process any malicious content to, or through, the Service; or (k) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the any Fordela proprietary software used to provide, maintain, or otherwise applicable to, the Service, or made available to you in connection with the Service.
  30. You hereby agree that you will notify Fordela if you become aware that the Site or Service is being used for any illegal or unauthorized purpose.

  31. Your Content & License from You.
  32. You hereby agree that you are solely responsible and liable for any and all information, data files, written text, computer software, music, audio files or other sounds, photographs, videos, images, and other content (collectively “Content”) that you store, transmit, display, or otherwise use in connection with the Service, and for the consequences of your actions in connection with such Content and your use of the Service. You agree that Fordela has no responsibility to you or to any third party in connection with such Content. You are solely responsible for any losses or damage suffered by Fordela in connection with your Content. You hereby represent and warrant that you will not store or otherwise use any Content in connection with the Service that: (a) violates these Terms; (b) is defamatory, libelous, abusive, illegal, profane, indecent, pornographic, obscene, hateful, offensive, harassing, or threatening in any way; (c) constitutes or encourages conduct that would be considered a criminal offense or give rise to civil liability, or otherwise intentionally or unintentionally violate any law, rule or regulation; (d) violates any third party’s copyright, trademark, patent, trade secret, or other personal or proprietary right; (e) invades or interferes with the rights of privacy or publicity of any person; or (f) contains a virus, malicious code or any other harmful component.
  33. Fordela reserves the right, at any time in its sole discretion and without notice to you, to pre-screen, review, monitor, flag, filter, modify, refuse or remove any or all Content from the Service, but Fordela has no obligation to do so. You agree to immediately take down, delete or modify any Content that is stored by you through the Service that violates these Terms or any applicable laws, rules, or regulations, including pursuant to a take down, deletion or modification request from Fordela. In the event that you elect not to comply with a request from Fordela to take down, delete or modify certain Content, Fordela reserves the right to directly take down, delete or modify such Content. Fordela assumes no liability or responsibility arising from your activities in connection with the Service, including, without limitation, Content that you store or otherwise use in connection with the Service.
  34. Fordela claims no ownership or control over your right, title and interest in your Content. You retain copyright and any other intellectual property and other proprietary rights you already hold in your Content, and you are solely responsible for protecting those rights, as you deem appropriate. By submitting, storing, displaying, or otherwise using your Content in connection with the Service, you hereby grant Fordela a worldwide, royalty-free, fully-paid-up, non-exclusive license to reproduce, perform, adapt, reformat, display, distribute, and otherwise use such Content for the purpose of enabling Fordela to provide the Service to you, including, without limitation, storing and retrieving the Content, making the Content available through the Service, reformatting and adapting the Content for technical display and transmission, conforming the Content to the limitation and terms of the Service, and any other use related to the maintenance, provision and improvement of the Service.
  35. You hereby agree that Fordela, in its sole discretion, may use your trade names, trademarks, service marks, logos, domain names, and other distinctive brand features, in presentations, marketing materials, customer lists, financial reports and web site listings (including links to your web site) for the purpose of advertising or publicizing the Service.
  36. Fordela will not disclose any of your Content, except: (a) if you expressly authorize us to do so in connection with your use of the Service; (b) as necessary to provide the Service to you; or (c) to comply with the request of any governmental or regulatory body, subpoenas or court orders, or as otherwise required by applicable law, rule or regulation. If we receive a subpoena, court order, or other request from a governmental or regulatory body requesting the disclosure of any of your Content, we will use good faith efforts to provide you with reasonable notice to allow you to seek a protective order or other appropriate remedy (except to the extent Fordela’s compliance with the foregoing would cause it to violate a court order or other legal requirement). You are required to respond to third party requests about your Content, and we may provide your contact information to third parties, and suspend or terminate your access to the Service and your Content, if you fail to respond to such third party requests.
  37. Fordela may use usage patterns, trends and other statistical data derived from your Content and use of the Service for purposes of providing, operating, maintaining, or improving the Service.

  38. Feedback.
  39. If you send or transmit any communications or materials to Fordela by mail, electronic mail, telephone, or otherwise (“Feedback”), suggesting or recommending changes to our Site or Service, including without limitation, new features or functionality relating thereto, any comments, questions, suggestions, or the like, all such Feedback is, and will be treated as, non-confidential and non-proprietary. This means that you give up any claim that the use of such Feedback by Fordela or its agents, violates any of your rights including moral rights, privacy rights, proprietary or other property rights, rights of publicity, rights to credit for material or ideas, or any other right, including the right to approve the way Fordela uses such Feedback.
  40. You hereby assign all right, title, and interest in, and Fordela is free to use, without any attribution or compensation to you, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. You agree and understand that Fordela is not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and you have no right to compel such use, display, reproduction, or distribution.

  41. Copyright Infringement.
  42. Fordela respects the intellectual property and other proprietary rights of others and has a policy of removing content from the Site that infringes third party copyrights and suspending and/or terminating the Account of any user who uses the Site or Service in violation of copyright law, and where appropriate, blocking such user’s access to the Site and Service.
  43. If you are a copyright owner, or an agent thereof, and believe that your work is the subject of copyright infringement and appears on our Site, or is being used through the Service, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our copyright agent (designated below) with the following information in writing: (a) your physical or electronic signature; (b) identification of the copyrighted work claimed to have been infringed; (c) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Fordela to locate such material; (d) information reasonably sufficient to permit Fordela to contact you, such as an address, telephone number, and, if available, an e-mail address; (e) a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (f) a statement that the information in the notification is accurate, and under penalty of perjury, that you are, or that you are authorized to act on behalf of, the owner of an exclusive right that is allegedly infringed. Fordela’s designated copyright agent to receive notifications of claimed infringement under the DMCA is:

    Jason Deadrich
    900 Kearny St. 5th Floor
    San Francisco, CA 94133
    E-mail: deadrich@fordela.com

  44. Only DMCA or other intellectual property rights-related notices should be sent to the copyright agent; any other communications sent to the copyright agent will be destroyed.

  45. Exclusion of Warranties.
  46. YOUR USE OF THE SITE AND SERVICE IS ENTIRELY AT YOUR OWN DISCRETION AND RISK. THE SITE AND SERVICE ARE FURNISHED TO YOU “AS IS” AND WITHOUT WARRANTIES OR CONDITIONS, STATUTORY OR OTHERWISE, OF ANY KIND. FORDELA, ON BEHALF OF ITSELF, AND ON BEHALF OF ITS PARENTS, AFFILIATES, SUBSIDIARIES, LICENSORS AND THIRD PARTY SERVICE PROVIDERS, AND FORDELA’S AND THEIR DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS, SUCCESSORS, AND ASSIGNS, (COLLECTIVELY, THE “FORDELA PARTIES”): (A) EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE; (B) DOES NOT WARRANT THAT THE SERVICE, OR DATA PROVIDED THROUGH THE SERVICE, WILL MEET YOUR REQUIREMENTS, OR THAT ITS OPERATION WILL BE TIMELY, UNINTERRUPTED, SECURE, OR ERROR-FREE OR THAT ANY DEFECTS WILL BE CORRECTED; AND (C) DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS OR CONDITIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICE IN TERMS OF ITS ACCURACY, RELIABILITY, TIMELINESS, COMPLETENESS, OR OTHERWISE. YOU ASSUME TOTAL RESPONSIBILITY FOR YOUR USE OF THE SERVICE.
  47. THIS LIMITATION OF REMEDIES IS A PART OF THE BARGAIN BETWEEN YOU AND FORDELA. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY FORDELA OR ANY PERSON ON BEHALF OF FORDELA SHALL CREATE A WARRANTY OR CONDITION, OR IN ANY WAY CHANGE THIS EXCLUSION OF WARRANTY.
  48. NOTHING IN THESE TERMS, THIS SECTION 12, OR SECTION 13 BELOW, SHALL EXCLUDE OR LIMIT FORDELA'S WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW.

  49. Limitation of Liability.
  50. SUBJECT TO SECTION 12.3 ABOVE, IN NO EVENT WILL FORDELA OR THE FORDELA PARTIES BE LIABLE TO YOU, OR ANY THIRD PARTY, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, COMPENSATION, REIMBURSEMENT OR DAMAGES IN CONNECTION WITH, ARISING OUT OF, OR RELATING TO, THE USE, OR LOSS OF USE OF, THE SERVICE, LOSS OF PROFITS, LOSS OF GOODWILL, LOSS OF DATA OR CONTENT, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, SUBSEQUENT OR OTHER COMMERCIAL LOSS, OR FOR ANY OTHER REASON OF ANY KIND, WHETHER BASED ON CONTRACT OR TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OR STRICT LIABILITY), EVEN IF FORDELA OR THE FORDELA PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
  51. FORDELA AND THE FORDELA PARTIES WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR DAMAGES FOR BREACH OF ANY EXPRESS OR IMPLIED WARRANTY OR CONDITION, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL THEORY RELATED TO THE SITE OR SERVICE. IF, NOTWITHSTANDING THE FOREGOING, FORDELA OR ONE OF THE FORDELA PARTIES IS FOUND TO BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGE OR LOSS WHICH ARISES UNDER OR IN CONNECTION WITH THESE TERMS OR THE SERVICE, FORDELA OR THE RELEVANT FORDELA PARTY'S TOTAL CUMULATIVE LIABILITY TO YOU OR ANY THIRD PARTY SHALL IN NO EVENT EXCEED THE AMOUNT OF FEES ACTUALLY PAID BY YOU TO FORDELA DURING THE ONE (1) YEAR PERIOD PRECEDING THE DATE OF THE EVENT GIVING RISE TO FORDELA OR THE FORDELA PARTY’S LIABILITY.

  52. Indemnification.
  53. You hereby agree to indemnify, defend and hold harmless Fordela and the Fordela Parties (each an “Indemnified Party”), from and against any and all liability and costs (including, without limitation, attorneys’ fees and costs) incurred by the Indemnified Party(s) in connection with any actual or alleged claim arising out of: (a) your use of the Service; (b) any breach or alleged breach by you of these Terms; (c) any Content or Feedback provided by you; (d) any breach or alleged breach by you of a third party’s rights, including, without limitation, any intellectual property, privacy or publicity rights; (e) any damage caused by or alleged to have been caused by you to the Site or Service; or (f) any actual or alleged violation or non-compliance by you with any applicable law, rule or regulation.
  54. Counsel you select for the defense or settlement of a claim must be consented to by Fordela and/or the Indemnified Party(s) prior to counsel being engaged to represent you and Fordela and/or the Indemnified Party(s). You and your counsel will cooperate as fully as reasonably required, and provide such information as reasonably requested, by the Indemnified Party(s) in the defense or settlement of any claim. Fordela and/or the Indemnified Party(s) reserves the right, at its own expense, to assume the exclusive defense or settlement, and control of any matter otherwise subject to indemnification by you. You shall not in any event consent to any judgment, settlement, attachment, or lien, or any other act adverse to the interests of Fordela or any Indemnified Party(s) without the prior written consent of Fordela and/or the Indemnified Party(s).

  55. Changes to Service.
  56. Fordela is constantly striving to provide the best possible experience for its Service users. You acknowledge and agree that the form and nature of the Service which Fordela currently provides may change from time-to-time without prior notice to you, subject to the terms in Sections 4.5, and 15.2. Changes to the form and nature of the Service will be effective with respect to all versions of the Service (including the Superseded Version (as defined below)). Examples of changes to the form and nature of the Service include, without limitation, changes to fees and payment policies, security patches, additional functionality, reduced functionality, and other enhancements.
  57. If Fordela in its sole discretion chooses to cease providing the current version of the Service, whether through discontinuation of the Service, or by upgrading the Service to a newer version, the current version of the Service will be maintained as an existing version and become the “Superseded Version.” Fordela will issue an announcement if the current version of the Service will be superseded. For a period of [one hundred and eighty (180)] calendar days after such an announcement (the “SV Period”), Fordela will use commercially reasonable efforts to continue to make the Superseded Version available and to respond to any problems with the Superseded Version, that Fordela in its sole discretion, deems to be critical. During such SV Period, no new features or functionality will be added to the Superseded Version and the terms of the SLA will not apply to the Superseded Version.

  58. Termination of Service.
  59. You may stop using the Service at any time by closing your Account, or ceasing to use the Service. In such event, you will not be entitled to any refund of any fees that you have paid prior to you ceasing to use the Service.
  60. Fordela reserves the right in its sole discretion to cease or suspend providing all or any part of the Service, or the Superseded Version, immediately without any notice to you, if: (a) you breach, or threaten or intend to breach, these Terms; (b) Fordela is required to do so under any applicable law, rule or regulation; (c) the Service or Superseded Version relies on data, services or another business relationship between Fordela and a third party service provider, and such relationship terminates or changes in such a way that affects Fordela’s ability to continue providing the Service or Superseded Version; (d) continuing to provide the Service or Superseded Version could create a substantial economic burden on Fordela as determined by Fordela in its sole discretion; or (e) continuing to provide the Service or Superseded Version could create a security risk or material technical burden as determined by Fordela in its sole discretion.
  61. If your use of the Service is terminated or suspended pursuant to Sections 16.1 or 16.2 above, except to the extent prohibited by any applicable law, rule or regulation, you will have access to, and the ability to export, your Content for a period of thirty (30) calendar days following such termination or suspension. Fees will continue to be assessed based on your actual use of the Service during such period. Without limiting the foregoing, the rights set forth in this Section 16.3 are subject to your payment of any outstanding fees due upon and after termination of your use of the Service.
  62. Any of your obligations under these Terms which by their nature are intended to survive the termination of your use of the Service, shall continue to apply to you after you cease to use the Service.
  63. Fordela may notify the relevant law enforcement authorities or other third parties, of any illegal or other prohibited conduct by you, including, without limitation, your violation of these Terms or unauthorized use of the Site or Service.

  64. Governing Law and Venue.
  65. These Terms will be construed and enforced in all respects in accordance with the laws of the state of California, without reference to its choice of law rules. Except as set forth below in Section 17.2, the federal and state courts seated in the City and County of San Francisco, California, shall have sole and exclusive jurisdiction for all purposes in connection with any action or proceeding that arises from, or relates to, these Terms and you hereby irrevocably waive any objection to such exclusive jurisdiction; provided however, that Fordela may seek to enforce any judgment in its favor in any court of competent jurisdiction.
  66. Notwithstanding the foregoing, Fordela may seek injunctive or other equitable relief in any court of competent jurisdiction to protect its proprietary and other rights. You agree that your breach of these Terms may result in immediate and irreparable damage to Fordela for which there is no adequate remedy at law.
  67. The United Nations Convention on Contracts for the International Sale of Goods in its entirety is expressly excluded from these Terms, including, without limitation, application to the Site or Service. Furthermore, these Terms (including without limitation, the Site and Service) will not be governed or interpreted in any way by referring to any law based on the Uniform Computer Information Transactions Act (UCITA) or any other act derived from or related to UCITA.
  68. Any cause of action arising under these Terms must be commenced by you within one (1) year after the claim or cause of action arises.

  69. Third Party Web Sites.
  70. The Site and Service may provide links to other web sites that are not owned or operated by Fordela (“Third Party Web Sites”). Fordela provides these links to you as a convenience only, and Fordela does not verify, make any representations concerning, or take responsibility for, such Third Party Web Sites, or the products or services offered through such third party web sites, including, without limitation, the truthfulness, accuracy, quality, or completeness of the content of, or activities conducted on, such Third Party Web Sites. You should use your own independent judgment before accessing and using such Third Party Web Sites, or products or services offered through such third party web sites.
  71. These Terms and the Privacy Policy do not apply to such Third-Party Web Sites, and you should review such Third Party Web Sites’ privacy policies, terms and conditions and business practices as they may be different to those of Fordela and it is your sole responsibility to comply with such terms. Your dealings and communications with any third party in connection with the Third Party Web Sites are solely between you and such third party.
  72. Any reference on the Site, or through the Service, to any product, process, publication or service of any third party, by trade name, domain name, trademark, trade identity, service mark, logo, manufacturer or otherwise, does not constitute or imply Fordela’s endorsement or recommendation thereof, and your use of any Third Party Web Sites and third party product, process, publication, or service is entirely at your own risk.

  73. Miscellaneous Legal Terms.
  74. These Terms, the SLA(s) and the Privacy Policy, together constitute the entire agreement between you and Fordela with respect to the Service (excluding any services which Fordela may provide to you under a separate written agreement), and completely supersedes, cancels and replaces any and all other written or oral agreements or understandings previously existing between you and Fordela with respect to the Service.
  75. The failure of Fordela to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision.
  76. If any part of these Terms is held invalid, illegal or unenforceable, that provision shall be enforced to the maximum extent permissible so as to maintain the intent of these Terms, and the other parts will remain in full force and effect.
  77. Any notice or other communications by Fordela relating to the Service may be made by letter, e-mail or posting on the Site, and you hereby consent to receive notices and other communications in electronic form to the extent permitted by applicable law.
  78. These Terms shall not be interpreted or construed to confer any rights or remedies on any third parties, except that each Indemnified Party shall be a third party beneficiary hereunder and accordingly, shall be entitled to directly enforce and rely upon any provision of these Terms that confers a right or remedy in favor of it.
  79. Fordela may assign or transfer its rights, or delegate any performance, under these Terms to a third party in its sole discretion. You may not assign or otherwise transfer your rights, or delegate your performance, under these Terms to any third party without in each and every case, Fordela’s express prior written consent.
  80. Fordela will not be liable for failing or delaying performance of its obligations resulting from any condition beyond its reasonable control, including but not limited to, governmental action, acts of the common enemy, earthquake, fire, flood or other acts of God, the elements, epidemics, labor conditions, power failures, and Internet disturbances.
  81. Fordela may take any legal action against you to enforce these Terms or to prevent the breach of these Terms, including, without limitation, seeking equitable remedies or using technical means at its disposal. In addition to any other legal, equitable or technical rights and remedies that it may have, Fordela may without limitation, immediately terminate or suspend your use of the Service and access to your Content, if Fordela believes in its sole discretion that you are violating these Terms, or that you intend to do so.
  82. Fordela may add to, change or remove any part, term or condition of these Terms, the SLA or Privacy Policy at any time without prior notice to you. It is your responsibility to check these Terms, the SLA and Privacy Policy periodically for changes. By continuing to use the Service, you are indicating your acceptance of such changes. However, we will provide written notice to you of any significant changes to these Terms, the SLA or Privacy Policy (including notices posted on the Site or sent to your registered e-mail address).
  83. You may not access the Service if you are a direct competitor of Fordela’s, 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 purposes.
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