Peer39 Terms of Service
Updated June 15th, 2020
Welcome to Peer39!
Thank you for using our contextual advertising and other services (collectively, the “Service”). The Service is provided by Peer39 Tech, LLC, a Delaware limited liability company (“Peer39”), via the Site (as defined below), and includes our online platform for the creation and management of bidding data categories.
PLEASE READ THESE PEER39 TERMS OF SERVICE (THESE “TERMS”) CAREFULLY.
BY CLICKING THE BUTTON ACCEPTING THESE TERMS, REGISTERING FOR AN ACCOUNT WITH US, OR OTHERWISE ACCESSING, USING, OR INSTALLING ANY SERVICE OR OFFERING OF PEER39, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS.
PEER39 REQUIRES YOUR AGREEMENT TO THESE TERMS IN EXCHANGE FOR YOUR USE OF THE SERVICE. IF YOU DO NOT AGREE TO ALL OF THESE TERMS, PEER39 WILL NOT PROVIDE THE SERVICE, AND YOU MAY NOT ACCESS, USE OR INSTALL ANY PART OF THE SERVICE. IF AT ANY TIME IN THE FUTURE YOU DO NOT AGREE WITH ALL OF THESE TERMS, YOU MUST IMMEDIATELY REFRAIN FROM CONTINUING TO USE AND/OR OTHERWISE ACCESS THE SERVICE, AND YOU AGREE TO NOTIFY PEER39 IN THAT CASE. IF YOU HAVE ANY QUESTIONS ABOUT THESE TERMS, PLEASE EMAIL THOSE QUESTIONS TO INFO@PEER39.COM OR MAIL THEM TO: PEER39 CUSTOMER SUPPORT, 45 west 21st Street, New York, NY 10010.
Peer39 may from time to time modify these Terms by posting an updated version to the Site, so you are encouraged to review the Site periodically to review these Terms. Your continued access to or use of the Service following the posting of any such updated version of these Terms shall constitute acceptance of such updated Terms. If any such update contains any significant changes that materially affect your relationship with us, you will be notified via email or upon accessing the Service. If you do not agree to any such updated Terms, you must terminate your access to the Site and use of the Service in accordance with Section 7.3 of these Terms.
ANY PERSON CLICKING THE BUTTON ACCEPTING THESE TERMS REPRESENTS TO PEER39 EITHER (A) THAT HE OR SHE HAS THE AUTHORITY TO BIND CUSTOMER TO THESE TERMS, OR (B) HE OR SHE IS ACCESSING THE SITE AND USING THE SERVICE SOLELY ON BEHALF OF A CUSTOMER (AS DEFINED BELOW) AND IS AUTHORIZED BY SUCH CUSTOMER TO DO SO.
2. “Administrative User” shall initially mean the person named in the Sign-Up Form, who will be Customer’s primary point of contact with Peer39. The Administrative User can be changed from time to time thereafter only in writing by a duly authorized representative of Customer, subject to approval by Peer39.
3. “Authorized User” means the personnel of Customer authorized by Customer to use the Service (including the Administrative User) and for whom Peer39 or the Administrative User has created a user identifier and password.
4. “Customer” (or “you,” “yours,” or similar words) means the business organization named in the Sign-Up Form or that otherwise completes the registration process on our Site for access to the Service.
5. “Customer Data” means the personal or business information and any data or materials of Customer uploaded by Customer to or used in the Service, such as, by way of example, Customer employee and client information, user notes, advertising campaign data, Customer’s custom bidding categories, other materials and content, and completed reports (i.e., category reports, daily activity reports, and the like), excluding any Peer39 Materials included in any such reports.
6. “Peer39 Materials” means all content, information, documentation and other materials comprising the Service or on the Site (excluding Customer Data), including without limitation, computer hardware, software, and software updates, including, Peer39’s trademarks and logos, the visual interfaces, graphics, designs, logos, compilation, information, computer code (including source code or object code), algorithms, scripts, and application programming interfaces, services, text, pictures, information, data, sound files, other files and the selection and arrangement thereof, and all derivative works thereof and improvements or enhancements thereto, and other tangible equipment necessary to deploy and provide the Service via the Site or other means.
7. “Intellectual Property Rights” means any and all rights existing from time to time under patent law, copyright law, trade secret law, trademark law, unfair competition law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide, including, without limitation, future rights in inventions, patents, designs, copyrights, trademarks, service marks, databases and topography rights (whether or not any of those is registered and including applications for registration of the foregoing, renewals, extensions, continuations, divisions, and reissues), together with all trade secrets, know-how and all rights or forms of protection of a similar nature or having equivalent or similar effect to any others which may subsist anywhere in the world.
8. “Sign-Up Form” means a form provided by Peer39, via the Site or otherwise, and completed and submitted by Customer or on Customer’s behalf setting forth, as applicable, the name of Customer’s business organization, the name of the initial Administrative User, the type of Service being used, any applicable fees, the number of Authorized Users, and such other information as may be requested in the Sign Up Form, as may be amended by Peer39 from time to time.
10. “Commencement Date” means the date Peer39 grants Customer access to the Service.
11. “Service Period” means the period commencing on the Commencement Date and ending upon the termination of Customer’s access to the Service in accordance with Section 7 of these Terms.
12. “Terms” means these Peer39 Terms of Service, as may be amended by Peer39 from time to time by posting updates to the Site.
2. SUBSCRIPTION FOR THE SERVICE
1. Signing Up. The Service is offered to Customers and may include access to self-service functionality via the Site. Subject to the conditions specified in, and compliance by Customer with, these Terms, Peer39 agrees to provide Customer with an Account for use of the Service, including providing Customer and its Authorized Users with access to the Site for use of the Service.
2. Terms and Conditions Relating to Use of the Service. Customer shall comply with these Terms and any additional terms and conditions and documentation set forth on the Site from time to time, including terms and conditions for the creation and use of Customer’s Account. Any changes to Customer’s license to use the Service must be accepted by Peer39 in writing.
3. Non-Transferability of Account. Customer’s license to use the Service and Account are non-transferable; no portion of Customer’s Account or license to use the Service may be transferred, assigned (whether by operation of law or otherwise), or resold to third parties.
4. Customer Representations. Customer and each Administrative User and Authorized User represent and warrant to Peer39, as of the Commencement Date and throughout the Service Period, that: (a) the Administrative User or Authorized User is over the age of eighteen (18) years; (b) the Administrative User is the authorized agent of Customer and has the power and authority to cause Customer to subscribe to the Service and to bind Customer to Customer’s obligations under these Terms, the terms of the Sign-Up Form and any changes to information set forth in the Sign-Up Form made by the Administrative User and approved by Peer39; (c) all information provided by or on behalf of Customer to Peer39 is truthful, accurate and complete; (d) Customer shall comply with these Terms and all applicable laws at all times during the Service Period; and (e) Customer has provided and will provide accurate and complete registration information, including, without limitation, the Administrative User’s or Authorized User’s legal name and email address.
3. ACCESS AND USE OF SERVICE
1. Delivery of Access. Customer, via the Administrative User, shall be provided with the information necessary to access and use the Service, including download information and the Administrative User’s identification and password allowing access to the Service, within forty-eight (48) hours of the Commencement Date.
2. Scope of Service Use. Customer agrees that: (a) its Account and its applications will be disabled for the remainder of any month if it exceeds reasonable allocated capacity and resources as determined by Peer39 in its sole discretion; (b) Peer39 is not liable for any loss or damage caused as a result of disabling Customer’s account as provided in the preceding clause; (c) Customer will not hide or otherwise tamper with any Peer39 branding on its apps, forms, or reports; (d) Customer will maintain accurate and up to date contact information with Peer39; (e) Customer will not sign up for more than one account without Peer39’s prior written consent; (f) Customer consents to receive sales and marketing emails from Peer39 and its partners, including on behalf of its Administrative User and Authorized Users; and (g) Peer39 in its sole discretion may immediately terminate Customer’s access to the Service in the event that Customer breaches or fails to meet any of the above requirements or otherwise violates these Terms. Peer39 reserves the right, in its sole discretion, to discontinue Customer’s access to and use of the Service at any time.
3. Authorized Users. The Administrative User may add Authorized Users from time to time to access the Service as described in the Service documentation and subject to any limitations that have been agreed upon between Peer39 and Customer. Customer shall be responsible for all actions of its Authorized Users, including, without limitation, any breach of these Terms by any Authorized User, and any action taken by any Authorized User shall be deemed an action by Customer for purposes of these Terms. For each Authorized User whose contact and other personal information will be stored in the Service, Customer shall be solely responsible for obtaining the consent of such Authorized User to be bound by these Terms and to use the Service for such purpose, whether on a device provided by Customer or on such Authorized User’s personal device, including, without limitation, the collection and use by Peer39 of any data derived from the use of the Service, including, without limitation, any such derived data that may be considered “personally information” or “personal data” of such Authorized User under applicable privacy laws.
4. Security of Customer’s Account. Customer shall take prudent measures to maintain the confidentiality of all passwords and to protect against unauthorized use of Customer’s Account, including changing passwords as necessary to prevent anyone other than Authorized Users from accessing the Service. In any event, Customer shall be solely responsible for the security of, and any authorized or unauthorized access to or activity on, Customer’s Account by any person, which shall include responsibility for all charges incurred from use of the Service (if any) under Customer’s Account. Customer agrees to ensure that each Authorized User exits from Customer’s Account at the end of each session whenever such Authorized User accesses the Service, and to notify Peer39 immediately of any unauthorized use of its Account or password or any other breach of security.
5. Compatibility and Security. Customer shall be solely responsible for (a) providing, maintaining and ensuring compatibility with the Service and all hardware, software, electrical, and other physical requirements for accessing and using the Service, including, without limitation, telecommunications and internet access connections and links, web browsers, handheld equipment or other equipment, and programs or services required to access and use the Service; and (b) acquiring and maintaining technology and procedures for maintaining the security of its link to the Internet and method of accessing and using the Service.
6. Monitoring of Customer’s Use. Peer39 reserves the right to internally monitor Customer’s use of the Service. Any use of the Service under Customer’s Account by any person not specifically permitted under these Terms is strictly prohibited and may result, in Peer39’s sole and absolute discretion, in the suspension or termination of Customer’s access to the Service. Notwithstanding the foregoing, Customer acknowledges that Peer39 does not monitor the content of the information passing through the Service for purposes of verifying accuracy or legal compliance, and agrees to use commercially reasonable efforts to ensure that the information it and its Authorized Users transmit to or through the Service complies with all applicable laws and regulations, whether now in existence or hereafter enacted.
7. Training and Support. Customer shall have access to Peer39’s training resources provided through the Site at no additional charge. Peer39 shall provide technical support to allow Authorized Users to report technical problems with the Site or the Service and to seek assistance with the use of the Service. Technical support services shall be outlined in Peer39’s resource center and will be provided as-is and without warranty of any kind. The availability, scope and content of training and help resources for the Service are in Peer39’s sole and absolute discretion and may be modified or withdrawn at any time without liability to Peer39. Peer39 shall not provide technical support relating to problems, errors or malfunctions caused by, among other things, (a) malfunction of Customer’s equipment; (b) Customer’s software; or (c) any other cause not directly attributable to Peer39 or the Service.
8. Changes to Service. Peer39, from time to time and with or without notice to Customer, may in its sole discretion make enhancements, upgrades, modifications, or other changes to the Site and/or the Service, including, without limitation, retirement of the Service or any features of the Service and changes in the delivery, format, content, scope of services, medium, and means of access. Any new upgrades, updates, features, and functionalities Customer chooses to use may be made available free of charge or may require additional fees, in Peer39’s sole discretion.
9. Continuing Accessibility to Service. Customer acknowledges and agrees that the Service may be inaccessible or inoperable from time to time for any reason, including, without limitation: (a) equipment or service malfunctions; (b) periodic maintenance procedures or repairs which Peer39 may undertake; or (c) causes beyond the control of Peer39 or which are not reasonably foreseeable by Peer39.
10. Coverage and Data Transmission. Customer acknowledges that actual availability, coverage and operation of the Service depends on many factors, including, without limitation, system availability and capacity, system and equipment upgrades, repairs, maintenance, modifications and relocation, Customer’s equipment, terrain, signal strength, structural conditions, weather and atmospheric conditions, governmental regulations, suspected fraudulent activities, natural and human disasters, and other conditions beyond Peer39’s reasonable control. Peer39 will not be responsible for unavailability of the Service or limits in coverage or performance degradation due to any such conditions. Customer acknowledges that the Service may be interrupted, halted, or curtailed, or the quality of transmissions may be diminished, due to such conditions at any time and without the ability for Peer39 to provide prior notice.
11. Errors or Defects. Customer agrees to notify Peer39 of any non-conformity, error, or defect of the Service promptly after Customer’s discovery of same.
12. Technical Data. All performance data relied on by Peer39 for the provision of the Service are based upon information furnished by Customer in accordance with its requirements, and Peer39 assumes no responsibility for the accuracy of such information.
13. End User License Agreement. If Customer or any Authorized User connects to the Service by downloading or installing any Peer39 Materials, any use of such Peer39 Materials is subject to any applicable End User License Agreement that accompanies such download or installation.
4. FEES AND CHARGES
1. Fees. Peer39 reserves the right to charge fees for access to and use of the Service. If Customer elects to use any fee-based offering in the Service, Customer shall pay to Peer39 the applicable fees in accordance with the payment terms specified by Peer39.
2. Taxes. Customer shall pay any applicable taxes or fees related to any products or services purchased from Peer39 (excluding taxes on Peer39’s income), including, without limitation, any applicable currency conversion charges, sales, use, value-added, goods and services, transaction, personal property or other tax, duty or levy of any kind.
5. OWNERSHIP AND PRIVACY
1. Ownership of the Service. Customer acknowledges that: (a) the Service and the Site contain proprietary and confidential information that is protected by applicable United States and international intellectual property laws; (b) Peer39 and/or its third party licensors own all right, title and interest, including, without limitation, all Intellectual Property Rights, in and to the Service, the Site, any content that may be presented or accessed through the Service or the Site, and all transactional, performance, and other data derived from the use of the Service or the Site; and (c) Customer’s access to the Service and the Site is licensed and not sold. Unless otherwise expressly stated in writing by Peer39, these terms grant Customer only a limited, non-sublicensable license to access and use the licensed portions of the Service for its internal business use only, and Customer hereby acknowledges and agrees that no title or ownership in the Service is being transferred or assigned hereunder, and these Terms shall not be construed as a sale of any rights in the Service or any Peer39 Intellectual Property Rights. All rights not specifically granted under these Terms are reserved to Peer39 and its licensors.
2. Customer Grant is Non-Exclusive; Other License Terms. Customer acknowledges that the limited license right granted to Customer to access and use the Service is non-exclusive, with absolutely no limitation on Peer39’s ability to provide to any other parties the right to access and use the Service, including, without limitation, Customer’s competitors. Except as expressly agreed otherwise, Peer39 can terminate this license at any time, without notice, including where we reasonably consider that: (a) your use of the Service violates these Terms, any other contract between Customer and Peer39, or applicable law; (b) you fraudulently use or misuse the Service; or (c) we are unable to continue providing the Service to you due to technical or legitimate business reasons.
3. Customer Data. Customer, not Peer39, shall have sole responsibility for the contents, accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and Peer39 shall not be responsible or liable for Customer’s use of the Customer Data in, or in connection with, the Service, or for the deletion, correction, destruction, damage, loss, or failure to store any Customer Data. Peer39 reserves the right to withhold, remove and/or discard Customer Data without prior notice to Customer for any reason, including, without limitation, Customer’s breach of these Terms or non-payment of applicable fees.
4. Access to Customer Data. Upon termination of Customer’s access to the Service for any reason, Customer’s right to access or use Customer Data in the Service immediately ceases, and Peer39 shall have no obligation to maintain or forward any Customer Data. Peer39 may, in its sole discretion, charge a fee to store and provide Customer with access to its Customer Data after termination.
5. Security Standard. As part of the Service, Peer39 will implement reasonable security procedures consistent with prevailing industry standards to protect Customer Data from unauthorized access (the “Security Standard”). Provided that Peer39 is in compliance with the Security Standard and is not otherwise negligent, the parties agree that Peer39 shall not, under any circumstances, be held responsible or liable for (a) situations where data or transmissions are accessed (i) by third parties through illegal or illicit means; or (ii) through the exploitation of security gaps, weaknesses, or flaws unknown to Peer39 at the time; or (b) any other matter beyond Peer39’s reasonable control. Peer39 will report to Customer any unauthorized access to Customer Data, and Peer39 will use diligent efforts to promptly remedy any breach of security that resulted in such unauthorized access. In the event notification to persons included in such Customer Data is required, Customer shall be solely responsible for any and all such notifications, at Customer’s sole cost and expense.
6. Retention of Customer Data. Peer39 shall maintain Customer Data only through the Service Period as set forth above. Peer39 routinely backs-up Customer Data on at least a daily basis. Nevertheless, Customer acknowledges that it is assuming the risk that Customer Data may be lost due to any cause, and therefore Customer is solely responsible for backing up Customer Data throughout the Service Period.
7. Limitations on Privacy. Peer39 shall take commercially reasonable measures to protect the confidentiality of and to avoid disclosure to third parties of any Customer Data. Peer39 will not monitor, edit, or disclose any Customer Data without Customer’s prior consent (which may be provided via Customer’s settings in the Service which are intended to effect a disclosure of Customer Data to third parties), unless Peer39 has a good faith belief that such action is necessary to: (a) comply with legal process or other legal requirements of any governmental authority; (b) protect and defend the rights or property of Peer39; (c) enforce these Terms; (d) protect the interests of users of the Service other than Customer; or (e) operate or conduct maintenance and repair of Peer39’s services or equipment.
8. Authorization to Use Customer Name for Marketing. Notwithstanding anything to the contrary in these Terms, Customer acknowledges that Peer39 may, and expressly authorizes Peer39 to, disclose on the Site and Peer39’s sales and marketing materials that Customer is a client of Peer39.
6. RESTRICTIONS ON USE
1. Prohibited Uses. Customer is solely responsible for any and all acts and omissions that occur under Customer’s Account. Customer may not subscribe to, access, permit access by any third party, or use the Service at all if Customer is a competitor of Peer39 in the provision of contextual advertising data and enabling solutions or if such access or use is on behalf of a third party competitor of Peer39. Customer may not access or use the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes. Customer may not allow any Authorized User, employee, consultant, or other third party to perform any technical security integrity review, penetration test, load test, denial-of-service simulation or vulnerability scan without Peer39’s prior written consent. Customer agrees not to engage in unacceptable use of the Service, which includes, without limitation, use of the Service to: (a) conduct any business that is unlawful; (b) collect information about individuals or other third parties without their express consent; (c) interfere with or disrupt the integrity or performance of the Service or the data contained therein; (d) interfere with, disrupt, or attempt to gain unauthorized access to the Service or its related systems or networks, or to other accounts on the Service or any other computer network; (e) disseminate, store or transmit material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (f) disseminate, store, transmit, publish, submit, copy, upload, download, post, reproduce, or distribute any content, communications or other materials that actually or potentially infringe upon any Intellectual Property Rights of any person unless Customer owns or controls the rights thereto or has received all necessary consents to do the same; (g) export, re-export or permit use or downloading of the Service or any portion thereof, or any content, in violation of any export or import law, regulation or restriction of the United States and its agencies or authorities, or without all required approvals, licenses or exemptions; or (h) engage in any other activity on the Service that violates any applicable laws or that is deemed by Peer39 to be in conflict with the spirit or intent of these Terms. Peer39 reserves the right to disclose any information or materials as necessary to satisfy any applicable law, regulation, legal process, or government request, or to edit, refuse to post, or remove any information or materials, in whole or in part, from the Service, at Peer39’s sole discretion, without any prior notice to Customer.
2. Prohibited Actions. Customer agrees that it will not, and will not allow any third party (including, without limitation, its Authorized Users) to: (a) copy, sell, license, sublicense, distribute, transfer, modify, adapt, translate, publicly display or perform, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from, the Service, the Site, or the Peer39 Materials, or any content that may be presented or accessed through the Service or the Site for any purpose, without Peer39’s prior written consent; or (b) take any action to circumvent or defeat the security deployed or enforced by any functionality contained in the Service, the Site, or the Peer39 Materials.
3. Personal Information. Customer acknowledges that, other than the information required by the Service to set up and maintain individual access credentials for Customer’s Administrative User and Authorized Users, it will not include in Customer Data uploaded into the Service or use the Service to capture, disseminate, store or transmit any personal information or personal data (or similar terms, each as defined under applicable data protection or privacy laws) of individual persons, including “Protected Health Information” (including Self-Reported Information and Genetic Information) as such terms are defined in the Health Insurance Portability and Accountability Act of 1996. Customer further acknowledges that the Service is not intended for the collection, use or other processing of personal information or personal data for targeted or interest-based advertising purposes, and Peer39 does not represent or warrant that the Service complies with any advertising industry self-regulatory codes or standards governing such uses.
4. No Resale Rights Granted. Except as otherwise expressly agreed in writing with Peer39, (a) Customer shall use the Service solely to support its business and shall not use the Service to establish or support an independent business of providing contextual data for advertising purposes; (B) Customer may not offer, market, license, sublicense, rent, sell, resell or distribute the Service or represent to third parties that the Service is owned by Customer or that Customer has the exclusive right to access or use the Service; and (C) Customer shall not create Internet “links” to or from the Service, or “frame” or “mirror” any content forming part of the Service, or modify, copy or create derivative works based on the Service, including any Peer39 Materials.
5. Proprietary Materials. Customer acknowledges and agrees that the Peer39 Materials: (a) are the exclusive and proprietary property and information of Peer39, either owned or under license, and may not be copied, imitated, reproduced, displayed, distributed, transmitted, decompiled or otherwise used without the prior written consent of Peer39; (b) are provided to Customer in confidence and may only be accessed and used by Customer and its Authorized Users; and (c) embody valuable confidential and secret information of Peer39, the development of which required the expenditure of considerable time, effort, and money by Peer39. Except as permitted by these Terms or the Service documentation, Customer agrees that it will not, directly or indirectly, disclose or share the Peer39 Materials or any related materials or information to any unauthorized person or entity, including, without limitation, third parties, without the prior written consent of Peer39. In the event a request is made for Customer to disclose the Peer39 Materials or any related materials or information to a third party, Customer promptly shall give written notice to Peer39 identifying the requesting persons or entities and, if known to Customer, stating the reasons such requests have been made. Peer39 shall determine in its sole and absolute discretion whether the requested disclosures may be made, and if not, what action to take. Any use of the Service or the Peer39 Materials except as specifically authorized in these Terms, without the prior written permission of Peer39, is strictly prohibited and may violate civil or criminal laws, including laws protecting Intellectual Property Rights or other laws. Unless explicitly stated in these Terms, nothing in them shall be interpreted as conferring any license to Intellectual Property Rights, whether by estoppel, implication or other legal principles.
6. Proprietary Notices. Customer shall not remove, destroy, alter, cancel or deface any copyright, trademark, trade secret, or other proprietary notices or ownership identification of Peer39 or any third party placed upon or made part of the Service or any portion thereof, including any documents or other items downloaded from or generated by the Service.
8. Customer Feedback. If Customer chooses to communicate to Peer39 any suggestions for improvements to the Service or Site (collectively, “Feedback”), Peer39 shall own all right, title, and interest in and to the Feedback and will be entitled to use the Feedback without restriction. Customer hereby irrevocably assigns to Peer39 all right, title and interest in and to any Feedback and waives in favor of Peer39 and its successors and assigns all rights in the Feedback, including, without limitation, any moral rights, and agrees to provide Peer39 such assistance as Peer39 may request to document, perfect, and maintain its rights to the Feedback. Customer acknowledges and agrees that, by providing any Feedback to Peer39, Customer is not entitled to any compensation or reimbursement of any kind from Peer39 under any circumstances.
9. Peer39 Communications. Any email communications sent to Customer by Peer39, as well as related correspondence, links, and any attached documentation, is confidential, protected by intellectual property laws and subject to these Terms. Any retransmission, unauthorized use, or disclosure to anyone other than Customer’s Authorized Users is prohibited and may be considered a breach of these Terms.
7. TERM, SUSPENSION AND TERMINATION
1. Suspension of Service; Re-activation Fee. If Customer breaches any of its representations, warranties, or covenants under these Terms, then in addition to any other remedies available under these Terms, at law or in equity, Peer39 may, in its sole and absolute discretion, immediately suspend or terminate Customer’s access to the Service without notice to Customer.
2. Term. The Service Period shall commence on the Commencement Date and shall continue in effect on a month-to-month basis until terminated as provided in this Section 7.
3. Customer Termination. Customer may terminate its use of the Service at any time, for any reason or no reason, upon written notice to Peer39.
4. Peer39 Termination. Without limiting Peer39’s rights under Section 7.1, Peer39 may terminate Customer’s access to and use of the Site and Service at any time, for any reason or no reason, upon thirty (30) days prior written notice to Customer.
5. Effect of Termination. Upon termination of Customer’s access to and use of the Service for any reason whatsoever, access to and use of the Service by Customer shall be immediately discontinued. In such event, the license and rights granted hereunder shall expire, and Customer shall have no further right to access or use to the Service. In addition to the provisions of this Section 7.5, the termination of these Terms or Customer’s access to and use of the Service shall not relieve the parties of the rights and obligations set forth in Sections 5, 6, 9, 10, 11, 12, and 13 of these Terms, which provisions shall continue after and survive any such termination.
8. CUSTOMER’S REPRESENTATIONS AND WARRANTIES
9. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY
1. Disclaimer of Warranties. Customer agrees that its use of the Service is at its sole risk and acknowledges that the Service and anything contained within the Service are provided “AS IS” and on an “AS AVAILABLE” basis, and that Peer39 does not make or give any representation, warranty, condition or other term (collectively, “promises”) of any kind, whether express, implied, statutory or otherwise, with respect to the Service. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, PEER39 DISCLAIMS ALL IMPLIED PROMISES AND WARRANTIES WITH RESPECT TO THE SERVICE, including, without limitation, any implied promises or warranties of merchantability, satisfactory quality, fitness for a particular purpose or use, non-infringement or quiet enjoyment, and any promises or warranties arising out of any course of dealing, performance, or trade usage. Peer39 does not warrant that the Service is compatible with Customer’s equipment or any third party platform, that the Service is or will be available on any third party platform, or that the Service is free of errors, viruses or any other harmful, invasive, or corrupted files, and is not liable for any damage Customer may suffer as a result of such destructive features, including, without limitation, any loss of Customer Data; provided, however, that notwithstanding the foregoing disclaimer, Peer39 shall perform all commercially reasonable steps to protect the Service from viruses or any other harmful, invasive, or corrupted files. Peer39 will not be held responsible for: (a) any fault, inaccuracy, omission, delay or any other failure in the Service; (b) any errors or inaccuracies in any Customer Data; (c) service interruptions due to factors representing inherent risks associated with the use of electronic communications, including network interruptions (including the internet), communications failures, third party server downtime, power outages or system failures; or (d) any unauthorized access to, use of, alteration of or deletion, destruction, damage or loss of Customer Data. Peer39 may discontinue any aspect of the Service, or may change the nature, features, functions, scope or operation of the Service, at any time. Peer39 also does not in any way make any promises or warranties that the Service will be provided in an uninterrupted manner, error-free or free from harmful components. In addition, Peer39 makes no promises that the Service will meet Customer’s requirements or expectations or that Customer will achieve any particular result from using the Service. Customer acknowledges and agrees that Customer is not using the Service or agreeing to these Terms in reliance on any promises (whether innocent or negligent) except as expressly set out in these Terms.
2. Disclaimer of Actions of Third Parties. Customer acknowledges and agrees that Peer39 does not and cannot control the flow of data to or from the Peer39 Materials and other portions of the Internet. Such flow of data depends on the performance of Internet services provided or controlled by third parties. At times, actions or inactions of such third parties can impair or disrupt Customer’s connections to the Internet (or portions thereof), including the Service. Although Peer39 will use commercially reasonable efforts to take actions it deems appropriate to remedy and avoid such events, Peer39 cannot guarantee that such events will not occur. PEER39 DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO THE PERFORMANCE OR NON-PERFORMANCE OF INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES.
3. LIMITATION OF SPECIAL DAMAGES. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 9.5 BELOW, IN NO EVENT (EXCLUDING THE EVENT OF BREACH OF SECTION 5, 6 OR 8 OF THESE TERMS) WILL EITHER PARTY OR ITS OWNERS, OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES OR AGENTS BE LIABLE TO THE OTHER PARTY OR ANYONE ELSE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR SAVINGS, LOST BUSINESS OPPORTUNITY, LOSS OF GOODWILL, OR LOSS OR CORRUPTION OF DATA) THAT MAY BE SUFFERED BY THE OTHER PARTY, WHETHER THE SAME ARISE IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF THE RELEVANT PARTY HAS BEEN ADVISED SPECIFICALLY OF THE POSSIBILITY OF SUCH DAMAGES, ARISING FROM THE USE OF OR INABILITY TO USE THE SERVICE OR ANY PORTION OF THE SERVICE, OR THE BREACH OF ANY PROVISION OF THESE TERMS.
4. LIMITATION OF LIABILITY. IN NO EVENT WILL PEER39’S LIABILITY UNDER THESE TERMS, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL AMOUNT ACTUALLY PAID TO PEER39 BY CUSTOMER FOR THE SERVICE DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE EVENTS GIVING RISE TO THE CLAIM.
5. EXCEPTIONS. THE EXCLUSIONS AND LIMITATIONS SET FORTH IN THIS SECTION 9 AND ELSEWHERE IN THESE TERMS WILL APPLY TO THE FULLEST EXTENT PERMISSABLE AT LAW, BUT NEITHER PARTY WILL EXCLUDE OR LIMIT LIABILITY FOR: (a) DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE OR THAT OF ITS OFFICERS, EMPLOYEES, CONTRACTORS OR AGENTS ACTING IN THE COURSE OF THEIR DUTIES; (b) FRAUD OR FRAUDULENT MISREPRESENTATION; OR (c) ANY OTHER LIABILITY THAT MAY NOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
1. Customer Indemnification of Peer39. Customer shall indemnify, defend and hold harmless Peer39 and its owners, officers, directors, managers, employees and agents against any and all losses, costs, damages or liabilities, including, without limitation, legal fees, costs and expenses (collectively, “Losses”) arising out of any claim, suit, action or other proceeding (“Claim”) brought against any of them by a third party, to the extent that such Claim is based on or arises in connection with (a) Customer’s use of the Service; (b) the Customer Data, (c) the use of the Service by any person using Customer’s Account; or (d) a violation of these Terms by Customer or any person using Customer’s Account.
2. Peer39 Indemnification of Customer. Peer39 shall indemnify, defend and hold Customer harmless against any and all Losses arising out of any Claim brought against Customer by a third party, to the extent that such Claim is based on or arises in connection with a claim that all or any portion of the Service, and use thereof in accordance with and subject to the limitations set forth in these Terms, infringes any Intellectual Property Rights of a third party. The foregoing obligations are conditioned on Customer: (a) notifying Peer39 promptly in writing of such Claim; (b) giving Peer39 sole control of the defense of such Claim and any related settlement negotiations; and (c) cooperating and, at Peer39’s request and expense, assisting in such defense. Customer shall have the right to participate in, but not control, any such defense or settlement, at Customer’s sole cost and expense. Without limitation of the foregoing, if the Service becomes, or in Peer39’s sole opinion is likely to become, the subject of an infringement Claim, Peer39 may, at its option and expense: (i) procure for Customer the right to continue using the Service; (ii) replace or modify the Service so that it becomes non-infringing; or (iii) terminate Customer’s access to and use of the Service, in whole or in part, as appropriate, upon written notice to Customer and refund Customer any fee pre-paid in respect of the Service upon such termination. Notwithstanding the foregoing, Peer39 will be relieved of its obligation under this Section 10.2 to the extent that any third party Claim is based upon: (A) any use of the Service not in accordance with these Terms or the terms of any other contract between Customer and Peer39; (B) any use of the Service in combination with products, equipment, software, services or data not supplied by Peer39 if such infringement would have been avoided but for the combination with other products, equipment, software or data; (C) any use of any release of the Service other than the most current release made available to Customer; or (D) any unauthorized modification of the Service by Customer or its agents or subcontractors. THIS SECTION 10.2 STATES PEER39’S ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY FOR ANY THIRD PARTY CLAIMS OF INFRINGEMENT.
11. RESOLUTION OF DISPUTES BY ARBITRATION
1. Arbitration of Claims. Any dispute or claim relating in any way to these Terms or Customer’s use of the Service will be resolved by binding arbitration, rather than in court, except that either Customer or Peer39 may assert claims in small claims court if the claims qualify. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of these Terms as a court would. The arbitration shall be held using JAMS in New York, NY and shall be before one arbitrator, who shall be chosen from a panel of arbitrators selected by JAMS. The decision of the arbitrator shall be final and binding upon Customer and Peer39 and judgment upon such award may be entered in any court of competent jurisdiction. The costs of the arbitrators and of the arbitration shall be borne one-half by each of the parties. The costs of each party’s counsel, accountants, etc., as well as any costs solely for their benefit, shall be borne separately by each party (subject to the right of recovery of attorneys’ fees by the prevailing party pursuant to these Terms).
2. Customer Acknowledgments. Customer hereby acknowledges that these arbitration provisions constitute a waiver of Customer’s right to commence a lawsuit in any jurisdiction with respect to the matters which are required to be settled by arbitration as provided in these Terms. The foregoing arbitration provisions shall not preclude any party from seeking equitable or interim relief in a court of law and the parties agree that the courts located in New York, NY, shall be the appropriate venue for obtaining such equitable or interim relief.
1. Notices in Writing. All notices, requests, demands or other communications required or permitted under these Terms shall be in writing, which may include email transmission.
2. Means of Notice Delivery. All notice, demands and requests shall be effective upon delivery of such notice as follows:
If to Peer39, by mail at the address provided above, or by email as follows:
If to Customer, via postings on the Site or to the email address specified for the then current Administrative User as set forth in Peer39’s records. For purposes of this requirement, the Administrative User of a Customer who is an individual person shall be that individual.
3. Updates to Notice Information. It shall be the responsibility of Customer to update Peer39 regarding any changes to Customer’s notice information. Customer acknowledges that any notice provided by Peer39 to Customer in accordance with these Terms will be deemed delivered to Customer whether or not Customer actually receives such notice.
13. ADDITIONAL PROVISIONS
- GOVERNING LAW. THESE TERMS AND THE TRANSACTIONS CONTEMPLATED HEREBY, AND ALL DISPUTES BETWEEN THE PARTIES UNDER OR RELATING TO THESE TERMS, WHETHER IN CONTRACT, TORT OR OTHERWISE, WILL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY CONFLICTS OF LAW RULE OR PRINCIPLE THAT MIGHT RESULT IN THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.
- United States Government Rights. If the use of the Service is being acquired by or on behalf of the United States Government or by a U.S. Government prime contractor or subcontractor (at any tier), in accordance with 48 C.F.R. 227.7202-4 (for Department of Defense (DOD) acquisitions) and 48 C.F.R. 2.101 and 12.212 (for non-DOD acquisitions), the Government’s rights in the Service, including its rights to use, modify, reproduce, release, perform, display, or disclose the Peer39 Materials, shall be subject in all respects to the commercial license rights and restrictions provided in these Terms.
- Entire Agreement. These Terms, along with, where applicable, the terms of any other contract between Customer and Peer39 that references these Terms, constitute the entire understanding of Peer39 and Customer pertaining to the subject matter hereof, and supersede all prior written or oral and all contemporaneous oral agreements, understandings, negotiations and discussions of the parties pertaining to the subject matter hereof. For the sake of clarity, these Terms shall be interpreted to supplement and be complementary with the terms of any other contract between Customer and Peer39 for the use of Peer39 services; provided, however, if these Terms conflict with the terms of such other contracts, the other contracts shall control to the extent of such conflict, but solely with respect to the subject matter of such other contract.
- Modifications. Peer39 may modify these Terms at any time by posting such modification on the Site or by notifying Customer by email, and such revised Terms will supersede and replace all earlier versions.
- Binding Agreement. Except as otherwise provided herein, these Terms shall be binding upon, and inure to the benefit of, the parties hereto, and their respective successors and permitted assigns.
- Assignment. Peer39 may assign the Service and all of its rights and obligations under these Terms to any successor to its business pursuant to any merger, consolidation, sale of all or substantially all of Peer39’s assets or business, or similar transaction. Customer may not assign these Terms or any of its rights or obligations under these Terms, or delegate any of its duties or obligations under hem, without the prior written consent of Peer39, which consent shall be contingent upon such restrictions or requirements upon any such assignee or delegate as Peer39 may, in its sole and absolute discretion, deem necessary.
- Trade Compliance. In connection with these Terms, each party will comply with all applicable import, re-import, sanctions, anti-boycott, export, and re-export control laws and regulations, including all such laws and regulations that apply to a United States company, such as the Export Administration Regulations, the International Traffic in Arms Regulations, and economic sanctions programs implemented by the Office of Foreign Assets Control. Customer represents and warrants that Customer and Customer’s financial institutions, or any party that owns or controls Customer or Customer’s financial institutions, are not subject to sanctions or otherwise designated on any list of prohibited or restricted parties, including but not limited to the lists maintained by the United Nations Security Council, the U.S. Government (e.g., the Specially Designated Nationals List and Foreign Sanctions Evaders List of the U.S. Department of Treasury, and the Entity List of the U.S. Department of Commerce), the European Union or its Member States, or other applicable government authority.
- No Waivers. No failure or delay by a party to enforce any provision hereof or to exercise any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder. Any waiver by a party of a breach or violation of any provision of these Terms shall not be deemed a waiver of any other provision or of any subsequent breach or violation. Any waiver must be in writing by the party from whom the waiver is sought and specifically reference the provision being waived to be effective.
- Independent Contractors. Customer and Peer39 are independent contractors and these Terms will not be construed to create a partnership, joint venture, agency, or employment relationship. Neither party, nor any of their respective affiliates, is an agent of the other for any purpose or has the authority to bind the other.
- Force Majeure. In the event of any act of God, war, terrorism, mobilization, governmental regulation, strike, lockout, drought, flood, total or partial fire, technological or infrastructure attack or degradation, or other contingences or causes beyond Peer39’s reasonable control that might prevent the provision of the Service (each, a “Force Majeure Event”), performance of Peer39’s obligations may be suspended for the duration of such Force Majeure upon notice to Customer, without Peer39 being responsible to Customer for any damages or losses resulting from such suspension.
- Captions. The captions in these Terms are included for convenience of reference only and shall not affect in any way the interpretation or construction of these Terms or any provision hereof.
- Interpretation. Whenever required by the context, any pronoun used in these Terms shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns, pronouns and verbs shall include the plural and vice versa. The use of the word “including” in this Agreement shall be by way of example rather than by limitation. Reference to any agreement, document or instrument means such agreement, document or instrument as amended or otherwise modified from time to time in accordance with the terms thereof, and, if applicable, hereof. The use of the words “or,” “either” and “any” shall not be exclusive. Wherever a conflict exists between these Terms and any other agreement, these Terms shall control unless an express intent to vary or amend these Terms is expressed in such other agreement, but solely to the extent of such conflict. Any variation of these Terms must be signed by an authorized executive of Peer39 to be binding upon Peer39.
- Drafting. In the event an ambiguity or question of intent or interpretation arises, the language in all parts of these Terms shall be interpreted, in all cases, according to its fair meaning and not for or against any party hereto. Customer acknowledges and agrees that the rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of these Terms.