Last Modified: 10/06/16
PLEASE CAREFULLY READ THESE TERMS AND CONDITIONS (THESE “TERMS”) BEFORE USING THE FIELDLENS PLATFORM (AS DEFINED BELOW). THESE TERMS, INCLUDING ANY SERVICE ORDER FORMS THAT REFERENCE THESE TERMS (“ORDER FORMS”) FORM A BINDING AND EXECUTED WRITTEN AGREEMENT (THE “AGREEMENT”) BETWEEN FIELDLENS, INC. (“FIELDLENS”) AND THE ENTITY AGREEING TO THE LICENSE AGREEMENT (“USER”). THIS AGREEMENT IS EFFECTIVE AS OF THE DATE YOU CLICK THE “SIGN UP” BUTTON TO SIGN UP TO USE THE FIELDLENS PLATFORM (OR ANY SIMILAR BUTTON OR LINK AS MAY BE DESIGNATED BY FIELDLENS TO SHOW YOUR ACCEPTANCE OF THIS AGREEMENT) (SUCH DATE, THE “EFFECTIVE DATE”). If you are accepting on behalf of your employer or another entity, you represent and warrant that: (i) you have full legal authority to bind your employer, or the applicable entity, to THE AGREEMENT; (ii) you have read and understand this Agreement; and (iii) you agree, on behalf of the party that you represent, to this Agreement. ACCEPTANCE OF THIS LICENSE AGREEMENT IS REQUIRED AS A CONDITION TO PROCEEDING WITH THE DOWNLOAD, INSTALLATION, ACCESS AND USE OF THE FIELDLENS PLATFORM. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THE AGREEMENT OR If you do nOt have the legal authority to bind your employer or the applicable entity, DO NOT CLICK THE “SIGN UP” button AND DO NOT USE THE FIELDLENS PLATFORM.
USER AND FIELDLENS MAY EACH BE REFERRED TO HEREIN AS A “PARTY” IN THESE TERMS, AND ARE, COLLECTIVELY, THE “PARTIES”.
FIELDLENS RESERVES THE RIGHT, AT ITS SOLE DISCRETION, TO CHANGE, MODIFY, ADD OR DELETE PORTIONS OF THESE TERMS AT ANY TIME EXCEPT AS EXPRESSLY PROVIDED IN THE ARBITRATION PROVISION BELOW. IF WE DO THIS, WE WILL POST THE CHANGES TO THESE TERMS ON THIS PAGE AND WILL INDICATE AT THE TOP OF THIS PAGE THE DATE THESE TERMS WERE LAST REVISED. YOU SHOULD PERIODICALLY VISIT THIS PAGE TO REVIEW THE CURRENT TERMS SO YOU ARE AWARE OF ANY REVISION TO WHICH YOU ARE BOUND. YOUR CONTINUED USE OF THE FIELDLENS PLATFORM (AS DEFINED BELOW) AFTER ANY SUCH CHANGES CONSTITUTES YOUR ACCEPTANCE OF THE NEW TERMS. IF YOU DO NOT AGREE TO ABIDE BY THESE OR ANY FUTURE TERMS, DO NOT USE OR ACCESS (OR CONTINUE TO USE OR ACCESS) THE FIELDLENS PLATFORM
THESE TERMS OF SERVICE CONTAINS AN ARBITRATION AGREEMENT, WHICH WILL, WITH LIMITED EXCEPTION, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION. UNDER THE ARBITRATION AGREEMENT, (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST COMPANY ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS.
IN CONSIDERATION OF THE MUTUAL PROMISES BELOW AND OTHER GOOD AND VALUABLE CONSIDERATION THE SUFFICIENCY OF WHICH Are HEREBY ACKNOWLEDGED, THE PARTIES AGREE AS FOLLOWS:
Fieldlens offers a self-service software platform that allows users in the construction industry to collaborate, share information among employees, track progress, and manage jobsite logistics. User wishes to access, and Fieldlens is willing to provide User, access to use the Fieldlens Platform on the terms and conditions described in this Agreement.
The following terms, when used in this Agreement shall have the following meanings:
“Fieldlens Platform” means Fieldlens’ self-service collaboration and logistics software platform (in object form only), which Fieldlens makes available to User as a download-and-install application and/or service over the Internet.
“Confidential Information“ means, subject to the exceptions set forth in the following sentence, any information or data, regardless of whether it is in tangible form, disclosed by either Party (the “Disclosing Party”) that the Disclosing Party has either marked as confidential or proprietary, or has identified in writing as confidential or proprietary within thirty (30) days of disclosure to the other Party (the “Receiving Party”); provided, however, that a Disclosing Party’s business plans, strategies, technology, research and development, current and prospective customers, billing records, and products or services shall be deemed Confidential Information of the Disclosing Party even if not so marked or identified. Information will not be deemed “Confidential Information” if such information: (a) is known to the Receiving Party prior to receipt from the Disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (b) becomes known (independently of disclosure by the Disclosing Party) to the Receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (c) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the Receiving Party; or (d) is independently developed by the Receiving Party.
“User Content” means any creative or other content created, developed, submitted or otherwise made available by or on behalf of User using the Fieldlens Platform, including any contributions to any message boards, chat rooms, personal web pages or profiles, forums, bulletin boards or other interactive features offered by the Fieldlens Platform.
2. ACCESS TO FIELDLENS PLATFORM; LICENSES.
2.1 Access to Fieldlens Platform. Subject to the terms and conditions of this Agreement, Fieldlens hereby grants User a non-exclusive right to access and use the Fieldlens Platform for its internal business purposes. User shall not license, sublicense, sell, resell, lease, transfer, distribute, time share, or otherwise commercially exploit or make the Fieldlens Platform available to any third party or reverse-engineer, decompile, translate or create derivative works of the Fieldlens Platform in any manner. All ownership rights, title, and interest in and to the Fieldlens Platform, as such may be modified, upgraded, and/or enhanced from time to time (together with all intellectual property rights therein) will remain with and belong exclusively to Fieldlens. Fieldlens reserves all right, title and interest in and to the Fieldlens Platform not expressly granted to User herein.
2.2 User Responsibilities. User:
(a) shall agree to abide by all laws, rules, and regulations that are applicable to it and its use of the Fieldlens Platform and shall use the Fieldlens Platform solely for its legitimate business purposes as contemplated by this Agreement and shall not interfere with or disrupt the integrity or performance of the Fieldlens Platform or the data contained therein or attempt to gain unauthorized access to the Fieldlens Platform or its related systems or networks.
(b) Shall not include in any User Content any content that is obscene, defamatory, illegal, deceptive, gambling-related, or hateful.
Fieldlens reserves the right to discontinue any use of the Fieldlens Platform (or any components thereof) by User for any breach of this Section 2.2 or that is subject to a good faith complaint, until the complaint is resolved to Fieldlens’ reasonable satisfaction. Fieldlens reserves the right to review all User Content and to reject or suppress certain User Content, or request modifications to such User Content.
2.3 Data. As between the parties, User shall own the data it submits via the Fieldlens Platform and the data generated therefrom that is provided by Fieldlens to User (the “Data”), except that Fieldlens may: (i) copy, use, modify, distribute, display and disclose Data solely to the extent necessary to provide the Platform to User pursuant to the terms and conditions of this Agreement; (ii) copy, modify and use Data in connection with its business operations and functions, including, but not limited to, operational analytics and reporting, internal financial reporting and analysis, audit functions, and archival purposes; and (iii) copy, modify and use Data on an aggregate and de-identified basis, stripped of any personally identifiable information, for marketing purposes and internal business purposes and analytics, provided that such use or disclosure does not identify User or User’s products, services, segments, attributes, or search criteria, or consist of data solely attributable to User.
2.4 Feedback. User may from time to time provide suggestions, comments for enhancements or functionality or other feedback (“Feedback”) to Fieldlens with respect to the Fieldlens Platform. Fieldlens shall have full discretion to determine whether or not to proceed with the development of the requested enhancements, new features or functionality. User hereby grants Fieldlens a royalty-free, fully paid up, worldwide, transferable, sublicensable, irrevocable, perpetual license to (a) copy, distribute, transmit, display, perform, and create derivative works of the Feedback; and (b) use the Feedback and/or any subject matter thereof, including without limitation, the right to develop, manufacture, have manufactured, market, promote, sell, have sold, offer for sale, have offered for sale, import, have imported, rent, provide and/or lease products or services which practice or embody or are configured for use in practicing, the Feedback and/or any subject matter of the Feedback.
2.5 Access to User Content. User acknowledges and agrees that:
(a) Any individual user of the Fieldlens Platform can create a project. The creator of a project automatically becomes the “Project Organizer.” Project Organizers can invite additional companies and users to their projects. Project Organizers can also grant Project Organizer status to other users. Therefore there may be multiple Project Organizers for a single project.
(b) Any individual user of the Fieldlens Platform can create Fieldlens “items”, which will remain private to that user, unless the user adds a “CC” or “assignee” designation to the item. Item “CC’s” and “assignees” can be removed from the item which removes their ability to view any content within the item.
(c) The Administrator can, at any time, remove any account it administers from any project, which terminates the ability of the account’s individual user to create new content in such project or see any User Content added to such project.
(d) The Project Organizer can, at any time, remove any individual user from any company from a project, which terminates such user’s ability to create or view User Content for such project.
(e) The Project Organizer can, at any time, remove any company, and therefore all of the individual users at such company, from a project, which terminates all such users’ ability to create or view User Content for such project.
3. FEES; REIMBURSEMENT OF EXPENSES
3.1 Payment. In the absence of an Order Form, User shall pay to Fieldlens the fees set forth on Fieldlens’ website, www.fieldlens.com, via the Fieldlens Platform. If payment of any fees is not made after it becomes due and payable, User access to the Fieldlens Platform will be suspended.
3.2 Net of Taxes. All amounts payable by User to Fieldlens are exclusive of any sales, use and other taxes or duties, however designated, including without limitation, withholding taxes, royalties, know‑how payments, customs, privilege, excise, sales, use, value‑added and property taxes (collectively “Taxes”). User shall be solely responsible for payment of any Taxes, except for those taxes based on the income of Fieldlens. User will not withhold any Taxes from any amounts due Fieldlens.
4. OWNERSHIP AND CONFIDENTIALITY
4.1 User Ownership Rights. User hereby grants Fieldlens a royalty-free, fully paid up, worldwide, transferable, sublicensable, irrevocable, perpetual license to copy, distribute, transmit, display, perform, and create derivative works of the User Content solely to perform its obligations hereunder, including without limitation, to provide User with the Fieldlens Platform in accordance with this Agreement. Except for the rights granted hereunder, all rights, title and interests, including, but not limited to, all worldwide patent, copyright, trademark, trade secret and any other rights in and to the User Content are retained by User. Fieldlens agrees that it shall not do, or cause to be done, any acts or things contesting or in any way impairing or tending to impair any portion of the right, title and interest of User in and to such intellectual property rights..
4.2 Fieldlens Ownership Rights. Except for the rights granted hereunder, all rights, title and interests, including, but not limited to, all worldwide patent, copyright, trademark, trade secret and any other rights in and to the Fieldlens Platform and any other Fieldlens product or service are retained by Fieldlens. User agrees that it shall not do, or cause to be done, any acts or things contesting or in any way impairing or tending to impair any portion of the right, title and interest of Fieldlens or its licensors in and to such intellectual property rights.
4.3 Nondisclosure and Use Restrictions. Each Party acknowledges that the Confidential Information constitutes valuable trade secrets and proprietary information of a Party, and each Party agrees that it shall use the Confidential Information of the other Party solely in accordance with the provisions of this Agreement and it will not disclose, or permit to be disclosed, the same directly or indirectly, to any third party without the other Party’s prior written consent, except as otherwise permitted hereunder. Nothing in this Section 4.3 is intended to restrict or otherwise limit the exercise by a Party of the rights and licenses granted to it under this Agreement; provided that such Party uses reasonable measures to protect the confidentiality and value of the other Party’s Confidential Information. Notwithstanding any provision of this Agreement, either Party may disclose this Agreement, in whole or in part (a) to its employees, officers, directors, attorneys, auditors, financial advisors and/or subcontractors who have a need to know and are legally bound to keep such information confidential by confidentiality obligations consistent with those of this Agreement; and (b) as reasonably deemed by a Party to be required by law (in which case each Party shall provide the other with prior written notification thereof, shall provide such Party with the opportunity to contest such disclosure, and shall use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law). Each Party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. In the event of actual or threatened breach of the provisions of this Section 4.3, the non-breaching Party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each Party shall promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement. Upon the termination of this Agreement, each receiving Party agrees to promptly return to disclosing Party or destroy all Confidential Information of the disclosing Party that is in the possession of receiving Party and to certify the return or destruction of all such Confidential Information and embodiments.
5. REPRESENTATIONS, WARRANTIES AND EXCLUSIONS
5.1 Representations and Warranties of Each Party. Each Party represents and warrants to the other Party that (a) such Party has the required power and authority to enter into this Agreement and to perform its obligations hereunder; (b) the execution of this Agreement and performance of its obligations thereunder do not and will not violate any other agreement to which it is a party; and (c) this Agreement constitutes a legal, valid and binding obligation when signed by both Parties.
5.2 Representations and Warranties of User. User further represents and warrants that User has the full legal authority to grant the rights in and to the User Content granted in this Agreement.
5.3 Exclusions. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE FIELDLENS PLATFORM IS PROVIDED ON AN “AS-IS” BASIS AND FIELDLENS DISCLAIMS ANY AND ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. USER acknowledges that Fieldlens does not warrant that the Fieldlens PLATFORM will be provided in an uninterrupted or error free fashion at all times.
6.1 Infringement Defense. In the event of a claim against User of the infringement or misappropriation of a third party copyright, United States patent, trade secret or trademark by reason of the use of the Fieldlens Platform (excluding any User Content incorporated therein) by User as permitted hereunder, Fieldlens shall, at its expense, defend such claim, and pay damages actually awarded or paid in connection therewith, including the reasonable fees and expenses of the attorneys engaged by Fieldlens for such defense, provided that (i) User shall promptly notify Fieldlens of such claim, (ii) Fieldlens shall have the sole and exclusive authority to defend and/or settle any such claim and (iii) User reasonably cooperates with Fieldlens in connection therewith.
6.2 Actions in Response to Potential Infringement. If the use of the Fieldlens Platform by User has become, or in Fieldlens’ opinion is likely to become, the subject of any claim of infringement, Fieldlens may at its option and expense (a) procure for User the right to continue using the Fieldlens Platform as set forth hereunder; (b) replace or modify the Fieldlens Platform to make it non-infringing so long as the Fieldlens Platform has at least equivalent functionality; (c) substitute an equivalent for the Fieldlens Platform or (d) if options (a)-(c) are not reasonably practicable, terminate this Agreement.
6.3 Limitation on Infringement Indemnification. Fieldlens shall have no liability or obligation under Sections 6.1 and 6.2 with respect to any claim if such claim is caused in whole or in part by (a) compliance with designs, guidelines, plans, User Content or specifications provided by User; (b) modification of the Fieldlens Platform by any party other than Fieldlens without Fieldlens’ express consent; or (c) the combination, operation or use of the Fieldlens Platform with other applications, portions of applications, product(s), data or services where the Fieldlens Platform would not by itself be infringing. THIS SECTION 6 STATES FIELDLENS’ ENTIRE AND EXCLUSIVE LIABILITY AND OBLIGATION, AND USER’S EXCLUSIVE REMEDY (AT LAW OR IN EQUITY), WHETHER STATUTORY, CONTRACTUAL, EXPRESS, IMPLIED OR OTHERWISE, FOR ANY CLAIM OF ANY NATURE RELATED TO INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY.
6.4 Indemnification by User. User shall indemnify, defend and hold harmless Fieldlens against any and all claims, damages, losses, liabilities, costs and expenses (including reasonable attorney’s fees) directly or indirectly brought against Fieldlens by any third party arising from (a) the use of the Fieldlens Platform in violation of the terms of this Agreement, (b) the exercise of any rights granted by User to Fieldlens in or to the User Content in accordance with this Agreement, or (c) any of the circumstances described in Section 6.3; provided that: (i) Fieldlens shall promptly notify User of such claim, (ii) User shall have the sole and exclusive authority to defend and/or settle any such claim and (iii) Fieldlens reasonably cooperates with User in connection therewith.
7. LIMITATION OF LIABILITY
7.1 LIMITATIONS ON REMEDY. EXCEPT FOR LIABILITY ARISING FROM A BREACH BY USER OF SECTION 2, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST DATA, OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES, EVEN IF A REPRESENTATIVE OF A PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR LIABILITY ARISING FROM A BREACH OF BY USER OF SECTION 2 OR A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 6, HEREOF, NEITHER PARTY SHALL BE LIABLE FOR ANY DIRECT DAMAGES, COSTS, OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID OR PROPERLY PAYABLE BY USER DURING THE TWELVE MONTHS PRECEDING THE INCIDENT OR CLAIM. EXCEPT FOR BREACHES BY A USER OF SECTION 2, MONETARY DAMAGES, AS LIMITED BY THIS SECTION 7, WILL BE EACH PARTY’S SOLE AND EXCLUSIVE ALTERNATIVE REMEDY (AT LAW OR IN EQUITY) IN THE EVENT THAT ANY EXCLUSIVE REMEDY HEREUNDER IS FOUND TO FAIL ITS ESSENTIAL PURPOSE. THE PROVISIONS OF THIS SECTION 7 ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.
8. APPLE-ENABLED SOFTWARE APPLICATIONS
Fieldlens offers Software applications that are intended to be operated in connection with products made commercially available by Apple Inc. (“Apple”), among other platforms. With respect to Software that is made available for User in connection with an Apple-branded product (such Software, “Apple-Enabled Software”), in addition to the other terms and conditions set forth in this Agreement, the following terms and conditions apply:
• Fieldlens and User acknowledge that this Agreement is concluded between Fieldlens and User only, and not with Apple, and that as between Fieldlens and Apple, Fieldlens, not Apple, is solely responsible for the Apple-Enabled Software and the content thereof.
• User may not use the Apple-Enabled Software in any manner that is in violation of or inconsistent with the Usage Rules set forth for Apple-Enabled Software in, or otherwise be in conflict with, the App Store Terms of Service.
• User’s license to use the Apple-Enabled Software is limited to a non-transferable license to use the Apple-Enabled Software on an iOS Product that User owns or controls, as permitted by the Usage Rules set forth in the App Store Terms of Service.
• Apple has no obligation whatsoever to provide any maintenance or support services with respect to the Apple-Enabled Software.
• Apple is not responsible for any product warranties, whether express or implied by law. In the event of any failure of the Apple-Enabled Software to conform to any applicable warranty, User may notify Apple, and Apple will refund the purchase price for the Apple-Enabled Software to User, if any; and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Enabled Software, or any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty, which will be Fieldlens’s sole responsibility, to the extent it cannot be disclaimed under applicable law.
• Fieldlens and User acknowledge that Fieldlens, not Apple, is responsible for addressing any claims of User or any third party relating to the Apple-Enabled Software or User’s possession and/or use of that Apple-Enabled Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple-Enabled Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
• In the event of any third party claim that the Apple-Enabled Software or the end-user’s possession and use of that Apple-Enabled Software infringes that third party’s intellectual property rights, as between Fieldlens and Apple, Fieldlens, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
• User represents and warrants that (i) User is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) User is not listed on any U.S. Government list of prohibited or restricted parties.
Any questions, complaints or claims with respect to the Apple-Enabled Software should be directed to Fieldlens as follows:
30 West 21st Street
New York, NY
9. TERM, TERMINATION
9.1 Term. This Agreement will commence as of the Effective Date, and unless earlier terminated in accordance with this Agreement, will remain in effect until one (1) year from the Effective Date (the “Initial Term”). Thereafter, the term of this Agreement may be automatically extended for successive renewal periods of one year unless earlier terminated in accordance with this Agreement (each, a “Renewal Term” and, together with the Initial Term, the “Term”). Either Party may terminate this Agreement as of the end of the Initial Term or any Renewal Term by written notice to the other Party given not later than sixty (60) days prior to the end of the relevant Term.
9.2 Termination. Either party may terminate this Agreement if the other party commits a material breach that is not cured within 30 days of written notice requiring remedy or, if the breach is the non-payment of money, that is not cured within 10 days of written notice.
9.3 Obligations on Termination. Upon termination or expiration of the Term or other termination of this Agreement all rights granted hereunder and all obligations of Fieldlens to provide the Fieldlens Platform shall immediately terminate. Termination of this Agreement or expiration of the Term shall not relieve User from paying all fees accruing prior to termination. Sections 1, 2.3, 2.4, 2.5, 4-10 shall survive the termination or expiration of this Agreement or the Term for any reason whatsoever.
9.4 Force Majeure. No Party hereto shall have any liability under this Agreement for such Party’s failure or delay in performing any of the obligations imposed by this Agreement to the extent such failure or delay is the result of any of the following events (each, a “Force Majeure Event”): (i) any fire, explosion, unusually severe weather, natural disaster or Act of God; (ii) epidemic; any nuclear, biological, chemical, or similar attack; any other public health or safety emergency; any act of terrorism; and any action reasonably taken in response to any of the foregoing; (iii) any act of declared or undeclared war or of a public enemy, or any riot or insurrection; (iv) damage to machinery or equipment; any disruption in transportation, communications, electric power or other utilities, or other vital infrastructure; or any means of disrupting or damaging internet or other computer networks or facilities; (v) any strike, lockout or other labor dispute or action; (vi) any action taken in response to any of the foregoing events by any civil or military authority; or (vii) any other event beyond such Party’s control; provided that financial inability in and of itself shall not be a Force Majeure Event.
10. DISPUTE RESOLUTION BY BINDING ARBITRATION AND CLASS ACTION WAIVER
PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS
Most customer concerns can be resolved quickly and to the customer’s satisfaction by calling our Customer Service Department at 646-647-2300. You can also email us at email@example.com.
However, if Fieldlens is not able to resolve a dispute with you after attempting to do so informally, then as a condition to your use of the Service we mutually agree to resolve such dispute through binding arbitration under the auspices of JAMS Alternative Dispute Resolution (“JAMS”). You and Fieldlens mutually agree to arbitrate all unresolved disputes and claims between us. This agreement to arbitrate is intended to be broadly interpreted.
JAMS will administer any such arbitration under its Comprehensive Arbitration Rules & Procedures and Consumer Minimum Standards. The arbitration will be held in the United States county where you live or work, New York (NY), or any other location as to which we may then mutually agree. A party seeking arbitration must first send to the other, by certified mail, a written notice of dispute.
Any notice to Fieldlens should be addressed to 30 West 21st Street, 2nd Floor, New York, NY 10010. Any notice to you shall be sent to your address as set forth in Fieldlens’s records of account or such other legal address as Fieldlens is able to identify. You agree that, by entering into this Agreement, you and Fieldlens are each waiving the right to a trial by jury or to participate in a class action. You may only resolve disputes with us or participating attorneys on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations aren’t allowed.
In any arbitration initiated by you against Fieldlens, the maximum amount you will be required to pay is $250. Fieldlens will bear the other costs associated with arbitration, such as any JAMS Case management fees and professional service fees for the arbitrator’s services. Should Fieldlens initiate any arbitration against you, Fieldlens will bear all costs of the arbitration. We also mutually agree that should you prevail, you may seek attorneys’ fees and costs from Fieldlens. Should Fieldlens prevail, it will not seek attorneys’ fees and costs from you. All remedies available to you in a court of law will also be available to you in arbitration.
Notwithstanding our agreement to arbitrate our disputes as provided above, the following exceptions will apply to the resolution of disputes between us:
• Either you or Fieldlens may assert claims, if they qualify, in small claims court in New York, New York or in any United States county where you live or work without first engaging in arbitration or the informal dispute-resolution process described above.
• Fieldlens may bring a lawsuit against you in any court of competent jurisdiction solely for injunctive relief to stop any unauthorized use or abuse of the Fieldlens Platform without first engaging in arbitration or the informal dispute-resolution process described above.
• Fieldlens may bring a lawsuit against you in any court of competent jurisdiction solely for injunctive relief to stop any intellectual property infringement without first engaging in arbitration or the informal dispute-resolution process described above.
• In the event that the agreement to arbitrate provided herein is found to be inapplicable or unenforceable for any reason, then as a condition to your use of the Fieldlens Platform we agree that any resulting judicial proceedings will be brought in the federal or state courts of New York, New York, and by your use of the Fieldlens Platform you expressly consent to venue and personal jurisdiction of the courts therein.
Fieldlens may, in the future, make changes to these provisions regarding dispute resolution and arbitration by providing notice in accordance with these Terms. You may reject any changes made during your use of the Service by sending us written notice. Such notice must be given within thirty (30) calendar days of the notice of modification to the following address.
11.1 Publicity. Neither Party will make any separate public announcement regarding this Agreement or any of the contents contained herein without the prior written consent of the other Party, which will not be unreasonably withheld. Notwithstanding the foregoing, during the Term, Fieldlens may (i) issue mutually agreed upon press releases announcing and/or describing the relationship between Fieldlens and User; provided that Fieldlens gives User a reasonable opportunity to review and comment on the proposed disclosure prior to its public release, (ii) use User’s name and marks in any general listing of customers of Fieldlens in marketing and promotional materials, including on the Fieldlens website, (iii) use User’s name in connection with proposals to third parties, and (iv) otherwise refer to User in print or electronic form for marketing, reference and other business purposes.
11.2 No Assignment. Neither Party may assign this Agreement, or sublicense any of the rights granted herein, in whole or in part, without the prior written consent of the non-assigning Party, which consent may be withheld at the sole discretion of the non-assigning Party. Notwithstanding the foregoing, either Party may assign this Agreement without such consent to any person or entity controlling, controlled by, or controlled in conjunction with such Party or that acquires all or substantially all of the assets and business of the assigning Party to which this Agreement relates by merger or purchase, provided that such person or entity assumes in writing all of the terms and conditions of this Agreement. Any attempt by either Party to assign or transfer any of the rights, duties or obligations of this Agreement in violation of the foregoing shall be null and void.
11.3 Amendment; Waiver. This Agreement may not be amended or modified, in whole or part, except by a writing signed by a duly authorized representative of both Parties. No provision or part of this Agreement or remedy hereunder may be waived except by a writing signed by a duly authorized representative of the Party making the waiver. Failure or delay by either Party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
11.4 Relationship. Nothing in this Agreement shall be construed to place the Parties hereto in an agency, employment, franchise, joint venture, or partnership relationship. Neither Party will have the authority to obligate or bind the other in any manner, and nothing herein contained shall give rise or is intended to give rise to any rights of any kind to any third parties. Neither Party will represent to the contrary, either expressly, implicitly or otherwise.
11.5 Severability. In the event that any provision of this Agreement is found to be unenforceable, such provision will be reformed only to the extent necessary to make it enforceable, and such provision as so reformed will continue in effect, to the extent consistent with the intent of the Parties as of the Effective Date. If any provision or part of this Agreement will, to any extent, be or become invalid, illegal or unenforceable, the remainder of this Agreement will continue in effect, and every other provision of this Agreement will remain valid and enforceable to the full extent permitted by applicable law. In such event, the invalid or unenforceable provision shall be reformed only to the extent necessary to make it enforceable, and such provision as so reformed will continue in effect, to the extent consistent with the intent of the Parties as of the Effective Date.
11.6 Governing Law, Jurisdiction. All disputes, claims or controversies arising out of this Agreement, or the negotiation, validity or performance of this Agreement, or the transactions contemplated hereby shall be governed by and construed in accordance with the laws of the State of New York without regard to its rules of conflict of laws. Each of the Parties hereto hereby irrevocably and unconditionally consents to submit to the sole and exclusive jurisdiction of the courts of the State of New York and of the United States of America located in New York, New York (the “New York Courts”) for any litigation among the Parties hereto arising out of or relating to this Agreement, or the negotiation, validity or performance of this Agreement, waives any objection to the laying of venue of any such litigation in the New York Courts and agrees not to plead or claim in any New York Court that such litigation brought therein has been brought in any inconvenient forum or that there are indispensable parties to such litigation that are not subject to the jurisdiction of the New York Courts.
11.7 Notices. All notices under or related to this Agreement will be in writing and will reference this Agreement. Notices will be deemed given when: (i) delivered personally; (ii) sent by confirmed telecopy or other electronic means; (iii) three (3) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) one (1) day after deposit with a commercial overnight carrier, with written verification of receipt. All communications will be sent to the addresses set forth on the Cover Page or such other addresses designated pursuant to this Section
11.8 Entire Agreement. This Agreement constitutes the entire agreement between the Parties. It supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter, and prevails over any conflicting terms or conditions contained on printed forms submitted with purchase orders, sales acknowledgments or quotations. This Agreement may not be modified or waived, in whole or part, except in writing and signed by an officer or duly authorized representative of both Parties.