This agreement (this “Agreement”) sets forth the terms and conditions between The Activate Company, LLC (the “Company”) and users (“you” or “your”) and governs your use of the Company’s website (the “Site”) and of the services made available through the Site (the “Services”).
BY ENTERING, ACCESSING, BROWSING, SUBMITTING INFORMATION TO, OR OTHERWISE USING THE SITE AND SERVICES, YOU ACKNOWLEDGE AND AGREE TO THE FOLLOWING TERMS AND CONDITIONS.
The Company reserves the right to modify or supplement any or all of the terms of this Agreement from time to time without notice to you. The Company reserves the right, in its sole discretion, to restrict, change suspend or terminate access to all or any part or aspect of the Site or Services, including the availability of any feature, database, information, or content, at any time and without prior notice or liability. Continued use of the Site or Services following posting of any changes to the terms of the Agreement constitutes your acceptance of the changes. If you do not agree with the terms and conditions of this Agreement at any time, you are required to cease use of the Site and Services. The Company encourages you to print a copy of this Agreement for your records.
The Company’s privacy statement (“Privacy Statement”) describes how the Company may use your personal information. Your acceptance of this Agreement constitutes your acceptance of the Privacy Statement, which is incorporated herein by this reference. If you object to your personal information being used as described in the Privacy Statement please do not use the Services or access this Site.
1. YOUR LIMITED RIGHT TO USE THE SITE AND SERVICES
The Company hereby grants you a limited right and license to access the Site and Services and use the Contributed Content (defined below), subject to the terms and conditions of this Agreement. The Company reserves the right to revoke this right and license at any time without or without cause.
2. TERMINATION
You may terminate this Agreement, with or without cause and at any time, by discontinuing your use of the Site and Services and payment of fees due the Company, if any. The Company may, without notice, suspend your access to the Site or Services or terminate this Agreement for any of the following reasons: (a) your failure to comply with any provisions of this Agreement; (b) your unauthorized or unlawful use of the Site or Services; or (c) inactivity on your account for an extended period of time. Notwithstanding the forgoing, the Company reserves the right, in its sole discretion, to restrict, suspend or terminate access to all or any part or aspect of the Site or Services, at any time and without prior notice or liability. Upon termination of this Agreement for any reason, the Company shall have no continuing obligation to you.
3.ACCOUNTS
To use portions of the Site or Services, you must be registered and provide account information, including personal data such as name, phone number, and address. You agree to provide and maintain account information that is true, accurate, complete, current, and not misleading. You will be required to select a username and password for your account. You are solely responsible for maintaining the confidentiality of your password. You agree to immediately notify the Company if you know or suspect that your account is being accessed or used without authorization. Notwithstanding the foregoing sentence, you are fully responsible for all activity on your account, including, but not limited to, use of your account by any third party. The Company reserves the right, in its sole discretion, to deny access to, or temporarily or permanently suspend your account at any time and for any reason or no reason.
By registering for an account or using the Site or Services, you represent that you are at least 18 years of age, and of the age of legal majority in your state or country of residence if older than 18. If you registered your company for an account, you represent that you have written or other sufficient corporate authority to form binding contracts under applicable law on behalf of your company each time that you use the Site or Services.
4. CONTRIBUTED CONTENT
In connection with your use of this Site and Services, you may have occasion to upload or otherwise contribute data, comments, writings, communications, images, or other types of content (collectively, “Contributed Content”) to Site.
You grant to the Company and its affiliates a perpetual, worldwide, irrevocable, unrestricted, non-exclusive, royalty-free license to use, copy, license, sublicense, adapt, distribute, display, publicly perform, reproduce, transmit, modify, edit and otherwise exploit any Contributed Content that you post on or through the Site or Services, and any ideas or original materials contained in such communications, in all media now known or hereafter developed. You waive all rights you may have to inspect and/or approve of any use by the Company or other users of the Site or Services of any Contributed Content. The Company will not pay you for your Contributed Content or to exercise any rights related to your Contributed Content set forth in the preceding sentence. The Company may remove or modify your Contributed Content at any time without notice to you.
The Company has the right, but not the obligation, to monitor, edit, modify, refuse to post, or remove any Contributed Content from the Services, in the Company’s sole discretion. Notwithstanding this right, you acknowledge that the Company is not responsible for the content of any Contributed Content.
You agree not to upload, post or otherwise make available on the Site or Services any material protected by copyright, trademark or other proprietary right without the express permission of the owner of the copyright, trademark or other proprietary right. You agree and acknowledge that you have the burden of determining whether any material is or is not protected by copyright. By submitting Contributed Content, you permit other users of the Site or Services to access, view, store or reproduce the Contributed Content for that user’s personal use or any other use permitted identified in this Agreement or on the Site or Services.
5. RESTRICTED USE
You are prohibited from violating or attempting to violate the security of the Site or Services, or otherwise abusing the Site or Services. The framing, mirroring, scraping or data-mining of the Site or Services any of their content in any form and by any method is strictly prohibited. You may not access the Site or Services through spiders, robots or any other software programs or electronic means that perform multiple, automated, successive queries. You may not use any collaborative browsing or display technologies in connection with your use of the Site or Services. You agree not to use the Site or Services for any illegal purpose, in violation of any law or regulation, or in any manner inconsistent with this Agreement. You agree not to input, distribute, upload, post, transmit or otherwise make available any content or data through the Site, Services, or Contributed Content that: (i) is confidential; (ii) is unlawful, improper, abusive, harassing, libelous, defamatory, obscene, pornographic, threatening or otherwise objectionable; (iii) you are not authorized or have the right to make available; (iv) violates the rights of others, such as content that infringes any patent, trademark, trade secret, copyright, other proprietary rights or violates any right of privacy or publicity; (v) violates the property rights of others; (vi) offends the community standards of users of the Services; (vii) contains software viruses or any other computer code, files or programs designed to work around any technical limitations in the Site or Services or perform or that would interfere with the proper working of the Site or Services; or (viii) otherwise violates any applicable law. Violations of this Section may result in civil or criminal liability.
6. THIRD PARTY WEBSITES
As you use the Site and Services, you may encounter windows and links that take you to web pages or websites of other companies to make their products and services available to you or to enable you to communicate directly with those companies. Your use of such web pages or websites, while subject to the terms of this Agreement, is also subject to and governed by the terms and guidelines, if any, contained within such web page or website. The Company does not endorse, and takes no responsibility for such products, services, websites, and materials. The Company is not responsible for and has no liability for the privacy or other practices of any such third party. The Company recommends that you review the privacy policies of each website you visit.
7. NO RESPONSIBILITY FOR TRANSMITTED MATERIAL
The communications between you and the Company use electronic means, whether you use the Site or Services or send the Company emails, or whether the Company posts notices on the website or communicates with you via email. For contractual purposes, you (i) consent to receive communications from the Company in an electronic form, and (ii) agree that all terms and conditions, agreements, notices, disclosures, and other communications that the Company provides to you electronically satisfy any legal requirement that such communications would satisfy if it were be in a hardcopy writing. Although email is generally reliable, email can be transmitted improperly or wrongfully intercepted. The Company does not warrant or guarantee that the transmission of email messages will be uninterrupted or transmitted without error. You acknowledge that transmissions to and from the Site or in connection with the Services may not be secure or confidential and your communications may be read or intercepted by others. You acknowledge that by submitting communications to or through the Site or Services, no confidential, fiduciary, contractually implied or other relationship is created between you and Company, or any other third party.
8. MOBILE SERVICES
When you access the Site or Services through a mobile device, your wireless service carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing, or using certain mobile services may be prohibited or restricted by your carrier, and not all mobile services may work with all carriers or devices. You acknowledge and agree that your use of the Site or Services must be in accordance with the usage rules established by your mobile device platform or service provider.
9. THE SITE, SERVICES, OR CONTRIBUTED CONTENT MAY NOT BE AVAILABLE FOR USE OUTSIDE OF THE UNITED STATES
The Company makes no representation that the Site, Services, or Contributed Content are appropriate or available for use in locations outside the United States. Access to the Site or Services from countries or territories where such access is illegal is prohibited. Those who choose to access the Site or Services outside the United States do so on their own initiative and risk and are responsible for compliance with the laws of the United States. You specifically agree to comply with all applicable laws concerning the transmission of technical data exported from the United States or the country you reside in.
The Site, Services, or Contributed Content may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from the Company, or any products utilizing such data, in violation of the United States export laws or regulations.
10. AGGREGATED DATA
The Company reserves the right to develop and commercialize benchmarks and measures based on Aggregated Data. “Aggregated Data” shall mean data submitted by or on behalf of you to the Site or Services that is (i) anonymized, and not identifiable to any person or entity, (ii) combined with the data of other users or additional data sources, and (iii) presented in a manner from which your identity may not be derived.
11. THE COMPANY INTELLECTUAL PROPERTY
This Site and Services utilized certain proprietary property owned by the Company, including: (i) the Company name and logo, the product and service names associated with the software programs, Site and Services, and other trademarks and service marks of the Company, whether or not registered; (ii) certain audio and visual information, documents, documentation, software and other works of authorship, and derivative works thereof; (iii) the Aggregated Data; and (iv) other technology, software, processes, algorithms, user interfaces, know-how and trade secrets, copyrights, techniques, designs, inventions, discoveries, concepts, improvements, and other tangible and intangible technical material or information created by the Company, its employees, agents or licensors (collectively, “Activate Technology”). Other than as expressly set forth in this Agreement, no license or other rights in or to the Activate Technology are granted to you or any other party, and all such licenses and rights are hereby expressly reserved by the Company. No portion of the Activate Technology may be sold or otherwise used or distributed in conjunction with any commercial purpose, unless expressly permitted in writing by the Company.
The Activate Company, Activate Machines, Activate Inspections, and Activate Customers are trademarks of the Company, and the Company’s logo is a United States service mark. All other trademarks, service marks, trade names and logos appearing on the Site are the property of their respective owners.
12. FEEDBACK
All comments, feedback, suggestions, ideas, and other submissions disclosed, submitted or offered by you related to the Services or the Site shall be owned by the Company and by such disclosure, submittal or offer you assign all rights therein to the Company.
13. WARRANTY DISCLAIMERS
YOU AGREE THAT YOUR USE OF THE SITE AND SERVICES IS AT YOUR SOLE RISK. BECAUSE OF THE NUMBER OF POSSIBLE SOURCES OF INFORMATION AVAILABLE THROUGH THE SITE AND SERVICES, AND THE INHERENT HAZARDS AND UNCERTAINTIES OF ELECTRONIC DISTRIBUTION, THERE MAY BE DELAYS, OMISSIONS, INACCURACIES OR OTHER PROBLEMS WITH SUCH INFORMATION.
THE SITE AND SERVICES ARE PROVIDED TO YOU “AS IS, AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND. THE COMPANY DOES NOT WARRANT AND DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF ACCURACY, TIMELINESS, COMPLETENESS, CURRENTNESS, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE SERVICES, CONTRIBUTED CONTENT, OTHER CONTENT OR ANY OTHER INFORMATION AVAILABLE THROUGH THE SITE. NOR DOES THE COMPANY GUARANTEE THAT THE SITE WILL BE ERROR-FREE OR CONTINUOUSLY AVAILABLE OR THAT THE SITE OR THE SERVER THAT MAKES IT AVAILABLE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE COMPANY DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICES OR IN THIRD-PARTY SITES OR YOUR RELIANCE THEREUPON IN TERMS OF THEIR CORRECTNESS, ACCURACY, TIMELINESS, RELIABILITY OR OTHERWISE.
14. LIMITATION ON LIABILITY
IF YOU BECOME DISSATISFIED WITH THE SITE OR SERVICES, OR THE TERMS GOVERNING THE SITE OR SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SITE AND SERVICES. THIS LIMITATION ON DAMAGES IS ESSENTIAL TO THIS AGREEMENT AND THE SITE AND SERVICES WOULD NOT BE PROVIDED AT THIS RATE WITHOUT SUCH LIMITATION.
IN NO EVENT SHALL THE COMPANY OR ITS AFFILIATES, AND EACH OF THEIR RESPECTIVE MANAGERS, MEMBERS, DIRECTORS, OFFICERS, EMPLOYEES CONTRACTORS, AGENTS, SUCCESSORS, AND/OR ASSIGNS, BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL OR OTHER INDIRECT DAMAGES OR FOR ANY LOST PROFITS OR REVENUES OR LOST DATA, HOWEVER CAUSED, ARISING FROM OR RELATED TO THE SITE, SERVICES, CONTRIBUTED CONTENT, OTHER CONTENT, OR THIS AGREEMENT, REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH LIABILITY IS ASSERTED OR IF THE COMPANY HAD BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LIABILITY, LOSS OR DAMAGE OR WHETHER SUCH LIABILITY, LOSS OR DAMAGE WAS FORESEEABLE. IN NO EVENT SHALL THE COMPANY’S, OR ITS AFFILIATES’, AND EACH OF THEIR RESPECTIVE MANAGERS’, MEMBERS’, DIRECTORS’, OFFICERS’, EMPLOYEES’, CONTRACTORS’, AGENTS’, SUCCESSORS’, AND/OR ASSIGNS’, TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT, INCLUDING BUT NOT LIMITED TO, NEGLIGENCE) EXCEED THE AMOUNT PAID BY YOU TO THE COMPANY, IF ANY, FOR ACCESSING OR USING THE SITE AND SERVICES.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, OR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO PORTIONS OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. IN SUCH STATES, THE LIABILITY OF THE COMPANY OR ITS AFFILIATES, AND EACH OF THEIR RESPECTIVE MANAGERS, MEMBERS, DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AND AGENTS, SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF THE COMPANY OR ITS AFFILIATES, AND EACH OF THEIR RESPECTIVE MANAGERS, MEMBERS, DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS, SUCCESSORS, AND/OR ASSIGNS, EXCEED $50. YOU ACKNOWLEDGE AND AGREE THAT THE SERVICES WOULD NOT BE PROVIDED WITHOUT THE DISCLAIMERS AND LIMITATIONS SET FORTH IN THIS AGREEMENT AND THAT THE DISCLAIMERS AND LIMITATION AND REMEDIES ARE REASONABLE.
15. RELEASE
You hereby release the Company and its affiliates, and each of their respective managers, members, directors, officers, employees, contractors, agents, successors, and/or assigns, from claims and all liabilities of every kind, known and unknown, arising from disputes between you and other users, authorized dealers, buyers or other third parties arising from or related to the Site or Services or any Contributed Content. By entering into this Agreement, you hereby waive any statutory or other type of protections that would otherwise limit this release to covering only known or suspected claims at the time of this release. If you are a California resident, you waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
16. INDEMNIFICATION
You agree to indemnify, defend and hold the Company and its affiliates, and each of their respective managers, members, directors, officers, employees, contractors, agents, successors, and/or assigns, harmless from and against any and all claims, losses, damages, liabilities, judgments and fees and expenses related thereto (including, without limitation, reasonable attorneys’ fees) arising out of, based upon or resulting from (i) your use of the Site or Services, (ii) breach of this Agreement by you, (iii) your dispute with another user; (iv) your violation of any applicable law, (v) your infringement of the rights of any third party, or (iv) your Contributed Content or your use of any other user’s Contributed Content. The Company reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and you shall not in any event settle or otherwise dispose of any matter without the Company’s prior written consent.
17. NOTICE AND PROCEDURE FOR NOTIFYING DESIGNATED AGENT OF CLAIMS OF COPYRIGHT INFRINGEMENT
If you believe that your work has been copied and used in the Site or Services in a way that constitutes copyright infringement, please provide the Company’s designated Copyright Agent with the following information:
Only notices under that Digital Millennium Copyright Act (17 U.S.C. § 512, et seq.) should be submitted to the Copyright Agent. The Company cannot take any action with respect to any take down request unless the notice includes all of the information requested.
18. FORCE MAJEURE
The Company shall not be responsible for any failure to provide the Site or Services or delay in performing any of its obligations under this Agreement where and to the extent that such failure or delay results from an unforeseeable event beyond the Company’s reasonable control, including but not limited to, acts of war; acts of nature; earthquake; flood; embargo; riot; sabotage; labor shortage or dispute; changes in government codes, ordinances, laws, rules, regulations or restrictions; failure of the Internet; terrorist acts; failure of data, products or services controlled by any third party, including the providers of communications or network services; or utility power failure.
19. GENERAL TERMS
This Agreement shall not be construed as creating any agency, partnership or joint venture between you and the Company.
This Agreement, all intellectual property issues, and your rights and obligations are governed by the laws of the United States of America and the State of Arizona, without regarding conflicts of law provisions, and the application of the United Nations Convention of Contracts for the International Sales of Goods is expressly excluded. If you are accessing the Services from a physical location outside of the United States with laws or regulations governing personal data collection, use, and disclosure that are different from United States laws, you agree that by accessing the Services you are transferring your personal information to the United States and you consent to the application of the laws of the United States and the State of Arizona with respect to use of the Services and any dispute regarding the Services or this Agreement. You agree that any action to enforce these terms and conditions or in any manner related to the Company will be brought exclusively in the federal or state courts located in Maricopa County, Arizona and you agree to submit to the jurisdiction of such courts. You and the Company hereby expressly waive any rights to contest the jurisdiction, venue or convenience of any such federal or state court located in Maricopa County, Arizona. The prevailing party in any litigation shall be entitled to recover from the other party its reasonable attorneys’ fees (as determined by a court and not a jury) and related costs and expenses incurred as a result of the litigation in addition to such other relief as may be granted.
This Agreement and the Privacy Statement constitute the entire agreement between you and the Company with respect to the Services or use of the Site. If any inconsistency exists between the terms of this Agreement and any additional terms and conditions posted on the Site, the terms will be interpreted as to eliminate any inconsistency, if possible, and otherwise, the additional terms and conditions will control. The provisions of this Agreement will be deemed severable and the invalidity or unenforceability of any provision will not affect the validity or enforceability of the other provision hereof. Any provision determined to be invalid or unenforceable will be modified, to the extent possible, to be valid and enforceable so as to retain the intent of the parties. The failure by either party to exercise or enforce any rights or provisions of this Agreement shall not constitute a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. The parties agree that the confidentiality and indemnification provisions, and all such similar terms which, by their substantive intent are intended to survive termination of this Agreement, shall survive the termination of this Agreement.
You shall not assign or transfer, or purport to assign or transfer, any of your rights or obligations under this Agreement without the prior written consent of the Company. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of the successors and permitted assigns of the respective parties hereto.
Except as otherwise provided in this Agreement, all notices to the Company shall be sent by email to brian@theactivatecompany.com, or by first class mail, postage prepaid to 150 North Michigan Avenue, Suite 2800, Chicago, Illinois 60601. Any notices sent by the Company to you shall be sent to the email address or street address listed in your account information. Notice shall be deemed given twenty-four (24) hours after an electronic message is sent, unless the sending party is notified that the message did not reach the recipient or three (3) days after the date of mailing.
In the event this Agreement is translated into another language, and any inconsistency or discrepancy in meaning or interpretation results therefrom, the English language version shall prevail and control.
Update: December 2018