Certify Subscription Service Agreement
PLEASE READ THIS SUBSCRIPTION SERVICE AGREEMENT (THE "AGREEMENT") CAREFULLY BEFORE USING THE CERTIFY, INC. SOFTWARE PROVIDED PURSUANT TO THIS AGREEMENT. BY CLICKING ON "SUBMIT", AND/OR BY ACCESSING THE SOFTWARE VIA THE ON-LINE SERVICE PROVIDED BY CERTIFY, INC. YOU ARE AGREEING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.
Certify, Inc. ("Certify") has developed certain technology, including a web-based software product called CertifyTM, to provide a service for expense tracking and management via the Internet. You or the company on whose behalf You are entering into this Agreement desire to subscribe to the Certify Service (defined below) and Certify desires to provide access to the Certify Service to You on the terms and conditions set forth herein.
If You are entering into this Agreement on Your own behalf, then the term "You" and "Your" means the individual entering into this Agreement and such individual is personally bound by all of the terms and conditions of this Agreement. If You are entering into this Agreement on behalf of a company, You represent and warrant that You are a representative or agent of such company and that You have the authority to bind such company to the terms and conditions of this Agreement. If You are entering into this Agreement on behalf of a company, the term "You" and "Your" means such company and all of its directors, managers, officers, employees and agents.
Certify is willing to provide access to the Certify Service and related Documentation (defined below) to You only on the condition that You accept all of the terms and conditions set forth in this Agreement. By clicking on the "Submit" button below and/or accessing the Certify Service or any part of the Certify System (defined below), You acknowledge that you have read this Agreement, understand it, and agree to be bound by it. If You do not agree to any of the terms or conditions set forth below, or if you are a Certify competitor (defined below) or any OTHER individual or company seeking to create a service similar to or competitive with the Certify service, Certify is unwilling to provide access to the Certify Service, and you should not click on the "Submit" button or the "I have read and agree" button, and You should not execute a sales order form incorporating this Agreement or otherwise access or use the Certify Service.
In addition to those terms defined elsewhere in this Agreement, the following words and phrases in initial capital letters shall have the meanings set forth below:
1.1 "Certify Competitors" means the following list of companies, as the same may be amended by Certify from time to time: (i) Concur; (ii) ExpensAble.com; (iii) Expensewatch.com; (iv) Expense On Demand LTD; (v) GlobalPoint / ExpensePoint; (vi) Rearden Commerce / Expensewire; (vii) iEmployee; (viii) Virtual Communications / Expense Anywhere; (ix) Ariba; (x) Nexonia; (xi) Oracle; (xii) Infor; (xiii) CyberShift; (xiv) Global Expense; (xv) Atlantic Global Expense Management; (xvi) ADP; (xvii) 170 Systems; (xviii) SAP; (xix) gekima Solutions; (xx) Neutronix Corporation; and (xxi) Business Boss / Expense Boss.
1.2 "Certify Service" or "Service" means the online expense tracking and management service delivered by Certify to You using the Certify System.
1.3 "Certify System" means the technology, including the hardware and software, used by Certify to deliver the Certify Service to You in accordance with this Agreement.
1.4 "Content" means all content located on or contained in the Certify website or any other website owned or controlled by Certify.
1.5 "Data" means all data, materials or information provided by You or your employees in connection with Your use of the Certify Service.
1.6 "Documentation" means the online materials, specifications or forms provided by Certify that describe the features, functionality or operation of the Certify Service and/or Certify System.
1.7 "Password" means the unique password assigned to each User for access to the Certify Service and the Certify System.
1.8 "Users" means You and/or Your employees, representatives, consultants, contractors or agents who are authorized to use the Certify Service on Your behalf pursuant to Your acceptance of this Agreement and Your payment of the appropriate license fees covering each User.
2. Grant of License.
During the Term of this Agreement and subject to the terms of this Agreement, Certify hereby grants to You (and any authorized Users) a non-sublicensable, non-transferable, non-exclusive right and license to access and use the Certify Service, in accordance with the Documentation and solely for Your internal business operations. The number of Users under this Agreement shall be based upon the number of User license fees You have paid at the time of Your acceptance of this Agreement.
If you have only registered for the Free Trial of the Certify Service, then, in such case, Certify grants You a limited non-sublicensable, non-transferable, non-exclusive right and license to have one (1) User access and use the Certify Service until your Free Trial has expired. Such use shall be in accordance with the Documentation and solely for internal evaluation purposes.
3. Your Use of the Certify Service; Restrictions on Use.
3.1 Access and Security Guidelines. You will choose or be provided with that number of Passwords corresponding to the number of licensed Users. You will be responsible for ensuring the security and confidentiality of your Passwords. Each Password may be assigned to and used by only one individual User. You will use best efforts to prevent unauthorized access to, or use of, the Certify Service, and will notify Certify promptly of any such unauthorized use. You will not use your access to the Certify Service to: (a) access or copy any data or information of other Service users without their written consent; (b) harvest, collect, gather or assemble information or data regarding other users without their written consent; (c) knowingly interfere with or disrupt the integrity or performance of the Certify Service or the data contained therein; or (d) harass or interfere with another customer's use and enjoyment of the Certify Service. You will, at all times, comply with all applicable local, state, federal, and foreign laws in Your use of the Certify Service.
3.2 Your Data. You are solely responsible for Your Data and You will not provide, post or transmit any Data or any other information, data or material that: (a) infringes or violates any intellectual property rights, publicity/privacy rights, law or regulation; or (b) contains any viruses or programming routines intended to damage, surreptitiously intercept or expropriate any system, data or personal information. Certify may take remedial action if Your Data violates this Section 3.2; however, Certify is under no obligation to review Your Data for accuracy or potential liability.
3.3 Restrictions on Use.
(a) You are responsible for all activities that occur under Your User accounts. You will not, and will not attempt to (directly or indirectly): (a) reverse engineer, disassemble or decompile any component of the Certify System or Certify Service or otherwise attempt to discover any source code, underlying ideas or algorithms contained in the Certify System or Certify Service; (b) interfere in any manner with the operation of the Certify Service or the Certify System; (c) allow a third party to access the Certify Service or Certify System; (d) rent, lease, distribute, sell, resell, assign or otherwise transfer to a third party any of Your rights under this Agreement; (e) use the Certify Service or Certify System for the benefit of a third party, for timesharing or to operate a service bureau; (f) copy, modify, translate or make derivative works based on any part of the Certify System, Certify Service or Documentation; (g) create Internet "links" to or from the Certify Service or Certify System, or "frame" or "mirror" any of Certify's content which forms part of the Certify Service (other than on Your own internal intranets); (h) remove, cover, alter or obfuscate any logos, trademarks, internet links, confidentiality or proprietary rights notices, or any other notices or markings placed on or displayed by the Certify System, Certify Service or the Documentation; (i) publish or disclose to third parties the results of any evaluation or benchmark test run on the Certify System or Certify Service without Certify's prior written consent; or (i) otherwise use the Certify Service or Certify System in any manner that exceeds the scope of use permitted under this Agreement.
(b) You shall not and shall not allow any Users to (i) perform any technical security integrity review, penetration test, load test, denial-of-service simulation or vulnerability scan on the Certify Service or Certify System without Certify's prior written consent, or (ii) use any software tool designed to automatically emulate the actions of a human user (such tools are commonly referred to as "Robots") in conjunction with the Certify Service or Certify System. Common Robots include, but are not limited to, Loadrunner, Winrunner, Silk Performer, Rational Robot, QALoad and WebLOAD and such programs are commonly used for purposes of data entry, data loading, data migration, load testing, performance testing, performance monitoring, performance measuring and stress testing. If You or any User uses a Robot, including those listed above or other similar programs, in connection with the Certify Service or Certify System for the purposes listed above or any other purpose, it shall constitute a material breach of this Agreement.
(c) You may not use the Certify Service or Certify System for spamming, chain letters, junk mail or distribution lists to contact any person who has not given specific permission to be included in such list. You agree not to transmit, or permit Users to transmit, through the Certify Service or Certify System, any unlawful, harassing, libellous, abusive, threatening, vulgar, obscene or otherwise objectionable material of any kind. You agree to only use the Certify Service and Certify System for lawful purposes, in compliance with all applicable laws including, without limitations, copyright, trademark, obscenity and defamation laws. Unlawful activities may include, but are not limited to, storing, distributing or transmitting any unlawful material, attempting to compromise the security of any networked account or site, or making direct threats of physical harm.
3.4 System Availability
Certify does not warrant that the Service will be uninterrupted, timely or error free. You are solely responsible for evaluating the fitness for a particular purpose of any downloads, programs and text available through the Certify System. Redistribution or republication of any part of the Service or its Content is prohibited.
4.1 Certify Technology. You acknowledge and agree that Certify or its suppliers retain all right, title and interest in and to (i) the Certify System, Certify Service, Documentation and all other software, materials, formats, interfaces, information, content and proprietary information and technology used by Certify or provided to You in connection with the Certify Service, (ii) all modifications and/or enhancements to the Certify System or Certify Service, (iii) the Content, (iv) all suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by You or learned as a result of Your use of the Certify Service, (v) all transactional and performance data related to the use of the Certify System and the Certify Service which Certify may collect, use and disclose for its business purposes (including for purposes of software use optimization and product marketing) provided that such use does not reveal Your identity, any of Your Confidential Information, or any other personally identifiable information that belongs to You; (vi) all custom developed documents, designs, computer programs, computer documentation and other tangible materials created or prepared by Certify at your request pursuant to a separate, written statement of work; and (vii) the Certify logo, and the product and service names associated with the Certify Service or otherwise contained on the Certify website, all of which are trademarks of Certify (all of the foregoing being referred to herein collectively as, the "Certify Technology"). You acknowledge and agree that the Certify Technology is comprised of intellectual property rights owned by or licensed to Certify all of which are protected by intellectual property laws. Other than as expressly set forth in this Agreement, no license or other rights in the Certify Technology are granted to You, and all such rights are hereby expressly reserved by Certify.
4.2 Your Data. You retain all right, title and interest in and to Your Data. You grant to Certify all necessary licenses in and to such Data solely as necessary for Certify to provide the Certify Service to You or as required by law. You will be solely responsible for providing all Data required for the proper operation of the Certify Service. Except as described in Section 4.1 above, Certify will not knowingly use or access any of Your Data unless authorized to do so by You and, in such circumstances, Certify will access and use Your Data only as required to perform services on Your behalf.
5. Term and Termination.
5.1 Term. This Agreement will commence upon You clicking the "Submit" button below and/or otherwise accessing the Certify Service or Certify System and will continue in effect unless and until expiration or terminated pursuant to these terms (the "Term").
5.2 Termination. Either party may terminate this Agreement and Your subscription to the Certify Service at any time and for any reason or no reason at all. You may terminate this Agreement and Your subscription directly on the Certify website. The only circumstances in which You will be entitled to any refund of fees paid for Your subscription to the Certify Service upon termination of this Agreement are as follows: (a) in accordance with Section 7.1(b) below; or (b) Certify will refund to You any unearned fees in the event Certify terminates this Agreement and Your subscription to the Certify Service without cause. As used in the previous sentence, "unearned fees" means all license fees actually paid by You for access to the Certify Service for the month in which this Agreement is terminated, prorated to the number of days remaining in such month after termination.
5.3 Obligations After Termination. Upon termination of this Agreement for any reason: (a) any amounts owed to Certify under this Agreement before such termination will become immediately due and payable; and (b) each party will return to the other, or destroy, all Confidential Information and other property of the other party in its possession or under its control. Certify agrees that upon any termination of this Agreement, Certify will allow You to access, without the right to modify, enhance or add to, Your Data (either through on-line access or an off-line mechanism provided by Certify, at Certify's discretion) for five (5) days after termination. Thereafter, Certify will remove all of Your Data from the Certify System. Any such termination shall not limit any other rights or remedies which Certify may hold, all of which are hereby reserved.
6.1 You shall pay all fees or charges to your account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. The initial fees will be equal to the current number of total User licenses requested times the User license fee currently in effect. Payments must be made monthly in advance. Except as otherwise specifically provided in this Agreement, all payment obligations are non-cancelable and all amounts paid are nonrefundable. You are responsible for paying for all User licenses ordered each month, whether or not such User licenses are actively used. You must provide Certify with valid credit card or approved purchase order information as a condition to signing up for the Certify Service. You may add licenses by executing an additional written Sales Order Form online. Added licenses will be subject to the following: (a) the license fee for the added licenses will be the then current, generally applicable license fee; and (b) licenses added in the middle of a billing month will be charged in full for that billing month. Certify reserves the right to modify its fees and charges and to introduce new charges at any time. All pricing terms are confidential, and You agree not to disclose them to any third party.
6.2 Certify charges and collects in advance for subscription to the Certify Service. Certify will automatically bill your credit card on the first day of each month following subscription or Certify will invoice You for your monthly service charges. The renewal charge will be equal to the then-current number of total User licenses times the then current license fee. Fees for other services will be charged on an as-quoted basis. Certify's fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and You will be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on Certify's income. You agree to provide Certify with complete and accurate billing and contact information. This information includes Your legal name, street address, email address, and name and telephone number of an authorized billing contact. You agree to update this information within thirty (30) days of any change to it. If the contact information You have provided is false or fraudulent, Certify may terminate your access to the Certify Service in addition to exercising any other legal or equitable remedies.
6.3 In addition to any other rights Certify may have, Certify reserves the right to suspend or terminate this Agreement and your access to the Certify Service if your account becomes delinquent (falls into arrears). Delinquent accounts (accounts in arrears) are subject to interest of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. You will continue to be charged for User licenses during any period of suspension. If You or Certify initiates termination of this Agreement, You will be obligated to pay the balance due on your account computed in accordance with Section 6.1 above. You agree that Certify may charge such unpaid fees to Your credit card or otherwise bill You for such unpaid fees. Certify reserves the right to impose a reconnection fee in the event You are suspended and thereafter request access to the Certify Service. You agree and acknowledge that Certify has no obligation to retain Your Data and that such Data may be irretrievably deleted if your account is thirty (30) days or more delinquent.
7. Warranty; Disclaimer of Warranties; Limitation of Liability.
7.1 Certify Warranty. Certify warrants that the Certify Service will perform substantially in accordance with the Documentation during the Term of this Agreement (the "Limited Warranty"). In the event of a breach of the Limited Warranty, Certify's entire liability and Your exclusive remedy shall be, at Certify's option, either (a) correction of the Certify Service so that it performs substantially in accordance with the Documentation, or (b) return to You of the Fees actually paid by You for the thirty (30) days of access to the Certify Service immediately preceding Your written notice to Certify specifying the breach of the Limited Warranty in detail, and cancellation of your subscription and this Agreement.
7.2 Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 7.1 ABOVE, THE CERTIFY SERVICE, THE CERTIFY SYSTEM AND ALL OTHER DATA, MATERIALS AND DOCUMENTATION PROVIDED OR MADE AVAILABLE BY CERTIFY IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED "AS IS" AND "AS AVAILABLE," WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND. CERTIFY MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT, OR ANY IMPLIED WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. CERTIFY DOES NOT WARRANT THAT THE CERTIFY SERVICE WILL BE PROVIDED ERROR-FREE, UNINTERRUPTED, COMPLETELY SECURE OR VIRUS-FREE. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE CERTIFY SERVICE IS DONE AT YOUR RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR NETWORK, OR LOSS OF DATA THAT RESULTS FROM YOUR USE OF THE CERTIFY SERVICE.
7.3 Limitation of Liability. CERTIFY'S TOTAL CUMULATIVE LIABILITY TO YOU FOR ANY AND ALL CLAIMS ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT, THE CERTIFY SYSTEM OR THE SERVICE UNDER ANY LEGAL THEORY (INCLUDING, BUT NOT LIMITED TO, CLAIMS SOUNDING IN CONTRACT, TORT, STRICT LIABILITY, BREACH OF WARRANTY OR OTHERWISE), WILL BE STRICTLY LIMITED TO THE FEES ACTUALLY PAID BY YOU TO CERTIFY FOR THE CERTIFY SERVICE IN THE THIRTY (30) DAYS PRIOR TO THE ACT OF INJURY THAT GAVE RISE TO THE LIABILITY. ALL CLAIMS THAT YOU MAY HAVE AGAINST CERTIFY WILL BE AGGREGATED TO SATISFY THIS LIMIT AND MULTIPLE CLAIMS WILL NOT ENLARGE THIS LIMIT. IN NO EVENT WILL CERTIFY BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL THEORY (INCLUDING, BUT NOT LIMITED TO, CLAIMS SOUNDING IN CONTRACT, TORT, STRICT LIABILITY, BREACH OF WARRANTY OR OTHERWISE), INCLUDING, BUT NOT LIMITED TO, INTERRUPTED COMMUNICATIONS, LOST OR INACCURATE DATA, OR LOST PROFITS, AND DAMAGES THAT RESULT FROM INCONVENIENCE, OR LOSS OF USE OF ANY INFORMATION OR DATA OF THE CERTIFY SYSTEM OR CERTIFY SERVICE, EVEN IF CERTIFY HAS BEEN ADVISED OF, OR OTHERWISE SHOULD HAVE BEEN AWARE OF, THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY PROVIDED HEREIN.
8.1 Indemnity by Certify.
8.1.1 Certify will defend, indemnify and hold You harmless from all claims, losses, demands, liabilities, damages or judgments awarded by a court of appropriate and final jurisdiction, or any settlements, including all reasonable costs and expenses related thereto (including reasonable attorneys' fees), arising out of any third party claims that the Certify Service or the Certify System infringes or misappropriates any presently existing United States patent, copyright, trademark or trade secret held by such third party, provided that and so long as: (a) You use the Certify Service and the Certify System in accordance with the Documentation; (b) You have adhered to Your obligations under this Agreement; and (iii) You promptly notify Certify in writing of any such claim, suit or proceeding and permit Certify to control the defense or settlement thereof and cooperate in the defense or settlement thereof.
8.1.2 Certify will have the option, at its expense, to employ counsel of its choosing to defend against such claim and to compromise, settle or otherwise dispose of the claim; provided, however, that no compromise or settlement of any claim admitting liability of or imposing any obligations upon You may be affected without Your prior written consent. You shall have the option to be represented by counsel at Your own expense.
8.1.3 You shall cooperate fully in such actions, making available employees, books and records reasonably necessary for the defense of such claim. If Certify refuses to defend or does not make known to You its willingness to defend against such claim within thirty (30) days after it receives notice thereof, then You shall be free to investigate, defend, compromise, settle or otherwise dispose of such claim in Your best interest and incur other costs in connection therewith, all at the expense of Certify.
8.1.4 Should You be permanently enjoined by a court of competent jurisdiction from continued use of the Certify Service because it infringes or misappropriates a third party's presently existing United States copyright, patent, trademark or trade secret, Certify will (at Certify's discretion): (i) obtain the appropriate licenses for You to continue to use the Certify Service; (ii) provide You with a non-infringing service equivalent to the Certify Service in terms of functionality and performance; or (iii) terminate this Agreement and refund to You the amount of the Fees actually paid by You for the prior thirty (30) days of access to the Certify Service.
8.1.5 Certify will have no obligation under this Section 8.1 with respect to any claim of infringement or misappropriation of a third party's proprietary rights to the extent such claim arises as a direct or indirect result of (a) any use of the Certify Service or Certify System in a manner other than as authorized in this Agreement; (b) any use of the Certify Service or Certify System in combination with other products, equipment, devices, software, systems or data not supplied by Certify to the extent such claim is directed against such combination; or (c) any alteration, modification or customization of the Certify Service or Certify System made by any party other than Certify if such infringement or misappropriation would not have occurred without such alteration, modification or customization. THIS SECTION 8.1 SETS FORTH THE ENTIRE OBLIGATION OF CERTIFY AND YOUR EXCLUSIVE REMEDY FOR ANY CLAIM OF INFRINGEMENT OR MISAPPROPRIATION.
8.2 Indemnity by You. You shall indemnify, defend and hold Certify harmless from all claims, losses, demands, liabilities, judgments, damages and costs (including reasonable attorneys' fees) arising from or relating to (a) use of the Certify Service or Certify System (including claims by any of Your customers or business partners) by You or any third party using a Password assigned to You; (b) a breach by You of any of Your obligations, representations, warranties or covenants contained in this Agreement; or (c) any claim alleging that Your Data, or the use of Your Data pursuant to this Agreement, infringes, misappropriates or violates the intellectual property or any other rights of a third party or otherwise causes harm to a third party.
9.1 Confidential Information. During the Term of this Agreement, each party will have access to certain information and materials concerning the other party's technology, business plans, and customers that are confidential and of substantial value to such party, which value would be impaired if such information were disclosed to third parties ("Confidential Information"). Confidential Information of Certify shall include, without limitation, information specifically designated as confidential, the features and functions of the Certify Service and Certify System that are not available to the general public (including screen shots of the same), future product plans, the Documentation, performance and security test results (whether conducted by Certify or You), and any other proprietary, financial or business information supplied to You by Certify or learned by You in connection with this Agreement or Your subscription to the Certify Service. Except as otherwise expressly authorized under this Agreement, the receiving party hereunder: (i) shall not use any Confidential Information of the other party except as required to fulfill its responsibilities hereunder; (ii) shall not disclose the other party's Confidential Information to any third party; (iii) shall not be given any right, title, interest or license in or to any Confidential Information of the other party; and (iv) shall use all reasonable means to protect and maintain the secrecy of the other party's Confidential Information. Notwithstanding the foregoing, "Confidential Information" shall not include either party's information which is: (a) generally available to the public; (b) already in the receiving party's possession as of the commencement of this Agreement without restriction; (c) received by the receiving party from a third party not in violation of an obligation of confidentiality; (d) developed independently by either party without reference to the other party's Confidential Information; (e) the subject of the disclosing party's written consent authorizing disclosure; or (f) required to be disclosed by the receiving party by applicable law or legal process, provided that the receiving party immediately notifies the disclosing party so that the disclosing party may take steps to limit or prevent its disclosure. In the event of a breach of this Section, the parties agree that the non-breaching party will suffer irreparable harm and the total amount of monetary damages for any injury to the non-breaching party will be impossible to calculate and would therefore be an inadequate remedy. Accordingly, the parties agree that the non-breaching party shall be entitled to temporary, preliminary and permanent injunctive relief against the breaching party, its officers, managers, directors, employees and agents, in addition to such other rights and remedies to which it may be entitled at law or in equity.
9.2 Personal Information. Certify will not sell, share or rent your personal information to any third party or use your email address for unsolicited mail. Any emails sent to You by Certify will be in connection with your subscription to the Certify Service or other services offered by Certify.
10.1 Log Files. Certify uses IP addresses to analyze trends, administer the Certify website, track users' movements, and gather broad demographic information for aggregate use. IP addresses are not linked to any personally identifiable information. In addition, for purposes of systems administration, detecting usage patterns and troubleshooting, our web servers automatically log standard access information including browser type, access times/open mail, URL requested, and referral URL. Such information is not shared with third parties and is used only within Certify on a need-to-know basis. Any individually identifiable information related to this data will never be used in any way other than as authorized in this Agreement without Your express permission.
10.3 Links. Certify does not monitor or review the content of any third party websites which are linked to or from the Certify website. Opinions expressed or material appearing on such third party websites are not necessarily shared or endorsed by Certify, and Certify should not be regarded as the publisher of such opinions or material. Certify is not responsible for the privacy practices, or content, of these third party websites. Certify encourages its users to be aware when they leave the Certify website and to read the privacy policies of any third party websites they enter. You should evaluate the security and trustworthiness of any other website connected to the Certify website or accessed through this website yourself, before disclosing any personal information to them. Certify will not accept any responsibility for any loss or damage in whatever form or manner, howsoever caused, resulting from your disclosure of personal information to third parties.
10.4 Publicity. If You enter into this Agreement and become a subscriber of the Certify Service, You agree that Certify may disclose to the public that you are a paying subscriber of the Certify Service. You further agree that Certify may reference You, along with Your logo, on the customer section of Certify's website until such time as Your use of the Certify Service is discontinued.
10.5 Certify Competitors. You will not allow any access to or use of the Certify Service, Certify System, or Documentation by (i) any Certify Competitor (including, but not limited to, any employees or agents of any Certify Competitor), or (ii) any other individuals or companies seeking to create a service similar to or competitive with the Certify Service. The list of Certify Competitors set forth in Section 1.1 above is subject to change by Certify from time to time, so You should review the list periodically.
10.6 Communication. Certify maintains several different email addresses for queries on different topics. Such email addresses and other Certify contact information can be found on the Contact Us link located on the Certify website or via Certify literature.
10.7 Notification of Changes. Certify reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Certify Service at any time, effective upon posting of an updated version of this Agreement or the applicable policy on the Certify website or Certify Service. You are responsible for regularly reviewing this Agreement and any applicable policies. Continued use of the Certify Service after any such changes will constitute Your consent to such changes. If there are any changes in how Certify uses Your personally identifiable information, it will notify You by email.
10.8 Force Majeure. Neither party shall be in default by reason of any failure in the performance of this Agreement if such failure arises, directly or indirectly, out of causes reasonably beyond the direct control or foreseeability of such party, including but not limited to, third-party computer or telecommunications equipment or software failures, default by subcontractors or suppliers, acts of God or of the public enemy, domestic or foreign governmental acts, labor, fire, flood, epidemic, strikes, and/or freight embargoes.
10.9 General. This Agreement is governed by the laws of the State of Maine, without reference to its conflicts of laws principles. This Agreement sets forth the entire understanding and agreement between the parties and supersedes any prior or contemporaneous discussions, understandings, orders, requests or statements regarding the subject matter hereof, except for any additional payment terms which may be contained on a related Sales Order Form. No provision of this Agreement shall be modified, supplemented or waived without the express written agreement of Certify. This Agreement shall be binding upon and inure to the benefit of Certify's and Your successors and permitted assigns. You agree that Certify is providing these Services as an independent contractor and nothing herein shall be deemed to constitute a partnership, joint venture or other business collaboration. In the event of a dispute between Certify and You where the parties are unable to reach a mutually agreeable resolution, the dispute shall be submitted to binding arbitration under the expedited commercial arbitration rules of the American Arbitration Association then in effect; provided, however, that Certify shall be entitled to avail itself of injunctive and other equitable rights and remedies in a court of competent jurisdiction in order to protect its rights and interests. Arbitrations shall take place in Portland, Maine. There shall be one (1) arbitrator mutually agreed to by both parties (if the parties are unable to agree on a single arbitrator, the arbitrator shall be chosen in accordance with the rules of the American Arbitration Association); such arbitrator shall have experience in the area of the dispute. Payment of the expenses of arbitration, including attorneys' fees and the fee of the arbitrator, shall be assessed by the arbitrator based on the extent to which each party prevails. If any provision of this Agreement is held by an arbitrator or court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. The failure of Certify to enforce any right or provision in this Agreement will not constitute a waiver of such right or provision unless acknowledged and agreed to by Certify in writing.
10.10 Survival. Sections 1, 3, 4, 5.3, 7.2, 7.3, 8.2, 9 and 10 of this Agreement and all of Your payment obligations under this Agreement shall survive the termination or expiration of this Agreement for any reason.