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The Eightball Terms
Last updated 1 October 2015
PLEASE READ THIS "THE EIGHTBALL" USER AGREEMENT (THE “AGREEMENT”) CAREFULLY BEFORE USING THE SERVICES OFFERED BY THE SOCIAL+CAPITAL PARTNERSHIP, L.L.C. (“COMPANY”). BY CHECKING THE CHECK BOX BELOW AND CLICKING THE “CONFIRM” BUTTON, OR BY USING THE SERVICES IN ANY MANNER, YOU OR THE ENTITY YOU REPRESENT (“USER”) AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY AND A PARTY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS. IF YOU ARE ACCESSING THE SERVICES ON BEHALF OF YOUR EMPLOYER, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO AGREE TO THESE TERMS ON ITS BEHALF AND THE RIGHT TO BIND USER THERETO. USE OF COMPANY’S SERVICES IS EXPRESSLY CONDITIONED UPON USER’S ASSENT TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, TO THE EXCLUSION OF ALL OTHER TERMS. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS. IF USER DOES NOT UNCONDITIONALLY AGREE TO ALL THE TERMS AND CONDITIONS OF THE AGREEMENT, NAVIGATE AWAY FROM THIS PAGE AND USER WILL HAVE NO RIGHT TO USE THE SERVICES. 1. Access to the Service; User Data Subject to User’s compliance with the terms and conditions of this Agreement Company grants User the right to access and use the platform and services offered by Company (collectively, the “Service,” or “Services”) during the term of this Agreement for the business purposes of User, only as provided herein. For purposes of this Agreement, “User Data” shall mean any data, content, information or other material provided, uploaded, submitted or provided by or on behalf of User to the Service in the course of using the Service. User shall retain all right, title and interest in and to the User Data, including all intellectual property rights therein. User, not Company, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all User Data. Company shall use commercially reasonable efforts to maintain the security and integrity of the Service and the User Data. Company is not responsible to User for unauthorized access to User Data or the unauthorized use of the Service unless such access is due to Company’s gross negligence or willful misconduct. User is responsible for the use of the Service by any person to whom User has given access to the Service, even if User did not authorize such use. Notwithstanding anything to the contrary, User acknowledges and agrees that Company may (i) internally use and modify User Data for (A) its business purposes, (B) providing the Service to User and (C) generating Aggregated Anonymous Data (as defined below) and (ii) freely use and make available Aggregated Anonymous Data for Company’s business purposes (including without limitation, for performing comparisons or other benchmarking activities, as well as improving, testing, operating, promoting and marketing Company’s services) and (iii) provide User Data to Company’s partners and agents but solely to the extent necessary to provide the Services hereunder. “Aggregated Anonymous Data” means User Data submitted to, collected by, or generated by Company in connection with User’s use of the Service, but only in aggregate, anonymized form which can in no way be linked specifically to User. 2. Ownership; Feedback As between the parties, Company retains all right, title, and interest in and to the Services, and all software, products, works, and other intellectual property and moral rights related thereto or created, used, or provided by Company for the purposes of this Agreement, including any copies and derivative works of the foregoing. Any software which is distributed or otherwise provided to User hereunder shall be deemed a part of the “Services”. No rights or licenses are granted except as expressly and unambiguously set forth in this Agreement. User may from time to time provide suggestions, comments or other feedback to Company with respect to the Service (“Feedback”). Feedback, even if designated as confidential by User, shall not create any confidentiality obligation for Company notwithstanding anything else. User shall, and hereby does, grant to Company a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose. Nothing in this Agreement will impair Company’s right to develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as, or otherwise compete with any products, software or technologies that User may develop, produce, market, or distribute. 3. Restrictions Except as expressly set forth in this Agreement, User shall not (and shall not permit any third party to), directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Service (except to the extent applicable laws specifically prohibit such restriction); (ii) modify, translate, or create derivative works based on the Service; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Service; (iv) interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service; or (v) bypass any measures Company may use to prevent or restrict access to the Service (or other accounts, computer systems or networks connected to the Service). User is responsible for all of User’s activity in connection with the Service, including but not limited to uploading User Data onto the Service. User (i) shall use the Service in compliance with all applicable local, state, national and foreign laws, treaties and regulations in connection with User’s use of the Service (including those related to data privacy, international communications, export laws and the transmission of technical or personal data laws), and (ii) shall not use the Service in a manner that violates any third party intellectual property, contractual or other proprietary rights. 4. Representations and Warranties; Release User represents, warrants and covenants that: (i) User has all right, power and authority to enter into and properly perform under this Agreement; and (ii) User has all necessary rights to upload, submit or provide any User Data uploaded, submitted or provided to the Services and such User Data shall not (a) infringe upon the rights of any third party, including but not limited to trademark, copyright, patent, trade secret or other intellectual property or confidentiality rights, or (b) violate any applicable law rule or regulation or breach any of User’s contractual obligations to third parties. 5. Disclaimer; Release THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE” AND ARE WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. COMPANY, ALONG WITH ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS AND PARTNERS DO NOT WARRANT THAT: (I) THE SERVICES WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (II) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (III) ANY CONTENT OR SOFTWARE AVAILABLE AT OR THROUGH THE SERVICES IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (IV) THE RESULTS OF USING THE SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS (INCLUDING, WITHOUT LIMITATION, THE GENERATION OF ANY BUSINESS, INCOME, PROFITS OR EARNINGS). USER’s USE OF THE SERVICES IS SOLELY AT USER’S OWN RISK. User releases Company as well as its AFFILIATES, directors, OFFICERS, employees, agents, suppliers and partners from all liability arising out of its use of the Services. Company makes no representations concerning any Content, data or results contained in or accessed through the Services. 6. Term; Termination This Agreement shall commence on User’s acceptance of this Agreement and continue indefinitely unless this Agreement is terminated in accordance herewith. In the event of a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement by providing written notice to the breaching party, provided that the breaching party does not materially cure such breach within thirty (30) days of receipt of such notice. Without limiting the foregoing, Company may (i) terminate this Agreement immediately upon notice to User for any or no reason at all; or (ii) suspend or limit User’s access to or use of the Service if User’s use of the Service results in (or is reasonably likely to result in) damage to or material degradation of the Service which interferes with Company’s ability to provide access to the Service to other Users. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability. 7. Limitation of Liability IN NO EVENT WILL COMPANY BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, THE DELAY OR INABILITY TO USE THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. SUBJECT TO THE RELEASE SET FORTH IN SECTION 5, THE TOTAL LIABILITY OF COMPANY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, $500.00. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. 8. Indemnification User shall defend, indemnify, and hold harmless Company, its affiliates, directors, officers, employees, agents, suppliers and partners from all liabilities, claims, and expenses, including reasonable attorneys’ fees, that arise from or relate to User’s use or misuse of, or access to, the Services or otherwise arising out of User’s User Data, User’s violation of this Agreement. Company reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by User, in which event User will assist and cooperate with us in asserting any available defenses. 9. Miscellaneous This Agreement represents the entire agreement between User and Company with respect to the subject matter hereof, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between User and Company with respect thereto. The Agreement shall be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of law rules, and the parties consent to exclusive jurisdiction and venue in the state and federal courts located in Santa Clara County, California. All notices under this Agreement shall be in writing and shall be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Company reserves the right, in its sole discretion, to modify or replace any of this Agreement, or change, suspend, or discontinue the Services (including without limitation, the availability of any feature, database, or content) at any time by posting a notice on or through the Services, via e-mail or by another appropriate means of electronic communication. Company shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Company’s reasonable control, including, without limitation, the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes lock-outs or labor disruptions; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts. This Agreement is personal to User, and is not assignable, transferable or sublicensable by User except with Company’s prior written consent. Company may assign, transfer or delegate any of its rights and obligations hereunder without consent. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of either party to act with respect to a breach of this Agreement by the other party shall not constitute a waiver and shall not limit such party’s rights with respect to such breach or any subsequent breaches.