Terms of Service
LAST UPDATED: July 16, 2021
Welcome to Ask Iggy. Please read the following terms of service (“Terms of Service”) carefully as they contain the legal terms and conditions governing your access and use of the Service (defined below) provided by Ask Iggy, Inc. (“Iggy,” “we,” “our,” or “us”), including access and use of the Service through the Iggy website and Iggy’s online ordering process (the “Site”). The terms “Customer,” “you,” or “your” means the individual or business entity who registers for the Service and accepts these Terms. If you are an individual acting on behalf of a business entity, you represent and warrant that you have the authority to bind such business entity to these Terms.
Iggy has developed an online location and geographic data platform (the “Service”), and Customer desires to purchase subscriptions to the Service as well as the right to use certain Output obtained via the Service.
“Terms” means these Terms of Service, together with any orders placed by Customer hereunder, including via any online registration or ordering process on the Site through which Customer submits ordering information for Customer’s use of the Service, which processes include, without limitation, self-service signups by Customer for the Service via the Site (each an “Order”). Each Order will set forth the applicable subscription term and subscription tier applicable to Customer’s use of the Service. The Terms constitute the terms and conditions under which Iggy is willing to provide you with the Service.
Iggy may modify these Terms of Service at any time by posting updated versions of these Terms of Service on the Site. Modifications become effective immediately upon your first access to or use of the Service after the “Last Updated” date at the bottom of these Terms of Service. Your continued access to or use of the Service after the modifications have become effective will be deemed your conclusive acceptance of the modified Terms of Service. If you do not agree with the modifications, do not access or use the Service. Notwithstanding the foregoing, if Iggy makes any material modifications to these Terms of Service, Iggy will notify Customer of such modifications and, if Customer objects to such modifications, Customer may terminate these Terms upon written notice to Iggy within thirty (30) days following Iggy’s notice of such modifications.
- DEFINITIONS. Capitalized terms will have the meanings set forth in this Section 1, or in the section where they are first used.
“API Call” means software code that makes a call to any interface (including the Service API) that is related to the Service. “Customer Data” means any data, information, content, or other material submitted to the Service by or on behalf of Customer or Users. Customer Data excludes Usage Data. “Documentation” means the applicable specifications and user documentation provided or made available by Iggy to Customer describing the use and operation of the Service. “Output” means any data, information, content, or other material produced or generated as a result of Customer’s use of the Service and provided to Customer via the Service. “Service API” means any application programming interface that is expressly provided or made available by Iggy to Customer for accessing the Service. The Service includes the Service APIs. “Usage Data” means any data collected or generated by Iggy in connection with the Service (including without limitation, any information related to how Users use the Service and analysis). “User” means any Customer employee or contractor, or other individual or entity, that accesses the Service through Customer’s account, API keys, and/or access credentials or is added to the Service by Customer. Any access or use of the Service by any User is considered use or access by Customer.
1. Service. Subject to the terms and conditions of these Terms, Iggy will provide the components of the Service that are specifically described in an Order applicable to Customer’s subscription tier.
2. Service License. Subject to the terms and conditions of these Terms, Iggy grants Customer, during the Term, a non-exclusive, non-sublicensable, and non-transferable license to: (a) access and use the Service to the extent identified in an Order; (b) to use and reproduce the Documentation solely in connection with Customer’s use of the Service; and (c) write API Calls to the Service APIs that comply with the Documentation for the Service APIs and use such API Calls solely to access and use the Service as permitted herein, in each case solely with Customer’s business purposes. Customer acknowledges and agrees that the functionality available via the Service may vary depending on Customer’s subscription tier.
3. Output License. Subject to the remainder of this Section 2.3, Output shall be deemed part of the Service. Notwithstanding the foregoing, and subject to the terms and conditions of these Terms, Iggy grants Customer a limited, non-exclusive, non-transferable license, for the duration of your subscription term, to use Output, solely for Customer’s business purposes. In connection with the foregoing license, Customer may, during your subscription term and for a period of thirty (30) days thereafter, modify, enhance, and create derivative works of and from the Output and display the foregoing in Customer’s software application(s) (each an “Application”) to end users of such Application(s). After such thirty (30)-day period, you must delete all Output and any modifications, enhancements, and derivative works thereof from each of your Applications pursuant to Section 6.6.
4. Open Source Software. Certain aspects of the Service may include software that is subject to “open source” or “free software” licenses (“Open Source Software”) and may be owned by third parties. The Open Source Software is not subject to the terms and conditions of these Terms, and instead, is licensed to Customer under the terms of the license associated with such Open Source Software. Nothing in these Terms limits Customer’s rights under, or grants Customer rights that supersede, the licenses applicable to the Open Source Software. If required by any license for any Open Source Software, Iggy will make such Open Source Software, and Iggy’s modifications to that Open Source Software, if any, available by written request at the notice address specified herein.
5. Support. In connection with Customer’s use of Service, Iggy will provide e-mail and on-line support to address issues encountered by Customer, which such support may vary depending on Customer’s subscription tier. API Calls that are not provided by Iggy will not be considered part of the Service for purposes of support, but Iggy will use reasonable efforts to support them.
6. Data Security. Iggy will implement and maintain appropriate administrative, physical, and technical safeguards designed to protect the security, confidentiality, and integrity of Customer Data.
7. Usage Data. Customer acknowledges and agrees that provision of the Service involves, and Customer authorizes Iggy’s: (a) collection of Usage Data in connection with providing the Service, (b) use of Usage Data in connection with providing, analyzing, and improving Iggy products and services, and (c) generation and use of de-identified aggregated, or anonymized data that does not include any identifying information of, or reasonably permit the identification of, Customer or any individual (including any User). Iggy will comply with applicable statutory requirements with respect to the data generated pursuant to this Section 2.7.
8. APIs. Any API Calls that are not written and provided by Iggy will not be considered a component of the Service and are not required to be supported by Iggy. It is Customer’s responsibility to (a) ensure that its use of such API Calls will have the effects desired by Customer, (b) regularly check for updates to the Service APIs, and (c) make appropriate updates to any of its API Calls it uses. Iggy reserves the right to deprecate any Service APIs. Iggy may limit: (i) the number of API Calls Customer may make; or (ii) the maximum Output that may be received via the Service. Iggy may impose or modify these limitations without notice to Customer.
- FEES AND PAYMENTS.
1. Fees. Customer shall pay Iggy all fees associated with Customer’s selected subscription tier set forth in the applicable Order, Iggy’s pricing page located at askiggy.com/pricing, or described in these Terms (the “Service Fees”) in accordance with the payment terms set forth in the applicable Order and billing terms in effect at the time Service Fees are due and payable. Customer must provide the applicable Payment Processor (defined below) with a valid credit card (e.g., Visa or MasterCard) or other accepted payment method (e.g., Apple Pay) (each provider of such a payment method, a “Payment Provider”) as a condition to placing any order through the Service. Customer’s Payment Provider agreement governs Customer’s use of the designated payment method, and Customer must refer to that agreement and not these Terms to determine Customer’s rights and liabilities. Unless otherwise stated in the applicable Order, Iggy will charge (and Customer hereby authorizes Iggy to charge) Customer’s Payment Provider for all Service Fees for any billing frequency otherwise established in the Orde and the amount of any past due Service Fees, plus late charges, if any, due to Iggy under these Terms. All Service Fees will be paid in U.S. Dollars. Customer will make all payments of the Service Fees to Iggy without reduction for any fees or charges applicable to Customer’s method of payment (e.g., wire fees). Iggy may charge Customer (and Customer will pay Iggy) for any such fees to the extent Customer’s payment is made net of any such fees.
2. Payment Terms. Unless otherwise stated in the applicable Order, all Service Fees not disputed in good faith are due to Iggy within thirty (30) days after Customer’s receipt of the invoice therefor. Claims for adjustment of any invoiced Service Fees must be submitted by Customer within fifteen (15) days of the date of the invoice electronically to Iggy at email@example.com. If any amounts are disputed in good faith, the remaining amounts will be paid when due and payment of such undisputed amounts may not be withheld for any reason. Any undisputed amount that is not paid when due may accrue a late fee of 1.5% per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid. In addition, Customer will reimburse Iggy for all costs (including reasonable attorney and collection agency fees) associated with collecting delinquent or dishonored payments. The Service Fees and payment terms can be changed by Iggy upon written notice (email or notice via account sufficient) to Customer prior to the then-current Renewal Order Term. Any changes will be effective beginning on the next Renewal Order Term that begins at least thirty (30) days after such notice unless Customer terminates its subscription in accordance with Section 6.4 (Termination of Subscription) prior to the end of the then-current Renewal Order Term. All Service Fees due under these Terms are non-refundable.
3. Taxes. All Service Fees exclude, and Customer shall be responsible for, all sales, use, excise, and other taxes applicable to the transactions contemplated by these Terms, except for taxes based on Iggy’s net income. If Customer is legally obligated to make any deduction or withholding from any Service Fees payment under these Terms, it shall also pay whatever additional amount is necessary to ensure that Iggy receives the full amount otherwise receivable had there been no deduction or withholding obligation.
4. Payment Processing. Iggy currently uses and reserves the right to continue using third-party payment providers (“Payment Processors”). Customer’s making or receipt of any electronic payment through any Payment Processor is also governed by the applicable Payment Processor’s terms of service. Currently, Iggy uses Stripe, Inc. (“Stripe”) as its Payment Processor for payment services (e.g., receipt and payment or amounts hereunder). As a condition to using such payment services, (a) Customer agrees to be bound by and comply with the Stripe Connected Account Agreement (including the Stripe Services Agreement) located at: https://stripe.com/connect-account/legal as may be modified by Stripe from time to time (the “Stripe Agreement ”) and (b) Customer must provide accurate and complete payment information and Customer authorizes Iggy to share this information with the applicable Payment Processor and authorizes Iggy and the Payment Processors to share any information and payment instructions Customer provides to the extent required to complete the payment services. All payment information is sent directly to and stored with the applicable Payment Processor using their security protocols. Iggy does not store Customer’s payment information on its systems and shall not have any responsibility for the safety or security of that information. If the Stripe Agreement or Customer’s use of Stripe’s services is terminated by Stripe, Customer may not be able to use certain portions of the Services. Iggy may change or add other Payment Processors at any time with or without notice to Customer, and Customer’s use of payment services via such Payment Processors may be subject to additional terms or conditions.
- CUSTOMER RESPONSIBILITIES.
1. Limitations. Customer agrees that Customer shall not do, attempt to do, nor permit any User or any other person or entity to do, any of the following (except as otherwise expressly permitted herein): (a) permit any party to access and/or use the Service; (b) rent, lease, loan, or sell access to the Service to any third party, or use the Service on behalf of any third party; (c) interfere with, disrupt, create an undue burden on, alter, translate, or modify the Service, any part thereof, or the networks or services connected to the Service (through scripts or otherwise); (d) perform penetration tests or any other security tests on the Service, create derivative works of the Service, or reverse engineer, reverse compile, reverse assemble or do any other operation with any aspect of the Service that would reveal any source code, trade secrets, know-how or other proprietary information; (e) access the Service in order to (i) build a competitive product or service; (ii) build a product using similar ideas, features, functions, or graphics of the Service; or (iii) copy any ideas, features, functions, or graphics of the Service; (f) without Iggy’s express written permission, introduce software or automated agents or scripts to the Service so as to produce multiple accounts, generate automated searches, requests, or queries, or to strip or mine data from the Service; (g) perform or publish any performance or benchmark tests or analyses relating to the Service or the use thereof; (h) access or use the Service APIs in any way that is not expressly permitted in the Documentation therefor; (i) access the Service or any feature thereof (including via any API) in excess of or in circumvention of any usage limitations (such as API call or rate limits) described in the Documentation, these Terms of Service, or any Order; or (j) resell any Output or any modifications, enhancements, or derivative works thereof.
2. Availability. Customer is responsible for obtaining all services and technologies necessary to access to the Service and Customer understands that such access may involve third party fees and costs (such as Internet service provider or airtime charges). Customer is responsible for all such fees and costs.
3. Usernames and Passwords. Customer is solely responsible for maintaining the confidentiality of all Customer usernames and passwords. Customer agrees (a) not to allow a third party to use its account, usernames, or passwords at any time, except as expressly permitted under these Terms; and (b) to notify Iggy promptly of any actual or reasonably suspected unauthorized use of its account, usernames, or passwords, or any other breach or suspected breach of the Terms of which it becomes aware. Iggy reserves the right to terminate or suspend any username that Iggy reasonably determines may have been used by an unauthorized third party or an individual or entity other the User to whom such username and password was originally assigned.
4. Authority. Customer represents and warrants that it has the authority to (a) disclose to Iggy, and to permit Iggy to collect and process, Customer Data and Usage Data in connection with, and in accordance with, these Terms, and (b) take any and all actions taken with respect to Customer’s and any User’s use of the Service.
5. Application. Customer is solely responsible and liable for the Application(s) and any use of the Output by Customer and any User, and for supporting the Application(s). Customer represents and warrants that the Application(s) and any use of the Output by Customer and any User will not: (a) violate any third-party right, including any intellectual property or proprietary right; or (b) violate any laws, rules, or regulations (including any privacy laws) or any obligations or restrictions imposed by any third party. Unless otherwise set forth in the applicable Order, Customer will clearly and conspicuously attribute the source of all Output received through the Service.
IGGY AND ITS SUPPLIERS AND LICENSORS EXPRESSLY DISCLAIM ALL REPRESENTATIONS, WARRANTIES, OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ALL REPRESENTATIONS, WARRANTIES, OR CONDITIONS OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, IN EACH CASE ARISING FROM OR RELATED TO THESE TERMS OR THE SERVICE.
- TERM, TERMINATION, AND SUSPENSION.
1. Term. Unless otherwise expressly set forth in the Order, these Terms will become effective the earlier of the date you (a) begin using the Service or (b) complete an Order and continue until the earlier of (i) the date these Terms are terminated as set forth herein, and (ii) all Orders entered into under these Terms are terminated as set forth herein or therein (“Term”).
2. Order Renewal. Following the initial subscription term under any Order (the “Initial Order Term”), such Order will automatically renew for additional monthly periods (each, a “Renewal Order Term” and together with the Initial Order Term, each and “Order Term”), unless earlier terminated as provided herein or therein. Unless otherwise stated in the applicable Order, Iggy will charge (and Customer hereby authorizes Iggy to charge) Customer’s Payment Provider for all Service Fees for any applicable Renewal Order Term at the time of such renewal.
3. Termination of Terms. Except as otherwise provided for herein, either party may terminate these Terms or any Order(s) hereunder upon the material breach of the other party, if such breach remains uncured for thirty (30) days following the breaching party’s receipt of written notice of the breach. Upon termination of these Terms, all Orders hereunder will automatically terminate.
4. Termination of Subscription. Customer may terminate its subscription via Customer’s account or by written notice to Iggy at least five (5) days prior to the end of the then-current Order Term. In addition, Iggy may terminate Customer’s subscription by written notice to Customer at least ten (10) days prior to the end of the then-current Order Term. Upon the termination of Customer’s subscription, the applicable Order corresponding to such subscription will automatically terminate at the end of the then-current Term.
5. Suspension. If (a) Customer fails to make payment for any applicable Service Fees due under these Terms and does not cure the same within ten (10) days after receiving notice thereof, (b) Customer exceeds any usage limitation described herein or applicable to Customer’s subscription tier, as set forth in the applicable Order, and does not cure the same within ten (10) days after receiving notice thereof, (c) Customer breaches subsection “(c)”, “(d)”, “(e)”, “(f)”, “(i)” , or “(j)” of Section 4.1 (Limitations), or (d) there is a threat to the security or technical integrity of the Service, Iggy may suspend Customer’s access to the Service, in each case until such time as Iggy determines that Customer is in compliance with these Terms and/or that such threat has been addressed. For purposes of clarity, Customer agrees that if 6.4(a) applies, Iggy and/or the applicable Payment Processor may either terminate or suspend Customer’s access to the Service and continue to attempt to charge Customer’s payment method until payment is received (upon receipt of payment, Customer’s access to the Service will be reactivated and Customer’s next subscription term will begin on the date of such payment).
6. Effect of Termination. Upon any termination of these Terms or the applicable Order: (a) Customer shall promptly pay Iggy all amounts owed under the applicable Order(s) without regard to whether any invoices had or had not been previously issued; (b) Customer’s access to the Service under the applicable Order(s) will be terminated, and Customer shall cease using the Service, at the end of Customer’s then-current subscription term (notwithstanding the effective date of termination); and (c) Customer shall cease using the Output provided via the applicable Order(s) in any way and agrees to promptly destroy any and all copies of such Output and any information it has obtained from the Output in any form (and to delete all such Output and any modifications, enhancements, or derivative works thereof from Customer’s Application promptly, but in any event within thirty (30) days of termination). Iggy may request, and Customer must provide, written certification of the destruction and cessation of use required by (c). In no event will Customer be eligible for any refund of any Service Fees, whether or not paid in advance, and whether or not the associated Service has been rendered therefor. Notwithstanding the foregoing, provided that this Agreement is not terminated by Iggy pursuant to Section 6.3 (Termination of Terms), upon Customer’s request, Iggy will permit Customer to access the Service, solely for the purpose of downloading Customer Data (as defined below) for a period of thirty (30) days following the effective date of termination or expiration of this Agreement.
7. Survival. Sections 1 (Definitions), 2.3 (Output License), 2.7 (Usage Data), 3 (Fees; Payments), 4.1 (Limitations), 5 (Disclaimer), 6.6 (Effect of Termination), and 8 (Ownership) through 12 (General Provisions) shall survive any termination or expiration of these Terms.
8. Free Trial. If Customer registers for a free trial of the Service via the Site (a “Trial Subscription”), Iggy will make such Service available on a trial basis in accordance with an Order Form until the earliest of: (a) thirty (30) days after the trial period begins; (b) the start date of any subscription to such Service purchased by You for such Service; or (c) termination of the Trial Subscription by Iggy in its sole discretion (the “Trial Period”). Such Trial Subscription will be subject to such additional usage limitations (such as API call or rate limits) described in the self-service signup for the Trial Subscription via the Site. AT THE END OF THE TRIAL PERIOD, ANY CUSTOMER DATA SUBMITTED TO THE SERVICE DURING YOUR TRIAL SUBSCRIPTION WILL BE LOST, AND YOUR ACCOUNT WILL BE SUSPENDED, UNLESS AND UNTIL YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICE COVERED BY THE TRIAL SUBSCRIPTION BEFORE THE END OF SUCH TRIAL PERIOD. IGGY WILL HAVE NO WARRANTY, INDEMNITY, SUPPORT, LIABILITY, OR OTHER OBLIGATIONS IN CONNECTION WITH TRIAL SUBSCRIPTIONS.
1. Ownership of Service. As between Iggy and Customer, Iggy owns all right, title, and interest in and to the Service and Documentation, including all intellectual property rights therein. Customer acknowledges and agrees that it does not acquire any rights, express or implied in or to the Service, except as specifically set forth in these Terms. Except as expressly set forth in these Terms, no express or implied license or right of any kind is granted to Customer regarding the Service, or any part thereof. All brand, product, and service names and marks used in the Service which identify Iggy are proprietary names and marks of Iggy. All brand, product, and service names and marks used in the Service which identify third parties, or their products or services are proprietary names and marks of such third parties. Nothing in the Service shall be deemed to confer on any person any license or right with respect to any such name or mark. Customer shall not remove, alter, or obscure any proprietary notices (including copyright notices) of Iggy or its suppliers on the Service or Documentation. Unless otherwise set forth in the applicable Order, Customer hereby grants Iggy an irrevocable, perpetual, royalty-free, sublicensable, non-exclusive, non-transferable license to exercise any rights in the API Calls.
2. Ownership of Customer Data. As between Iggy and Customer, Customer owns all right, title, and interest in and to the Customer Data, including all intellectual property rights therein. Iggy shall have no rights in Customer Data other than the limited right to use such Customer Data as required for Iggy to perform the Service for Customer in accordance with these Terms.
- CONFIDENTIAL INFORMATION.
1. Definition. “Confidential Information” means all information of the disclosing party disclosed to the receiving party that is marked or identified as confidential or disclosed in circumstances that would lead a reasonable person to believe such information is confidential. The Service shall be considered Iggy’s Confidential Information, notwithstanding any failure to mark or identify it as such. Customer Data shall be considered Customer’s Confidential Information, notwithstanding any failure to mark or identify it as such. The relationship of the parties created by these Terms is not Confidential Information. Customer’s Confidential Information specifically excludes any Customer contact information collected by Iggy and used by Iggy for communications and marketing purposes (e.g., for managing Iggy’s relationship with Customer). Customer will provide Iggy accurate and current contact information for invoices and related communications.
2. Protection. The party receiving Confidential Information (“Receiving Party”) from the other party (“Disclosing Party”) shall not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by these Terms, and shall disclose the Confidential Information of the Disclosing Party only to the employees, independent contractors, or agents of the Receiving Party who have a need to know such Confidential Information for purposes of these Terms and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. The Receiving Party shall protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.
3. Exceptions. Confidential Information does not include information that: (a) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) is disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public (including any information made available on the Site that is not protected by confidentiality obligations); or (d) is independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information. In addition, the Receiving Party may disclose Confidential Information of the Disclosing Party to the extent that such disclosure is: (i) approved in writing by the Disclosing Party, (ii) necessary for the Receiving Party to enforce its rights under these Terms in connection with a legal proceeding; or (iii) required by law or by the order of a court or similar judicial or administrative body, provided that (if permitted by law) the Receiving Party promptly notifies the Disclosing Party of such required disclosure in writing prior to making such disclosure and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure. Notwithstanding the foregoing, during the Term, Iggy may use Customer’s name and logo in Iggy’s marketing materials that include a customer list unless Customer advises Iggy, in writing, that Customer does not consent to such use.
4. Feedback. “Feedback” means any Customer or User suggestions regarding new features, functionality, or performance for the Service, including suggestions submitted through the Site. Customer hereby grants to Iggy a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use such Feedback for any lawful purpose, including, without limitation the development or improvement of features or functionality for the Service. Iggy will not identify Customer as the source of any such Feedback.
1. Claims Against Customer. Iggy shall defend, at its own expense, any claim, suit, or action against Customer brought by a third party to the extent that such claim, suit, or action is based upon an allegation that the Service infringes any U.S. intellectual property rights of such third party (“Customer Claim”), and Iggy shall indemnify and hold Customer harmless from and against all losses, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) awarded in such Customer Claim or those costs and damages agreed to in a monetary settlement of such Customer Claim. The foregoing obligations are conditioned on Customer: (a) promptly notifying Iggy in writing of such Customer Claim; (b) giving Iggy sole control of the defense thereof and any related settlement negotiations, (provided that Iggy will not enter into any settlement of any claim, suit, or action that does not contain a full release of Customer’s liability without Customer’s prior written approval, which approval will not be unreasonably withheld, conditioned, or delayed); and (c) cooperating and, at Iggy’s request and expense, assisting in such defense. Notwithstanding the foregoing, Iggy shall have no obligation under this Section 10.1 or otherwise with respect to any claim based upon: (i) any use of the Service not in accordance with these Terms; (ii) any use of the Service in combination with products, equipment, software, or data not supplied by Iggy if such infringement would have been avoided without the combination with such other products, equipment, software, or data; or (iii) any Customer-provided API Calls or any modification to any part of the Service by any person other than Iggy or its authorized agents or subcontractors. If use of the Service is, or in Iggy’s opinion is likely to become, enjoined, or if use of the Service infringes or could be found to infringe the intellectual property rights of any third party, then Iggy may at its discretion either: (1) modify the Service so that it is non-infringing; (2) replace the portion of the Service that infringes or allegedly infringes with non-infringing components that is functionally equivalent; (3) obtain a license that shall enable Customer to continue use of the Service as provided hereunder; or, if none of the foregoing are commercially reasonable for Iggy, (4) terminate these Terms. In addition, if Customer receives access to the Service through an arrangement with a Channel Partner, Iggy will have no obligations under this Section 10.1 with respect to Customer. THIS SECTION 10.1 STATES IGGY’S ENTIRE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
2. Claims Against Iggy. Customer shall defend, at its own expense, any claim, suit, or action against Iggy brought by a third party to the extent that such claim, suit, or action arising from or related to any breach by Customer of Section 4 (Customer Responsibilities) (each, a “Iggy Claim”), and Customer shall indemnify and hold Iggy harmless from and against all losses, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) awarded in such Iggy Claim or those costs and damages agreed to in a monetary settlement of such Iggy Claim. The foregoing obligations are conditioned on Iggy: (a) promptly notifying Customer in writing of such Iggy Claim; (b) giving Customer sole control of the defense thereof and any related settlement negotiations (provided Customer will not enter into any settlement of any claim, suit, or action that does not contain a full release of Iggy’s liability without Iggy’s prior written approval, which approval will not be unreasonably withheld, conditioned, or delayed); and (c) cooperating and, at Customer’s request and expense, assisting in such defense. Notwithstanding the foregoing, Customer shall have no obligation under this Section 10.2 or otherwise with respect to any claim to the extent it is based upon the gross negligence or intentional misconduct of Iggy.
- LIMITATIONS ON LIABILITY.
EXCEPT WITH RESPECT TO CUSTOMER’S BREACH OF SECTION 4 (CUSTOMER RESPONSIBILITIES), A PARTY’S BREACH OF SECTION 9 (CONFIDENTIAL INFORMATION), CUSTOMER’S PAYMENT OBLIGATIONS HEREUNDER, OR A PARTY’S OBLIGATIONS UNDER SECTION 10 (INDEMNIFICATION): (A) IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (HOWEVER ARISING, INCLUDING NEGLIGENCE), OR FOR ANY LOST PROFITS, INTERRUPTED COMMUNICATIONS, OR LOST DATA, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER UNDER THESE TERMS SHALL EXCEED DAMAGES IN EXCESS OF THE GREATER OF (I) $100, AND (II) THE AMOUNT OF SERVICE FEES PAID OR PAYABLE BY CUSTOMER TO IGGY DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENTS GIVING RISE TO ANY SUCH LIABILITY.
- GENERAL PROVISIONS.
1. Governing Law. These Terms are governed by and construed in accordance with the laws of the State of California without giving effect to any rule or law that would apply the law of another jurisdiction. Both parties submit to the exclusive personal jurisdiction in California and further agree that, subject to Section 12 .2 (Arbitration Agreement), any cause of action arising under these Terms shall be brought in a court in San Francisco, California.
2. Arbitration Agreement. Please read this Section carefully. It is part of Customer’s contract with Iggy and affects Customer’s rights. It contains procedures for mandatory binding arbitration and a class action waiver.
1. Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Agreement or the use of the Services that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Unless otherwise agreed, all arbitration proceedings shall be held in English. This Arbitration Agreement applies to you and Iggy.
2. Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to Iggy should be sent to: Ask Iggy, Inc., Attn: Lindsay Pettingill, 2261 Market Street #4045, San Francisco, CA 94114, United States. After the Notice is received, you and Iggy may attempt to resolve the claim or dispute informally. If you and Iggy do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
3. Arbitration Rules. Arbitration shall be initiated through JAMS, an established alternative dispute resolution provider that offers arbitration as set forth in this section, or if JAMS is not available to arbitrate, the parties shall agree to select an alternative provider (“ADR Provider”). This Agreement and the rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Agreement (“Arbitration Rules”). The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within 100 miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise. If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time, and place of any oral hearing. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If the arbitrator grants you an award that is greater than the last settlement offer that Iggy made to you prior to the initiation of arbitration, Iggy will pay you the greater of the award or 125% of the settlement offer. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.
4. Additional Rules for Non-Appearance Based Arbitration. If non-appearance based arbitration is elected pursuant to Section 12.2(c) (Arbitration Rules) above, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
5. Time Limits. If you or Iggy pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the Arbitration Rules for the pertinent claim.
6. Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and Iggy, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the ADR Provider’s rules, and the Agreement. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and Iggy.
7. Waiver of Jury Trial. The parties hereby waive their constitutional and statutory rights to go to court and have a trial in front of a judge or a jury, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and Iggy in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, you and Iggy waive all rights to a jury trial, instead electing that the dispute be resolved by a judge.
8. Waiver of Class or Consolidated Actions. All claims and disputes within the scope of this Arbitration Agreement must be arbitrated or litigated on an individual basis and not on a class basis, and claims of more than one user cannot be arbitrated or litigated jointly or consolidated with those of any other user or customer.
9. Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
10. Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.
11. Right to Waive. Any of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
12. Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Iggy.
13. Small Claims Court. Notwithstanding the foregoing, either you or Iggy may bring an individual action in small claims court.
14. Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
15. Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark. or trade secrets shall not be subject to this Arbitration Agreement.
16. Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the state and federal courts located in San Francisco, California, for such purpose.
3. Compliance with Laws. Each party shall comply with all laws, rules, and regulations applicable to such party while performing under these Terms.
4. Severability; Waiver. If any provision of these Terms is held to be invalid or unenforceable for any reason, the remaining provisions shall continue in full force without being impaired or invalidated in any way. The parties agree to replace any invalid provision with a valid provision which most closely approximates the intent and economic effect of the invalid provision. The waiver by either party of a breach of any provision of these Terms shall not constitute an ongoing or future waiver of such breach or provision.
5. Force Majeure. Except for any payment obligations, neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder as a result of any cause which is beyond the reasonable control of such party.
6. Headings. Headings used in these Terms are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section or in any way affect these Terms.
7. Assignment. Neither party may assign or transfer, by operation of law or otherwise, these Terms, or any of its rights under these Terms to any third party without the other party’s prior written consent; except pursuant to a transfer of all or substantially all of such party’s business and assets to which these Terms relate, whether by merger, sale of assets, sale of stock, or otherwise, which shall not require the other party’s consent. Any attempted assignment or transfer in violation of foregoing shall be void. The Terms will inure to the benefit of and be binding upon any permitted successors or assigns.
8. Independent Contractors. You and Iggy are independent contractors, and no agency, partnership, joint venture, or employee-employer relationship is intended or created by these Terms. Neither party shall have the power to obligate or bind the other party.
9. Notice. Any notices to Iggy required or permitted hereunder shall sent to Iggy at the address below, or at such other address as Iggy shall specify in writing. Any notices to Customer required or permitted hereunder shall be given at the address or email address provided by Customer in the Order, or at such other address or email address as Customer shall specify in writing. Such notice shall be deemed given upon personal delivery; if sent by email to Customer, one (1) day after being sent (unless a system rejection is received by the sending party within such time); or if sent by certified or registered mail, postage prepaid, five (5) days after the date of mailing.
Ask Iggy, Inc.
Attn: Lindsay Pettingill
2261 Market Street #4045
San Francisco, CA 94114
10. Customer Communication. Customer understands and agrees that the Service requires periodic email communication including password resets, notifications, and other critical emails. Further, Customer understands and agrees that without email communication Customer will not be able to receive customer support, maintenance notifications, upgrade announcements, and other critical information to operate the Service. As a result, by purchasing access to the Service, Customer is consenting to Iggy’s email communications with (and notices sent to) administrative contacts supplied by Customer.
11. Government End Users. The Service and Documentation are “commercial items” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Service and Documentation with only those rights set forth herein.
12. Entire Agreement. These Terms, including all applicable Orders, sets forth the entire understanding and agreement of the parties and supersedes all oral or written agreements or understandings between the parties as to the subject matter hereof. However, if you and Iggy have entered a written and pen-signed “Subscription Agreement,” that agreement will apply and govern the relationship between you and Iggy, instead of these Terms. Any standard terms associated with a Customer purchase order, Customer ordering document, or Customer invoice submission system or other portal are hereby rejected (regardless of any electronic or online indication of agreement to the same), will be not binding on the parties, and will be of no consequence whatsoever in interpreting the parties’ legal rights and responsibilities as they pertain to these Terms (including any billing or payment requirements) or the Service. To the extent of any conflict between the provisions of these Terms of Service and the provisions of any Order, the provisions of these Terms of Service will govern, except that those provisions of an Order that expressly identify the conflicting provision of these Terms of Service to be superseded will govern (solely to the extent of the conflict). Neither party is relying upon any warranties, representations, assurances, or inducements not expressly set forth herein.