Last Revised: February 3, 2021
The Terms of Service (“Agreement”) are offered to you by Chauncey Technologies LLC and its corporate affiliates as applicable (“Chauncey”, “We”, “Us”) and govern the person or entity agreeing to this Agreement (“Customer”, “You”) and Your use of the Service (as defined below) including any use during free trials provided by Chauncey. You understand and agree that Chauncey will treat your use of the Service as acceptance of the Terms from that point onward. This Agreement is effective on the earliest of (a) the date Customer signs up to the Service; (b) Customer entering into an Order or similar form referencing or otherwise incorporating this Agreement; or (c) Customer’s use of the Service (the “Effective Date”).
You must be at least 18 years of age or the age of majority in your jurisdiction to access and use the Service. You affirm that you are at least 18 years old or the applicable age of majority in your jurisdiction, and fully able and competent to enter the terms of this Agreement.
If you are entering into this Agreement on behalf of your organization, that organization is deemed to be the Customer and you represent that you have the power and authority bind that organization to this Agreement.
In addition to definitions set forth elsewhere in this Agreement, the following terms have the following meanings:
“Affiliate” means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Authorized User” means an individual who is authorized by You to use the Service, to whom You (or We at Your request) have supplied access credentials, and who has permissions to access the Service, create and edit Controllers, connect Controllers to Client Applications and share or publish Controllers live to the web.
“Beta Service” means certain features, technologies, and services that are not generally available to Our customers, as updated from time to time.
“Client Application” means an application created by or for You using a Third Party Service such as Unreal Engine, Unity, or WebGL.
“Connections” means the number of links [created with the Service] between Controllers and Client Applications.
“Controller” means a web user interface configuration that is intended to externally interact with a Client Application and is created by an Authorized User using the Service.
“Customer Content” means information, data, and other content, in any form or medium, that Customer or an Authorized User creates or uploads using the Service, including Controllers, Client Applications, and Customer or third party assets that Customer or its Authorized Users upload or otherwise provide to the Service. For the avoidance of doubt, Customer Content does not include any information reflecting the access or use of the Service by or on behalf of Customer or any Authorized User.
“Guest” means a user who has the ability to operate a Live Controller in connection with a Client Application, but who is not an Authorized User.
“Documentation” means the online documentation and Service feature descriptions, as updated from time to time.
“Live Controller” means a Controller that has been published to a web URL.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs, and trojan horses.
“Order” means an online confirmation page or an ordering document specifying a Subscription to the Service or Premium Support, or both, to be provided under this Agreement. For clarity, Orders may include online requests by You and confirmed by Us for access to the Service, subject to the terms of this Agreement.
“Our” means Chauncey’s and “Your” means Customer’s.
“Our Materials” means the Service, Documentation, and Our Systems and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided, developed or used by Us or any Subcontractor in connection with the Service or otherwise comprise or relate to the Service or Our Systems, including any information, data, or other content derived from Chauncey’s monitoring of Customer’s or any Authorized User’s access to or use of the Service, but not including Customer Content.
“Our Systems” means the information technology infrastructure used by or on behalf of Chauncey in providing the Service, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Us or using third-party services.
“Purchased Service” means the Service that You purchase in an Order specifying a paid Subscription, as distinguished from those provided pursuant to a free trial or under a free Subscription.
“Service” means the web-based service platform that permits the creation and publication of Controllers and connectivity to Client Applications, including any changes or updates provided to You, as described in the applicable Order, but does not include Client Applications and Third Party Services themselves.
“Subscription” means access to the Service as requested by You as specified in the applicable Order.
“Subscription Term” means the period of time during which Authorized Users are permitted to use the Service as set forth in the applicable Order along with any renewals as specified in Section 12.2 (Term of Purchased Subscriptions).
“Third-Party Materials” means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment, or components of or relating to the Service that are not proprietary to Chauncey.
2.1 Trial Accounts. Trial accounts for a Subscription to the Service may be requested and granted by Chauncey on a case-by-case basis either free of charge or at a discounted rate. Trial account Subscriptions are subject to the terms of this Agreement, and its term will continue until the earlier of (a) the end of the free trial period as specified by Us, or (b) the start date of any Subscription ordered by You. Additional trial terms and conditions may appear on an Order and may be incorporated into this Agreement by reference.
2.2 Beta Service. We may invite You to use one or more Beta Services under the terms of this Agreement. You may accept or decline any such Beta Service in Your sole discretion. Any Beta Service will be clearly designated as beta, pilot, early-access, limited release, developer preview, non-production, evaluation or by a description of similar import. Beta Services are for evaluation purposes and not for production use, are not considered “Service” under this Agreement, are not supported, and may be subject to additional terms. Unless otherwise stated by Us, any Beta Service trial period will expire upon the date that a version of the Beta Service becomes generally available. You acknowledge and agree that a Beta Service may not be as reliable as the Service. We may discontinue any Beta Service at any time in Our sole discretion and may never make features, technologies, or services of a Beta Service generally available.
3.1 Provision of the Service. We will use commercially reasonable efforts to make the Service available to Customer and its Authorized Users pursuant to this Agreement and the applicable Order Form. Notwithstanding the foregoing, the Service may not be available due to planned downtime (which We will schedule to the extent practicable during low usage hours such as nights or weekends).
3.2 Access and Use. Chauncey hereby grants to Customer a non-exclusive, non-sublicensable, non-transferrable (except in compliance with Section 14.3), worldwide right to access and use, and permit Authorized Users to access and use, the Service solely for Customer’s internal business operations in accordance with the terms of this Agreement.
3.3 Documentation License. Chauncey hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 14.3) license to use, and permit Authorized Users to use, the Documentation solely for Customer’s internal business purposes.
3.4 Changes to the Service and Documentation. We reserve the right, in our sole discretion, to make changes to the Service, and Documentation at any time that We deem necessary or useful to (a) maintain or enhance: (i) the quality or delivery of services to Our customers; (ii) the competitive strength of or market for Our services; or (iii) the Service’s cost efficiency or performance; or (b) to comply with applicable Law.
3.5 Suspension or Termination of Service. We may, directly or indirectly, and by use of any lawful means, suspend, terminate, or otherwise deny Customer’s, any Authorized User’s, or any other Person’s access to or use of all or any part of the Service, without incurring any resulting obligation or liability, if: (a) Chauncey receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Chauncey to do so; or (b) Chauncey believes, in its good faith and reasonable discretion, that: (i) Customer or any Authorized User has failed to comply with any term of this Agreement, including payment obligations, or accessed or used the Service beyond the scope of the rights granted or for a purpose not authorized under this Agreement; (ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with any of the Service; or (iii) this Agreement expires or is terminated. This Section 3.6 does not limit any of Our other rights or remedies, whether at law, in equity, or under this Agreement.
3.7 Standard Support. Each Subscription includes standard support services that Chauncey makes available as a part of the offering (“Standard Support”).
3.8 Premium Support Services. Chauncey may offer support services beyond the scope of what is included in standard support (e.g., customization, training, assistance with creation of Controllers) at an additional cost (“Premium Support”).
3.9 Subcontractors. We may engage third parties (each, a “Subcontractor”) to perform Our obligations under this Agreement in Our discretion, but We remain responsible for performance of any such Subcontractor.
4.1 Subscriptions. Unless otherwise provided in the applicable Order, (a) access to the Service is acquired by Customer with a Subscription with fees for the applicable Subscription plan, (b) Subscriptions have a monthly or annual Subscription Term, (c) Subscription plans may be upgraded during the Subscription Term with the term for such upgraded plan prorated for the portion of that Subscription Term remaining at the time the mid-term subscription plan is upgraded, and (d) access for all Authorized Users terminates on the same date as the expiration of the Subscription Term.
4.2. Usage Limitations. The Service is subject to usage limitations as specified in the applicable Order(s) (e.g., Users, Connections, Bandwidth, etc.) (the “Usage Limitations”).
4.3 Increases and Decreases. Customer may increase Usage Limitations during the then-current Subscription Term by submitting a request to Chauncey or creating a new Order and paying applicable fees. Customer may submit a request to decrease Usage Limitations to take effect upon the next renewal of the Subscription Term with fees adjusted accordingly.
4.4 Your Responsibilities. You will (a) be responsible for Authorized Users’ compliance with this Agreement and for all activities that occur through Your Authorized Users’ and Guests’ use of the Service and Client Applications, including the restrictions set forth in Section 4.5 below, (b) be responsible for the accuracy, quality and legality of Customer Content, (c) use reasonable efforts to prevent unauthorized access to or use of the Service, and notify Us promptly of any such unauthorized access or use, (d) use the Service and only in accordance with this Agreement and applicable laws and government regulations, and (e) respond to questions and complaints relating to Your, Your Authorized Users’ and Guests’ use of the Service and use reasonable efforts to resolve support issues before escalating them to Us.
4.5 Usage Restrictions. You will not, any You will not permit any third party or Authorized User to, (a) use the Service or Beta Service except as expressly authorized in this Agreement, (b) make the Service available to, or use the Service or Beta Service for the benefit of, anyone other than You, (c) create shared accounts or generic identifications and passwords to any Service, (d) sell, resell, license, sublicense, distribute, rent or lease the Service, or include the Service in a service bureau or outsourcing offering, (e) use the Service or Beta Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy or intellectual property rights, (f) use the Service or Beta Service to store or transmit Malicious Code, (g) interfere with or disrupt the integrity or performance of the Service or Beta Service or third-party data contained therein, including without limitation any anomalous use of the Service or Beta Service, (h) attempt to gain unauthorized access to the Service or Beta Service or its related systems or networks, (i) permit direct or indirect access to or use of the Service or Beta Service in a way that circumvents a the Usage Limitations, (j) copy the Service or Beta Service or any of their respective parts, features, functions, or user interfaces, (k) frame or mirror any part of the Service or Beta Service, other than framing on Your own intranets or otherwise for Your own internal business purposes or as permitted in these Terms, (l) access the Service or Beta Service in order to build a competitive product or service, (m) reverse engineer the Service or Beta Service any of its associated software or the (to the extent such restriction is permitted by law), (n) remove any proprietary notices from the Service, Beta Service, or Documentation, or (o) access the Service or for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
4.6 Bandwidth Restrictions. Chauncey has the right, but not the obligation, to (a) monitor traffic on its platform through the Service; and (b) monitor Customer’s bandwidth utilization and to limit excessive use of bandwidth as determined by Chauncey. If an account reaches or exceeds its monthly bandwidth limit, Your access and stored data may be restricted. For reference, Subscriptions have an associated monthly bandwidth limit as specified on the in the Usage Limitations and pricing page of Chauncey’s website (https://chauncey.live/pricing).
4.7 Final Product and End Users Are Your Responsibility. You are solely responsible for the display and use of any Controllers and Client Applications created through the use of the Service or Beta Service. You understand that you may have Your own Guests, visitors, customers and users that access your published content (“End Users”). You understand and agree that (a) Your content, website, and Your End Users are Your responsibility; (b) You are solely responsible for providing products, services and support to your End Users; and (c) You are solely responsible for compliance with any laws or regulations related to the Client Applications and End Users. We are not liable for, and will provide you with any legal advice regarding, your website, Client Applications, or your End Users.
4.8 Third Party Services and Sites. In order to aid in the creation of Client Applications, the Service integrates with one or more third-party services such as game engines and applications not owned and operated by Chauncey (e.g., Unreal Engine) (each, a “Third Party Service”). Third Party Services may make content, products or services available to you and be subject to their own terms and policies, including payment obligations to the Third Party Service providers. Your use of any Third Party Services will be governed by those terms and policies and you are solely responsible for compliance with those terms and policies. We do not control Third Party Services, and we are not liable for Third Party Services or for any transaction you may enter into with them, or for what they do. By using the Service, You acknowledge and agree that Chauncey is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, security, legality, or any other aspect of using the Third Party Services or Third Party Materials. You also agree that we may, at any time and in our sole discretion, and without any notice to you, suspend, disable access to or remove any Third Party Services. We are not liable for any such suspension, disabling or removal, including without limitation for any loss of profits, revenue, data, goodwill or other intangible losses, or business disruption, costs or expenses you may incur or otherwise experience as a result (except where prohibited by applicable law).
5.1 Protection of Customer Content. We will maintain industry-standard administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of Customer Content. Those safeguards will include, but will not be limited to, measures for preventing unauthorized access, use, modification or disclosure of Customer Content by Our personnel.
5.2 Customer Control and Responsibility. Customer has and will retain sole responsibility for: (a) all Customer Content, including its content and use; (b) all information, instructions, and materials provided by or on behalf of Customer or any Authorized User in connection with the Service; (c) Customer’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services (“Customer Systems”); (d) the security and use of Customer’s and its Authorized Users’ access credentials; and (e) all access to and use of the Service directly or indirectly by or through the Customer Systems or its or its Authorized Users’ access credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use. Without limiting the foregoing, the Service does not replace the need for Customer to maintain regular data backups or redundant data archives. We have no obligation or liability for any loss, alteration, destruction, damage, corruption, or recovery of Customer Content.
5.3 Removal of Customer Content. Chauncey reserves the right to review Customer Content to determine whether it infringes third party intellectual property or other rights or otherwise violates our policies, and to remove or refuse to display content that we reasonably believe is infringing or otherwise violates our policies. However, we do not warrant that we will review, screen or remove such content, and have no obligation to You to do so.
6.1 Fees. For any paid Subscription, Premium Service or other service You purchase from Us, You will pay all fees specified in the applicable Order(s). Except as otherwise specified herein or in an Order, fees for the Service are based on the Subscription purchased payment obligations are non-cancelable and fees paid are non-refundable during the Subscription Term.
6.2 Invoicing and Payment. You will provide Us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You (a) authorize Us or a Payment Processor to automatically charge such credit card for (i) all Purchased Services listed in the Order for the initial Subscription Term and any renewal Subscription Term(s) as set forth in Section 12.2 (Term of Purchased Subscriptions) and (ii) any Premium Support listed in the Order, and (b) will ensure that the credit card information provided to Us is current and valid and promptly update the information if the credit card expires. Charges will be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order. Unless otherwise stated in the Order, invoiced charges are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.
6.3 Overdue Charges. If any undisputed invoiced amount is not received by Us by the due date, then without limiting Our rights or remedies, (a) We may charge interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, (b) We may condition future subscription renewals and Order on payment terms shorter than those specified in Section 6.2 (Invoicing and Payment), and (c) We may require You to pay any collections or legal fees or costs incurred by Us in order to collect payment of the corresponding undisputed invoiced amount.
6.4 Payment Disputes. If You dispute any invoiced amounts, You will promptly provide Us with notice of the disputed amounts along with supporting documentation within 30 days of Your receipt of the invoice, and the parties will cooperate diligently to resolve such dispute in good faith. We will not exercise Our rights under Section 6.3 (Overdue Charges) or 6.4 (Suspension of Service and Acceleration) above if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute, provided that You remit payment for any undisputed amounts in a timely manner.
6.6 Taxes. Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this Section 6.6, We will invoice You and You will pay that amount unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against Us based on Our income, property, and employees.
6.7 Future Functionality. You agree that Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Us regarding future functionality or features.
6.9 Fees For Third Party Services. For any Third Party Services purchased along with the Service may be subject to different payment terms, refund, or other policies, and such Third Party Services may be non-refundable. The purchase terms and conditions for such Third Party Services may be displayed during the purchase process, such as through a link to the purchase terms and conditions. It is Your responsibility to verify Your ability to purchase, cancel or obtain a refund for a Third Party Service. We do not offer refunds for purchases of Third Party Services.
7.1 Our Materials. Subject to the limited rights expressly granted hereunder, We retain all of Our rights, title, and interest in and to Our Materials and all of Our intellectual property rights therein. With respect to Third-Party Materials, the applicable third-party providers own all right, title, and interest, including all Intellectual Property Rights, in and to the Third-Party Materials. No rights are granted to You hereunder other than as expressly set forth herein or, with respect to Third-Party Materials, the applicable third-party license.
7.2 Customer Content. As between You and Us, You are and will remain the sole and exclusive owner of all right, title, and interest in and to all Customer Content, including all Intellectual Property Rights therein, subject to the rights and permissions granted in Section 7.3.
8.1 Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Our Confidential Information includes Our Materials; and Confidential Information of each party includes the terms and conditions of this Agreement and all Order (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a third party without breach of any obligation owed to the Disclosing Party, or (d) was independently developed by the Receiving Party.
8.2 Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) (a) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (b) except as otherwise authorized by the Disclosing Party in writing, disclose Confidential Information of the Disclosing Party only to those of its and its Affiliates’ employees, contractors and advisors who need that access for purposes consistent with this Agreement and who are bound by confidentiality obligations to the Receiving Party at least as protective as those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this Section 8.2.
8.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law or by the order of a court or similar judicial or administrative body to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
9.1 Representations. Each party represents and warrants to the other party that it has validly entered into this Agreement and has the legal power to do so.
9.2 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE SERVICE, STANDARD SUPPORT, PREMIUM SUPPORT, AND ANY BETA SERVICES ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. IN ADDITION, WHILE THE CHAUNCEY ATTEMPTS TO PROVIDE A GOOD USER EXPERIENCE, WE CANNOT AND DO NOT REPRESENT OR WARRANT THAT THE SERVICES WILL ALWAYS BE SECURE OR ERROR-FREE OR THAT THE SERVICES WILL ALWAYS FUNCTION WITHOUT DELAYS, DISRUPTIONS, OR IMPERFECTIONS. THE FOREGOING DISCLAIMERS SHALL APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW.
10.1 Indemnification by Us. We will defend You against any claim, demand, suit or proceeding made or brought against You by a third party alleging that the use of the Service in accordance with this Agreement infringes or misappropriates such third party’s intellectual property rights (a ”Claim Against You”), and will indemnify You from any damages, attorney fees and costs finally awarded against You as a result of, or for amounts paid by You pursuant to a settlement of, a Claim Against You, provided You (a) promptly give Us written notice of the Claim Against You, (b) give Us sole control of the defense and settlement of the Claim Against You (except that We may not settle any Claim Against You unless it unconditionally releases You of all liability), and (c) give Us all reasonable assistance, at Our expense. You may participate in the defense and settlement of the Claim Against You at Your expense. If We receive information about an infringement or misappropriation claim related to a Service, We may in Our discretion and at no cost to You (i) modify the Service so that it no longer infringes or misappropriates, (ii) obtain a license for Your continued use of that Service in accordance with this Agreement, or (iii) terminate Your Subscriptions for that Service upon 30 days’ written notice and refund You any prepaid fees covering the remainder of the Subscription Term for the terminated subscriptions. The above defense and indemnification obligations do not apply to the extent a Claim Against You arises from Your breach of this Agreement or otherwise from Your gross negligence or willful misconduct.
10.2 Indemnification by You. You will defend Us against any claim, demand, suit or proceeding made or brought against Us by a third party, including any Authorized User or End User (a) alleging that Customer Content or any use of the Customer Content in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights or rights of privacy or publicity; (b) based on Your or Your employees’, representatives’, and agents’, Authorized Users’ and End Users’ (i) gross negligence or willful misconduct, (ii) violation of any applicable laws or regulations relating to the Client Applications resulting from the use of the Service or Beta Service, (ii) use of the Service or Beta Service in a manner not authorized by this Agreement, (iv) use of the Service or Beta Service in combination with data, software, hardware, equipment, or technology not provided by Us or authorized by Us in writing; or (c) alleging personal injury or property damage caused by Customer or any Authorized User in connection with the Service (collectively, a ”Claim Against Us”), and will indemnify Us from any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us pursuant to a settlement of, a Claim Against Us, provided We (a) promptly give You written notice of the Claim Against Us, (b) give You sole control of the defense and settlement of the Claim Against Us (except that You may not settle any Claim Against Us unless it unconditionally releases Us of all liability), and (c) give You all reasonable assistance, at Your expense. We may participate in the defense and settlement of the Claim Against Us at Our expense.
10.3 Exclusive Remedy. This Section 10 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 10.
11.1 Limitation of Liability. EXCEPT FOR ANY BREACH OF SECTION 8 (CONFIDENTIALITY) OR EITHER PARTY’S INDEMINIFICATION OBLIGATIONS, OR YOUR OBLIGATIONS UNDER SECTION 4.5 (USAGE RESTRICTIONS) OR SECTION 6 (FEES AND PAYMENT FOR PURCHASED SERVICES), NEITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE GREATER OF THE AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT OR SERIES OF RELATED INCIDENTS OR $100. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT.
11.2 Exclusion of Consequential and Related Damages. EXCEPT FOR ANY BREACH OF SECTION 8 (CONFIDENTIALITY) OR YOUR OBLIGATIONS UNDER 4.5 (USAGE RESTRICTIONS), IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
12.1 Term of Agreement. This Agreement commences on the date You first accept it and continues until all Subscription Terms hereunder have expired or have been terminated.
12.2 Term of Purchased Subscriptions. The Subscription Term is as specified in the applicable Order Form. Subscriptions automatically renew for additional periods equal to the expiring Subscription Term or one year (whichever is shorter), unless otherwise set forth in the applicable Order or either party gives the other notice of non-renewal at least 30 days before the end of the relevant Subscription Term. The pricing during any automatic renewal term, as described in the Order, will be the same as that during the immediately prior term unless We have given You written notice of a pricing increase at least 60 days before the end of that prior term, in which case the pricing increase will be effective upon renewal and thereafter.
12.3 Termination. A party may terminate this Agreement (a) 30 days after providing written notice to the other party of a material breach of its obligations under this Agreement if such breach remains uncured at the expiration of such 30-day period, (b) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, or (c) upon 10 days’ written notice to the other party if the other party is in material breach of this Agreement more than two times notwithstanding any cure of such breaches.
12.4 Refund or Payment upon Termination. If You chose to terminate, You won't be issued a refund except in Our sole discretion, or if legally required. Because Beta Services and trial periods may be provided at no charge to You, the applicable statutory rights of cancellation may not result in a refund.
12.5 Customer Content Deletion. After the effective date of termination or expiration of this Agreement, We will have no obligation to maintain or provide Customer Content, and may, in Our sole discretion, delete or destroy all copies of Customer Content in Our systems or otherwise in Our possession or control, unless legally prohibited. Notwithstanding the foregoing, for any Purchased Service, We may choose to keep certain Customer Content available for electronic retrieval for a reasonable time period after such termination or expiration.
12.6 Surviving Provisions. Each party is responsible for any obligations to the other party that arose prior to any termination or expiration of this Agreement. In addition, except as otherwise set forth in this Agreement, Section 7 (Intellectual Property Rights), Section 8 (Confidentiality), Section 9. (Warranties), Section 10 (Mutual Indemnification), Section 11 (Limitation of Liability), Section 12.4 (Refund or Payment upon Termination), Section 12.5 Customer Content Deletion, this Section 12.6 (Surviving Provisions), Section 13 (Notices, Governing Law and Dispute Resolution), and Section 14 (General Provisions) survive any termination or expiration of this Agreement.
13.1 Manner of Giving Notice. All notices, permissions, and approvals hereunder must be in writing and will be deemed given upon: (i) personal delivery, (ii) the third business day after mailing, (iii) the second business day after sending via an overnight delivery service; or (iii) the first business day after sending by email (provided email is not sufficient for notices of material breach, termination, or an indemnifiable claim). Notices to Us shall be addressed to:
Chauncey Technologies, LLC
Address: 3800 Venice Blvd. STE 206. Los Angeles, California 90034
Billing-related notices to You shall be addressed to the relevant billing contact designated by You. All other notices to You shall be addressed to the Authorized User designated by You, in writing, by like notice
13.2 Governing Law and Venue. This Agreement and any disputes arising under it will be governed by the laws of the State of California without regard to its conflict of laws provisions, and each party consents to the personal jurisdiction and venue of the state or federal courts located in Los Angeles, California. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
13.3 Informal Dispute Resolution and Arbitration. The parties acknowledge that most disputes can be resolved without resort to litigation. The parties will use their best efforts to settle any dispute directly through consultation with each other before initiating a lawsuit or arbitration. If, after good faith negotiations the parties are unable to resolve the dispute, any and all disputes arising out of or in any way relating to this Agreement, including without limitation its existence, validity or termination, shall be resolved according to California law and exclusively by binding arbitration before a single arbitrator with the Judicial Arbitration and Mediation Service (“JAMS”) and pursuant to the then existing arbitration rules at JAMS.
If the parties cannot agree upon selection of an arbitrator, then JAMS shall appoint an arbitrator experienced in the enterprise software industry. The place of the arbitration will be San Francisco, California unless otherwise agreed upon by the parties. The arbitration will be conducted in English. The arbitrator shall provide detailed written findings of fact and conclusions of law in support of any award. Judgment upon any such award may be enforced in any court of competent jurisdiction. The existence of a dispute, submission to arbitration, and any arbitration award under this Agreement is deemed the Confidential Information of both parties.
The parties further agree that the arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. If any court or arbitrator determines that the class action waiver set forth herein is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the portions of this Section 13.3 mandating arbitration shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
You may opt out and not be bound by the arbitration and class action waiver provisions by sending written notice to Chauncey. Any such notice must be given within 30 days of the Effective Date. If Customer opts out of arbitration, Chauncey also will not be bound to arbitrate.
Notwithstanding anything to the contrary in this Section 13, (a) either party shall be entitled to seek injunctive relief as set forth in Section 13.4 (Equitable Relief) below and to stop unauthorized use of the Service or infringement of Intellectual Property Rights and (b) any disputes, claims, or controversies concerning either party’s Intellectual Property Rights or claims of piracy or unauthorized use of the Service shall not be subject to arbitration but instead must be heard in state or Federal court in Los Angeles, California.
13.4 Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 8 (Confidentiality) or, in the case of Customer, Section 4.5 (Usage Restrictions), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
14.1 Export Compliance. The Service, other technology We make available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. You will not permit Authorized Users to access or use the Service in a U.S.-embargoed country, or permit access or use by any denied party, or otherwise in violation of any U.S. export law or regulation.
14.2 Entire Agreement and Order of Precedence. This Agreement, including any Order and addenda or exhibits incorporated therein, is the entire agreement between You and Us regarding the subject matter hereof and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No waiver of any provision of these Terms will be effective unless in writing and signed by the party against whom the waiver is to be asserted. The parties agree that any term or condition stated in Your purchase order or in any other of Your order documentation (excluding Order) during the term of this Agreement is void. In the event of any conflict or inconsistency among the following documents, the order of precedence will be: (1) this Agreement, (2) the applicable Order, and (3) the Documentation.
14.3 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Orders), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets to which this Agreement relates. Notwithstanding the foregoing, if a party merges with, is acquired by, sells substantially all or substantially all of its assets to, or otherwise undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice.
14.4 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
14.5 Publicity. Unless otherwise set forth on an Order, Chauncey may use Customer’s name, logo and marks to identify Customer as a Chauncey customer on Chauncey’s website and marketing, public relations and materials for current or prospective investors.
14.6 Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
14.7 Waiver. No failure or delay by either party in exercising any right under this Agreement constitutes a waiver of that right.
14.8 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
14.9 Changes. Chauncey may revise this Agreement from time to time by posting a revised version on its website. Any such revised version will take effect as of the date of posting of the revised version or such later date set forth in a notice to you. Notwithstanding the foregoing, if You do not agree to the revised version, You may provide us written notice of non-renewal under Section 12.2 (Term of Purchased Subscriptions) within 30 days of the effective date of the revised version and such revised version will not apply to Your access and use of the Service through the remainder of Your then-current Subscription Term.
14.10 Force Majeure. Except for payment obligations, neither party will be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, an act of war or terrorism, riot, labor condition, governmental action, Internet service provider failure or delay, or denial of service attack) that was beyond the party’s reasonable control.
14.11 US Government Rights. The Documentation, and each software component that We use to provide the Service is a “commercial item” 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. If Customer is an agency of the US Government or any contractor therefor, Customer only receives those rights with respect to the Service, Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government users and their contractors.
Please contact us at email@example.com to report any violations of these Terms of Service or to pose any questions regarding these Terms of Service or the Service.