Last modified: Feb 8, 2022
This Services Agreement (this “Agreement”) is a binding contract between you (“Customer,” “you,” or “your”) and SessionFuse Inc., a Delaware corporation (“Provider,” “we,” or “us”). This Agreement governs your access to and use of the Cloud Services.
THIS AGREEMENT TAKES EFFECT WHEN YOU CLICK THE “I ACCEPT” BUTTON BELOW OR BY ACCESSING OR USING THE CLOUD SERVICES (the “Effective Date”). BY CLICKING ON THE “I ACCEPT” BUTTON BELOW OR BY ACCESSING OR USING THE CLOUD SERVICES YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND, IF ENTERING INTO THIS AGREEMENT FOR AN ORGANIZATION, THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ORGANIZATION; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, PLEASE SELECT THE “I DECLINE” BUTTON BELOW. IF YOU DO NOT ACCEPT THESE TERMS, YOU MAY NOT ACCESS OR USE THE CLOUD SERVICES.
Audio Content includes but is not limited to M4A, AAC, MP3, WAV, AIFF, and FLAC file formats. These files are the property of the creator and are not considered Customer Data for the purpose of this agreement. “Audio Content” does not include data related to the production of such files, such as the time spent on production of files, which samples were used by the file creator, or other tools used for producing files.
Authorized User means Customer and Customer’s employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Cloud Services under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the Cloud Services has been purchased hereunder.
Cloud Services means the services provided by Provider under this Agreement that are detailed on Provider’s website available at hitsend.io/terms and reflected in the Customer’s order.
Customer Data means, other than Aggregated Statistics and Audio Content, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or any other Authorized User through the Cloud Services.
Documentation means Provider’s guides relating to the Cloud Services provided by Provider to Customer either electronically or in hard copy form/end user documentation relating to the Cloud Services available at support.hitsend.io.
Provider IP means the Cloud Services, the Documentation, and all intellectual property provided to Customer or any other Authorized User in connection with the foregoing. For the avoidance of doubt, the Provider IP includes Aggregated Statistics and any information, data, or other content derived from Provider’s monitoring of Customer’s access to or use of the Cloud Services, but does not include Customer Data.
Third-Party Products means any products, content, services, information, websites, or other materials that are owned by third parties and are incorporated into or accessible through the Cloud Services.
Subject to and conditioned on your submission of payment information and continual payment of Fees and compliance with all other terms and conditions of this Agreement, Provider hereby grants you a revocable, non-exclusive, non-transferable, non-sublicensable, limited right to access and use the Cloud Services during the Term solely for your internal business operations by Authorized Users in accordance with the terms and conditions herein. Provider shall provide you the necessary passwords and access credentials to allow you to access the Cloud Services.
Subject to the terms and conditions contained in this Agreement, Provider hereby grants you a non-exclusive, non-sublicensable, non-transferable license for Authorized Users to use the Documentation during the Term solely for your internal business purposes in connection with use of the Cloud Services.
Use of the Cloud Services may require or include use of downloadable software. Provider grants you a non-transferable, non-exclusive, non-assignable, limited right for Authorized Users to use downloadable software we provide as part of the Cloud Services. Any Third-Party Products that consist of downloadable software are subject to the terms of Section 3(e).
You shall not, and shall not permit any Authorized Users to, use the Cloud Services or Documentation for any purposes beyond the scope of the access granted in this Agreement. You shall not at any time, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Cloud Services, any software component of the Cloud Services or Documentation; (ii) rent, lease, lend, sell, license, assign, distribute, publish, or otherwise make available the Cloud Services or Documentation except as expressly permitted under this Agreement; (iii) attempt to derive or gain access to any software component of the Cloud Services, in whole or in part; (iv) remove any proprietary notices from the Cloud Services or Documentation; or (v) use the Cloud Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
Notwithstanding anything to the contrary in this Agreement, Provider may monitor Customer’s use of the Cloud Services and collect and compile data and information related to Customer’s use of the Cloud Services to be used by Provider in an aggregated and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Cloud Services (“Aggregated Statistics”). As between Provider and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Provider. You acknowledge that Provider may compile Aggregated Statistics based on Customer Data input into the Cloud Services. You agree that Provider may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Customer or Customer’s Confidential Information.
Provider reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Provider IP.
Notwithstanding anything to the contrary in this Agreement, Provider may temporarily suspend Customer’s and any Authorized User’s access to any portion or all of the Cloud Services if: (i) Provider reasonably determines that (A) there is a threat or attack on any of the Provider IP; (B) Customer’s or any Authorized User’s use of the Provider IP creates potential for disruption or a security risk to the Provider IP or to any other customer or vendor of Provider; (C) Customer, or any Authorized User, is using the Provider IP for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Provider’s provision of the Cloud Services to Customer or any Authorized User is prohibited by applicable law; (ii) any vendor of Provider has suspended or terminated Provider’s access to or use of any third-party services or products required to enable Customer to access the Cloud Services; or (iii) in accordance with Section 5 or Section 9 (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). Provider shall use commercially reasonable efforts to notify Customer by email within 14 calendar days of any Service Suspension to Customer and to provide updates regarding resumption of access to the Cloud Services following any Service Suspension. Provider shall use commercially reasonable efforts to resume providing access to the Cloud Services as soon as reasonably practicable after the event giving rise to the Cloud Services Suspension is cured. Provider will have no liability for any consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
The Cloud Services may not be used for unlawful, fraudulent, offensive, or obscene activity, as further described and set forth in Provider’s acceptable use policy (the “AUP”) located at hitsend.io/terms, as may be amended from time to time, which is incorporated herein by reference. You will comply with all terms and conditions of this Agreement, all applicable laws, rules, and regulations, and all guidelines, standards, and requirements that may be posted on hitsend.io/terms from time to time, including the AUP.
You are responsible and liable for all uses of the Cloud Services and Documentation resulting from access provided by you, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, you are responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by you will be deemed a breach of this Agreement by you. You shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Cloud Services and shall cause Authorized Users to comply with such provisions.
You hereby grant to Provider a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display Customer Data and perform all acts with respect to Customer Data as may be necessary for Provider to provide the Cloud Services to you, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within any Aggregated Statistics. You will ensure that Customer Data and any Authorized User’s use of Customer Data will not violate any policy or terms referenced in or incorporated into this Agreement or any applicable law. You are solely responsible for the development, content, operation, maintenance, and use of Customer Data.
You are responsible for keeping your passwords and access credentials associated with the Cloud Services confidential. You will not sell or transfer them to any other person or entity. You will promptly notify us about any unauthorized access to your passwords or access credentials.
The Cloud Services may permit access to Third-Party Products. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions presented to you for acceptance within the Cloud Services by website link or otherwise. If you do not agree to abide by the applicable terms for any such Third-Party Products, then you should not install, access, or use such Third-Party Products.
Subject to the terms and conditions of this Agreement, Provider shall use commercially reasonable efforts to make the Cloud Services available in accordance with the service levels available at hitsend.io/plan (“Service Levels”).
In accordance with the Service Levels available at hitsend.io/plan, Provider will offer up to one month in service credits (“Service Credits”) for lost access to the Cloud Services. To receive Service Credits, contact support@hitsend.io and file a claim. Provider shall respond to this claim in 30 calendar days. For more information, please visit hitsend.io/terms. Provider reserves the right to adjust Service Credit rates. If you accept Service Credits, you voluntarily agree to waive all claims against Provider relating to your lost access to the Cloud Services.
The monthly fee and any other charges you may incur in connection with your use of the Cloud Services, such as taxes and possible transaction fees, will be charged to your account on the specific billing date indicated on a users account billing plan each month. Monthly fees are fully earned upon payment. In some cases your payment date may change, for example if your account has not successfully settled or if your paid membership began on a day not contained in a given month. Visit app.hitsend.io/settings/billing to see your next payment date. We may authorize your account in anticipation of membership or service-related charges through various methods, including authorizing it up to approximately one month of service as soon as you register. In some instances, your available balance or credit limit may be reduced to reflect the authorization during your free trial period.
Customer shall pay Provider the fees as described on hitsend.io/plan as of the date of payment (“Fees”). Customer shall make all payments hereunder in US Dollars, Pesos, Canadian Dollars, Euros, Pounds, or Australian Dollars via Stripe. You remain responsible for any uncollected amounts. If a payment is not successfully settled, whether due to expiration, insufficient funds, or otherwise, and you do not cancel your account, we may suspend your access to the Cloud Services until we have successfully received payment. Stripe may charge you certain fees, such as foreign transaction fees or other fees relating to processing your payment.
You can cancel your access to the Cloud Services at any time, and you will continue to have access to the Cloud Services through the end of your billing period. To cancel, go to the “settings/account” page on our website and follow the instructions for cancellation. If you cancel the Cloud Services, you will have limited access to your account at the end of your billing period. UPON CANCELLATION, YOU WILL RECEIVE PARTIAL ACCESS TO THE CLOUD SERVICES FOR A ONE (1) MONTH GRACE PERIOD FOLLOWING YOUR LAST SCHEDULED BILLING DATE. DURING THIS GRACE PERIOD, YOU MAY ACCESS THE CLOUD SERVICES SOLELY TO DOWNLOAD ANY AUDIO AND FILE CONTENT YOU HAVE STORED (OTHER FEATURES WILL BE DISABLED). AFTER THIS ONE MONTH GRACE PERIOD, ALL REMAINING CONTENT WILL BE SUBJECT TO DELETION.
From time to time during the Term, Provider and Customer may disclose or make available to the other party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, in written or electronic form or media, that is marked, designated, or otherwise identified as “confidential” at the time of disclosure (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving party; (c) rightfully obtained by the receiving party on a non-confidential basis from a third party; or (d) independently developed by the receiving party. The receiving party shall not disclose the disclosing party’s Confidential Information to any person or entity, except to the receiving party’s employees, agents, or subcontractors who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder and who are required to protect the Confidential Information in a manner no less stringent than required under this Agreement. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (i) to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order shall first have given written notice to the other party and made a reasonable effort to obtain a protective order; or (ii) to establish a party’s rights under this Agreement, including to make required court filings. Each party’s obligations of non-disclosure with regard to Confidential Information are effective as of the date such Confidential Information is first disclosed to the receiving party and will expire five years thereafter; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
Provider complies with its privacy policy available at hitsend.io/privacy (“Privacy Policy”), in providing the Cloud Services. The Privacy Policy is subject to change as described therein. By accessing, using, and providing information to or through the Cloud Services, you acknowledge that you have reviewed and accepted the Privacy Policy, and you consent to all actions taken by us with respect to your information in compliance with the then-current version of the Privacy Policy.
As between you and us, (a) we own all right, title, and interest, including all intellectual property rights, in and to the Cloud Services and (b) you own all right, title, and interest, including all intellectual property rights, in and to Customer Data. If you or any of your employees, contractors, or agents sends or transmits any communications or materials to us by mail, email, telephone, or otherwise, suggesting or recommending changes to the Cloud Services, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), we are free to use such Feedback irrespective of any other obligation or limitation between you and us governing such Feedback. All Feedback is and will be treated as non-confidential. You hereby assign to us on your behalf, and shall cause your employees, contractors, and agents to assign, all right, title, and interest in, and we are free to use, without any attribution or compensation to you or any third party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in any Feedback, for any purpose whatsoever, although we are not required to use any Feedback.
We respect the intellectual property rights of others. In compliance with the Digital Millennium Copyright Act of 1998, we will respond expeditiously to claims of copyright infringement by any Authorized User in connection with its use of the Cloud Services if submitted to the Copyright Agent as described below. Upon receipt of a notice alleging copyright infringement, we will take appropriate action to remove the offending materials, in our sole discretion. This may include removing allegedly infringing materials and suspending or terminating access for repeat infringers of copyright protected content. If you believe that your intellectual property rights have been violated by a party who has uploaded Audio Content or other materials to the Cloud Services, please provide the following information to the designated Copyright Agent listed below:
A description of the copyrighted work or other intellectual property that you claim has been infringed;
A description of where the offending material you claim is infringing is located on the Cloud Services;
An address, telephone number, company affiliation (if applicable), and email address where we can contact you;
Each of the following statements in the body of the notice:
“I hereby state that I have a good faith belief that the disputed use of the copyright material is not authorized by the copyright owner, its agent, or the law.”
“I hereby state that the information in this notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of the owner of the copyright or of an exclusive right under the copyright that is allegedly infringed.”; and
Provide a physical or electronic signature
We may request additional information before removing any allegedly infringing material. In the event we remove all or any portion of the allegedly infringing materials, we will immediately notify the person responsible for posting such materials that we removed or disabled access to the materials. Pursuant to 17 U.S.C.512(c) SessionFuse Inc.’s designated Copyright Agent is:
James Dickerson
james @ hitsend.io
Provider warrants that the Cloud Services will conform in all material respects to the Service Levels when accessed and used by Customer in accordance with the Documentation. Provider does not make any representations or guarantees regarding uptime or availability of the Cloud Services unless specifically identified in the Service Levels. The remedies set forth in the Service Levels are Customer’s sole remedies and Provider’s sole liability under the limited warranty set forth in this Section 9(a). THE FOREGOING WARRANTY DOES NOT APPLY, AND PROVIDER STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS.
You warrant that you own all right, title, and interest, including all intellectual property rights, in and to Customer Data and that both Customer Data and your use of the Cloud Services are in compliance with the AUP.
EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 9(a), THE CLOUD SERVICES ARE PROVIDED “AS IS” AND PROVIDER SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE CLOUD SERVICES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON’S OR ENTITY’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OF YOUR OR ANY THIRD PARTY’S SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
PROVIDER, ITS SUCCESSORS, AND ASSIGNS SHALL HAVE NO LIABILITY IN EXCESS OF 100 US DOLLARS FOR ANY LOSS OR DAMAGE ARISING FROM:
(a) ANY CHANGES THAT PROVIDER MAY MAKE TO THE CLOUD SERVICES OR ANY PART THEREOF, OR ANY TEMPORARY OR PERMANENT SUSPENSION OR CESSATION OF ACCESS TO THE CLOUD SERVICES OR ANY AUDIO CONTENT IN OR FROM ANY OR ALL TERRITORIES;
(b) ANY ACTION TAKEN AGAINST YOU BY THIRD PARTY RIGHTSHOLDERS WITH RESPECT TO ANY ALLEGED INFRINGEMENT OF SUCH THIRD PARTY’S RIGHTS RELATING TO YOUR AUDIO CONTENT OR YOUR USE OF THE CLOUD SERVICES, OR ANY ACTION TAKEN AS PART OF AN INVESTIGATION BY ANY RELEVANT LAW ENFORCEMENT AUTHORITY REGARDING YOUR USE OF THE CLOUD SERVICES;
(c) ANY ERRORS OR OMISSIONS IN PROVIDER’S TECHNICAL OPERATION;
(d) YOUR FAILURE TO PROVIDE ACCURATE OR COMPLETE INFORMATION TO PROVIDER, OR YOUR FAILURE TO KEEP YOUR USERNAME OR PASSWORD SUITABLY CONFIDENTIAL;
(e) ANY MISCONDUCT BY OTHER USERS OR THIRD PARTIES USING THE CLOUD SERVICES, ESPECIALLY IN BREACH OF THIS AGREEMENT;
(f) ANY LOSS OR DAMAGE TO ANY COMPUTER HARDWARE OR SOFTWARE, ANY LOSS OF DATA (INCLUDING YOUR AUDIO CONTENT), OR ANY LOSS OR DAMAGE FROM ANY SECURITY BREACH; OR
(g) ANY LOSS OF PROFITS, OR ANY LOSS YOU SUFFER WHICH IS NOT A FORESEEABLE CONSEQUENCE OF PROVIDER BREACHING THIS AGREEMENT. LOSSES ARE FORESEEABLE WHERE THEY COULD BE CONTEMPLATED BY YOU AND PROVIDER AT THE TIME YOU AGREE TO THIS AGREEMENT, AND THEREFORE DO NOT INCLUDE ANY INDIRECT LOSSES, SUCH AS LOSS OF OPPORTUNITY.
ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO YOUR USE OF THE CLOUD SERVICES MUST BE NOTIFIED TO PROVIDER AS SOON AS POSSIBLE.
APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. IN SUCH CASES, YOU ACKNOWLEDGE AND AGREE THAT SUCH LIMITATIONS AND EXCLUSIONS REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND PROVIDER AND ARE FUNDAMENTAL ELEMENTS OF THE BARGAIN BETWEEN YOU AND PROVIDER, AND THAT PROVIDER’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
NOTHING IN THIS AGREEMENT LIMITS OR EXCLUDES THE LIABILITY OF PROVIDER OR ITS SUCCESSORS AND ASSIGNS: (I) FOR ANY DEATH OR PERSONAL INJURY CAUSED BY ITS OR THEIR NEGLIGENCE, (II) FOR ANY FORM OF FRAUD OR DECEIT, (III) FOR ANY DAMAGES CAUSED WILLFULLY OR BY GROSS NEGLIGENCE, OR (IV) FOR ANY FORM OF LIABILITY WHICH CANNOT BE LIMITED OR EXCLUDED BY LAW.
You hereby agree to indemnify, defend and hold harmless Provider, its successors, assigns, affiliates, agents, directors, officers, employees and shareholders from and against any and all claims, obligations, damages, losses, expenses, and costs, including reasonable attorneys’ fees, resulting from:
(a) any violation by you of this Agreement;
(b) any third party claim of infringement of copyright or other intellectual property rights or invasion of privacy arising from the hosting of Audio Content on the Cloud Services, or your making available thereof to other users, or the actual use of Audio Content by other users of the Cloud Services in accordance with this Agreement and the parameters set by you with respect to the distribution and sharing of Audio Content; or
(c) any activity related to your account, be it by you or by any other person accessing your account with or without your consent unless such activity was caused by the act or default of Provider.
The term of this Agreement begins on the Effective Date and continues until terminated. The Cloud Services that are specified to automatically renew will renew unless earlier terminated pursuant to this Agreement’s express provisions or either party gives the other party written notice of non-renewal at least 1 day prior to the expiration of the then-current services period.
In addition to any other express termination right set forth in this Agreement:
(i) Provider may terminate this Agreement, for any reason upon thirty (30) days’ advance notice;
(ii) You may terminate this Agreement for any reason upon one (1) day advance notice and with proper submission of cancelation which can be found at hitsend.io/settings/account;
(iii) either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured 30 days after the non-breaching party provides the breaching party with written notice of such breach; or
(iv) either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
Upon termination of this Agreement, Customer shall immediately discontinue use of the Provider IP. No expiration or termination of this Agreement will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination, or entitle Customer to any refund.
This Section 12(d), Sections 5, 6, 10, 11, 14, 15, and 16, and any right, obligation, or required performance of the parties in this Agreement which, by its express terms or nature and context is intended to survive termination or expiration of this Agreement, will survive any such termination or expiration.
You acknowledge and agree that we have the right, in our sole discretion, to modify this Agreement from time to time, and that modified terms become effective on posting. You will be notified of modifications through notifications or the agreement may be accessed at hitsend.io/terms and via direct email communication from us. You are responsible for reviewing and becoming familiar with any such modifications. Your continued use of the Cloud Services after the effective date of the modifications will be deemed acceptance of the modified terms. Provider will provide at least 30 days’ advance notice of changes to any service level that Provider reasonably anticipates may result in a material reduction in quality or services.
The Cloud Services utilize software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Cloud Services or the software or technology included in the Cloud Services to, or make the Cloud Services or the software or technology included in the Cloud Services accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, regulation, or rule. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Cloud Services or the software or technology included in the Cloud Services available outside the US.
This agreement is governed by and construed in accordance with the internal laws of the State of Nebraska without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Nebraska. Any legal suit, action, or proceeding arising out of or related to this agreement or the rights granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Nebraska in each case located in the city of Lincoln and County of Lancaster, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
This Agreement constitutes the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. Any notices to us must be sent to our corporate contact support@hitsend.io. Notwithstanding the foregoing, you hereby consent to receiving electronic communications from us. These electronic communications may include notices about applicable fees and charges, transactional information, and other information concerning or related to the Cloud Services. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing. The invalidity, illegality, or unenforceability of any provision herein does not affect any other provision herein or the validity, legality, or enforceability of such provision in any other jurisdiction. Any failure to act by us with respect to a breach of this Agreement by you or others does not constitute a waiver and will not limit our rights with respect to such breach or any subsequent breaches. This Agreement is personal to you and may not be assigned or transferred for any reason whatsoever without our prior written consent and any action or conduct in violation of the foregoing will be void and without effect. We expressly reserve the right to assign this Agreement and to delegate any of its obligations hereunder.