Terms of Service
1. Acceptance of the Terms of Service
These terms of service are entered into by and between you as the user or customer of the offered services contemplated by the terms contained herein (“User”) and UP & YES, Inc., a California corporation d/b/a Tymber (“Tymber”). The following terms and conditions, together with any documents they expressly incorporate by reference (collectively, “Terms of Service”), govern your access to and use of (i) Tymber’s website (www.tymber.io) (the “Website”) (ii) the e-commerce technology platform powered and offered by Tymber (the “Tymber Platform”) and (iii) any professional services provided to User by Tymber, including any content, functionality, and services offered as software-as-a-service on or through the Website or the Tymber Platform (collectively, the “Tymber Services”), whether as a guest or a registered user.
The Tymber Services are offered and available to users who 21 years of age or older. By using the Tymber Services, User represents and warrants that they are of legal age to form a binding contract with Tymber and meet all of the foregoing eligibility requirements and their users or customers are of legal age. If User does not meet all of these requirements, User must not access or use the Tymber Services.
Tymber may, from time to time, provide to User a Proposal (as defined below) specific to User’s needs. To the extent that any terms set forth in the Proposal differ from the terms set forth in these Terms of Service, the Proposal shall control.
All questions regarding these Terms of Service, may be directed by email to email@example.com. All questions regarding the Tymber Services and general business inquiries may be directed by email to firstname.lastname@example.org.
2. Changes to the Terms of Service
Tymber may revise and update these Terms of Service from time-to-time in Tymber’s sole discretion. All changes are effective immediately when posted to the Website and apply to all access to and use of the Tymber Services thereafter. User’s continued use of the Tymber Services following the posting of any revised Terms of Service on the Website means that User accepts and agrees to the revised Terms of Service. User is expected to check this page from time to time so User is aware of any changes to the Terms of Service, as they are binding, and Tymber may not provide notification of any changes to the Terms of Service.
“Access Credentials” means any username, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device, as applicable, and used alone or in combination, to verify an individual’s identity and authorization to access and use the Tymber Services.
“Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise.
“Affiliate” of a Person means any Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through ownership of more than 50% of the voting securities of a Person, or by other any other means.
“Authorized Users” means User’s employees, consultants, contractors, and agents (a) who are authorized by User to access and use the Tymber Services under the rights granted to User pursuant to these Terms of Service; and (b) for whom access to the Tymber Services has been purchased hereunder and has been provided User Credentials.
“Harmful Code” means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system, or network; or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data Processed thereby; or (b) prevent Tymber, its Representatives and customers, User or any Authorized User from accessing or using the Tymber Services or Tymber Systems as intended by these Terms of Service. Harmful Code does not include any Tymber Disabling Device.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
“Losses” means any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.
“Process” means to take any action or perform any operation or set of operations that the Tymber Services are capable of taking or performing on any data, information, or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, back up procedures, cross-reference, manage, maintain, copy, adapt, alter, translate, or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose, or otherwise provide or make available, or block, erase, or destroy. “Processing” and “Processed” have correlative meanings.
“Proposal” means Tymber’s written offer or proposal to furnish software-as-as-services and professional services upon such terms as mutually agreed upon by both Tymber and User, and shall act as the statement of work, as amended from time to time.
“Representatives” means, with respect to a party, that party’s and its Affiliates’ employees, officers, directors, consultants, agents, independent contractors, service providers, sublicensees, subcontractors, and legal advisors.
“Resultant Data” means data and information related to User’s use of the Tymber Services that is used by Tymber in an aggregate and anonymized manner, including, but not limited to compiling statistical and performance information related to the provision and operation of the Tymber Services. Tymber shall retain all Intellectual Property Rights and full ownership of any Resultant Data.
“Specifications” means the specifications for the Tymber Services as set forth in the Proposal provided to User and as may be amended from time to time.
“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 Tymber Services that are not proprietary to Tymber.
“Tymber Disabling Device” means any software, hardware, or other technology, device, or means (including any back door, time bomb, time out, drop dead device, software routine, or other disabling device) used by Tymber or its designee to disable User’s or any Authorized User’s access to or use of the Tymber Services automatically with the passage of time or under the positive control of Tymber or its designee.
“Tymber Documentation” means any manuals, instructions, or other documents or materials that the Tymber provides or makes available to User in digital form or medium and which describe the functionality, components, features, or requirements of the Tymber Services or Tymber Materials, including any aspect of the installation, configuration, integration, operation, use, support, or maintenance thereof, and such materials can be found at https://help.tymber.io/.
“Tymber Materials” means the Specifications, Tymber Documentation, and Tymber Systems and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, Tymber backups and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by Tymber or any Subcontractor in connection with the Tymber Services or otherwise comprise or relate to the Tymber Services or Tymber Systems. For the avoidance of doubt, Tymber Materials include Resultant Data and any information, data, or other content derived from Tymber’s monitoring of User’s access to or use of the Tymber Services, but do not include User Data.
“Tymber Personnel” means all individuals involved in the performance and maintenance of the Tymber Services as employees, agents, or independent contractors of Tymber or any Subcontractor.
“Tymber Services” means the software-as-a-service, e-commerce platform and professional services offering described in the Proposal and made a part hereof.
“Tymber Systems” means the information technology infrastructure used by or on behalf of Tymber in performing the Tymber Services, including all computers, software, hardware, databases, servers, electronic systems (including database management systems), and networks, whether operated directly by Tymber or through the use of third-party vendors or service providers.
“User Data” means information, data, User-contributed content, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly, from User or an Authorized User, or User’s customers, by or through the Tymber Services or that incorporates or is derived from the Processing of such information, data, or content by or through the Tymber Services. For the avoidance of doubt, User Data does not include Resultant Data, or any other information reflecting the access or use of the Tymber Services by or on behalf of User, any Authorized User or User’s customers. User acknowledges that User Data may be transferred, encrypted and transmitted over various networks, and may be altered to conform to technical requirements in order to connect to such networks and/or devices.
“User Systems” means the User’s information technology infrastructure, including computers, domains, hosting services, software, hardware, databases, data backup system, electronic systems (including database management systems), and networks, whether operated directly by User or through the use of third-party services.
4. Tymber Services
- 4.1 Access and Use. Subject to and conditioned on User’s and its Authorized Users’ compliance with the terms and conditions of these Terms of Service, Tymber hereby grants User a non-exclusive, non-transferable (except in compliance with Section 16.9) right to access and use the Tymber Services during the Term, solely for use by User or Authorized Users in accordance with the terms and conditions herein. Such use is limited to User’s internal use. Tymber shall provide to User the Access Credentials within a reasonable time following the completion of all Tymber’s required onboarding procedures, to access User’s administrative dashboard (“Admin Dashboard”) (see https://admin.tymber.io/login). The total number of Authorized Users will not exceed the number set forth in the Proposal, except as expressly agreed to in writing by the parties and subject to any appropriate adjustment of the Fees payable hereunder. In order to obtain Access Credentials, User may be asked to provide the following information for all Authorized Users (i) full legal names, (ii) valid email addresses, and (iii) any other information requested by Tymber in order to facilitate the onboarding procedures. Tymber may provide technical support to Users and Authorized Users who have been successfully onboarded to the Tymber Services or Tymber Systems, and Tymber retains the right to charge additional fees for technical support. User may access technical support through the Client Dashboard or by emailing email@example.com.
- 4.2 Tymber Documentation License. Tymber hereby grants to User a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 16.9) license to use the Tymber Documentation during the Term solely for User’s internal business purposes in connection with its use of the Tymber Services.
- 4.3 Service and System Control. Except as otherwise expressly provided in these Terms of Service, as between the parties:(a) Tymber has and will retain sole control over the operation, provision, maintenance, and management of the Tymber Services and Tymber Materials, provided however, that User shall have full access to its Admin Dashboard, subject to the terms set forth in these Terms of Service; and (b) User has and will retain control over the operation, maintenance, and management of, and all access to and use of, the User Systems (including any responsibility for fees payable to third parties in connection with the User Systems), and will have sole responsibility for all access to and use of the Tymber Services and Tymber Materials by any Person or Authorized User by or through the User Systems or any other means controlled by User or any Authorized User, including any: (i) information, instructions, or materials provided by any of them to Tymber or contributed in connection with the Tymber Services; (ii) results obtained from any use of the Tymber Services or Tymber Materials (with exception of Resultant Data); and (iii) conclusions, decisions, or actions based on such use.
- 4.4 Reservation of Rights. Nothing in these Terms of Service grants any right, title, or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Tymber Services, Tymber Materials, or Third-Party Materials, whether expressly, by implication, estoppel, or otherwise. All right, title, and interest in and to the Tymber Services, the Tymber Materials, and the Third-Party Materials are, and will remain, with Tymber and the respective rights holders in the Third-Party Materials.
- 4.5 Service Management. User shall, throughout the Term, maintain within its organization a service manager or service managers to serve as such party’s primary point of contact with Tymber Personnel for day-to-day communications, consultation, and decision-making regarding these Terms of Service. Each service manager shall be responsible for providing all day-to-day consents and approvals on behalf of User under these Terms of Service. User shall ensure its service manager has the requisite organizational authority, skill, experience, and other qualifications to perform in such capacity. The parties’ initial service managers may be identified in the Proposal. User shall use commercially reasonable efforts to maintain the same service manager in place throughout the Term. If User’s service manager ceases to be employed by User or User otherwise wishes to replace its service manager, User shall promptly name a new service manager by written notice to Tymber via email to firstname.lastname@example.org.
- 4.6 Modifications. (A) Tymber Modifications. Tymber reserves the right, in its sole discretion, to make any modifications to the Tymber Services and Tymber Materials offered to all Tymber customers and that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of the Tymber Services to its customers; (ii) the competitive strength of or market for the Tymber Services; or (iii) the Tymber Services’ cost efficiency or performance; or (b) to comply with applicable Law. To the extent reasonably possible Tymber will provide advanced sixty (60) day notice to User before such changes are implemented. User acknowledges that necessary modifications may need to be implemented immediately and, in such instances, Tymber will not incur any liability to User for failing to provide sixty (60) day notice of such immediate modifications. (B) User Modifications. If User requests that the Tymber Services be modified with respect to User’s respective use, Authorized Users’ use, or User’s customers’ use, of the Tymber Services, the parties shall evaluate and, if agreed, implement all such requested modifications in line with User’s requests and to the extent reasonably possible. No User requested modifications will be effective unless and until memorialized in writing and by continuing to use the Tymber Services User agrees to any increase in Fees resulting therefrom. Any User requested modifications or downgrades to User’s use or access of the Tymber Services may result in the loss of User Data, features, or functionality of the Tymber Services and User acknowledges that Tymber shall not be liable for any Losses resulting therefrom.
- 4.7 Subcontractors. Tymber may from time to time in its sole discretion engage third parties to perform Tymber Services or manage and operate functionality of the Tymber Services or Tymber Systems (each, a “Subcontractor”), including, but not limited to, third party vendors or hosting partners to provide the necessary integrations, hardware, software, networking, storage, security and related technology required to run and maintain the Tymber Services or the Tymber Systems.
- 4.8 Suspension or Termination of the Tymber Services. Tymber may, directly or indirectly, and by use of a Tymber Disabling Device or any other lawful means, suspend, terminate, or otherwise deny User’s, any Authorized User’s, or any other Person’s access to or use of all or any part of the Tymber Services or Tymber Materials, without incurring any resulting obligation or liability, if: (a) Tymber receives a judicial or other governmental demand or order, subpoena, cease and desist from any party, or law enforcement request that expressly or by reasonable implication requires Tymber to do so; or (b) Tymber believes, in its reasonable discretion, that: (i) User or any Authorized User has failed to comply with any term or obligation set forth in these Terms of Service or applicable Law, or accessed or used the Tymber Services beyond the scope of the rights granted or for a purpose not authorized under these Terms of Service or in any manner that does not comply with any instruction or requirement of the Specifications; (ii) User 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 its use of any of the Tymber Services; or (iii) these Terms of Service are terminated. This Section 4.8 does not limit any of Tymber’s other rights or remedies, whether at law, in equity, or under these Terms of Service.
5. Use Restrictions; Service Usage and Data Storage
5.1 Use Restrictions
User shall not, and shall not permit any other Person to, access or use the Tymber Services or Tymber Materials except as expressly permitted by these Terms of Service and, in the case of Third-Party Materials, the applicable third-party license agreement. User is responsible for utilizing the Tymber Services only for legal purposes and shall at all times be solely responsible for complying with all Laws and regulations applicable to User’s utilization of the Tymber Services. For purposes of clarity and without limiting the generality of the foregoing, User and its Authorized Users shall not at any time do any of the following:
- Copy, modify, or create derivative works or improvements of the Tymber Services or Tymber Materials;
- Rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Tymber Services or Tymber Materials to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service;
- Reproduce or reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Tymber Services or Tymber Materials, in whole or in part;
- Sell, resell or exploit any portion of the Tymber Services or Tymber Materials, except as permitted by these Terms of Service or the express written consent of Tymber;
- Bypass or breach any security device or protection used by the Tymber Services or Tymber Materials or access or use the Tymber Services or Tymber Materials other than by an Authorized User through the use of his or her own then valid Access Credentials;
- Input, upload, transmit, or otherwise provide to or through the Tymber Services or Tymber Systems, any information or materials that are (i) unlawful or injurious, (ii) violate the terms of Section 3.5 or Section 6.5 or (iii) contain, transmit, or activate any Harmful Code;
- Use any web spiders, bots, indexers, robots, crawlers, harvesters, or any other automatic process to access, acquire, copy or monitor any portion of the Tymber Services;
- Upload, post, host or transmit unsolicited email, SMS, or “spam” messages through the Tymber Services;
- Damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Tymber Services, Tymber Systems, or Tymber’s provision of services to any Tymber customer or third party, in whole or in part;
- Remove, delete, alter, or obscure any trademarks, Specifications, Tymber Documentation, terms of service, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any Tymber Services or Tymber Materials, including any copy thereof;
- Access or use the Tymber Services or Tymber Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction, or disclosure of the data of any other Tymber customer), or that violates any applicable Law;
- Access or use the Tymber Services or Tymber Materials for purposes of competitive analysis of the Tymber Services or Tymber Materials, the development, provision, or use of a competing software service or product or any other purpose that is to the Tymber’s detriment or commercial disadvantage; or
- Access or use the Tymber Services or Tymber Materials in, or in association with, the design, construction, maintenance, or operation of any hazardous environments, systems, or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the Tymber Services could lead to personal injury or severe physical or property damage;
- Otherwise access or use the Tymber Services or Tymber Materials beyond the scope of the authorization granted under this Section 5.1.
In the event Tymber reasonably believes User or any Authorized User is engaging in illegal activity Tymber may take all necessary actions provided for in these Terms of Service or available per applicable Laws, including, but not limited to, (i) disclose an Authorized User’s identity to law enforcement or regulatory agencies, (ii) block User’s or any Authorized User’s IP address, and (iii) notify User or any Authorized User’s internet service provider regarding any breach of these Terms of Service.
6. User Obligations
- 6.1 User Systems and Cooperation. User shall at all times during the Term: (a) set up, maintain, and operate in good repair and in accordance with the Specifications all User Systems (as defined herein) on or through which the Tymber Services are accessed or used; (b) provide Tymber Personnel with such access to User’s premises and User Systems as is necessary for Tymber to provide the Tymber Services in accordance with the Specifications; and (c) provide all cooperation and assistance as Tymber may reasonably request to enable Tymber to exercise its rights and perform its obligations under and in connection with these Terms of Service.
- 6.2 Effect of User Failure or Delay. Tymber is not responsible or liable for any delay or failure of performance of the Tymber Services caused in whole or in part by User’s delay in performing, or failure to perform, any of its obligations under these Terms of Service (each, a “User Failure”).
- 6.3 Corrective Action and Notice. If User becomes aware of any actual or threatened activity prohibited by these Terms of Service, User shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Tymber Services and Tymber Materials and, upon request of Tymber, permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) immediately notify Tymber of any such actual or threatened activity.
- 6.4 Non-Solicitation. During the Term and for two (2) years after, User shall not, and shall not assist any other Person to, directly or indirectly, recruit or solicit (other than by general advertisement not directed specifically to any Person or Persons) for employment or engagement as an independent contractor any Person then or within the prior twelve (12) months employed or engaged by Tymber or any Subcontractor and involved in any respect with the Tymber Services or the performance of these Terms of Service. In the event of a violation of this Section 6.4, Tymber will be entitled to liquidated damages equal to the compensation paid by Tymber to the applicable employee or contractor during the prior twelve (12) months, or Tymber may seek equitable relief.
- 6.5 User Data. (a) User is responsible for all User Data contributed to the Website or Tymber Platform, and User’s utilization of the Tymber Services and User Data may not at any time:
7. Data Backup
The Tymber Systems are programmed to perform routine data backups pursuant to the backup features provided to Tymber by third-party backup-as-a-service providers. Notwithstanding the foregoing, the Tymber Systems and the Tymber Services do not replace the need for User to maintain regular data backups or redundant data archives. TYMBER HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF USER DATA, AND USER IS REPSPONSIBLE FOR BACKING UP ALL USER DATA.
- 8.1 Information Security. Tymber utilizes security measures pursuant to security features provided to Tymber by third-party security-as-a-service providers to ensure all User Data is kept secure, including, but not limited to the following: (a) Utilization of 256-bit SSL encryption standards for data (at-rest and in-transit) and key rotation encryption with secure key storage; (b) Utilization of state-of-the-art firewall and data storage technologies to ensure proper backups of all data; (c) Utilization of backups are updated regularly and stored in secure locations; (d) Utilization of state-of-the-art cloud services/applications and built-in infrastructure management, scaling and security; and (e) Utilization of Web Application Firewall (WAF) technologies for overall security protections and countermeasures against bad actors, potential attacks (including DDoS attacks), and malicious bots.
- 8.2 User Control and Responsibility. User has and will retain sole responsibility for: (a) all User Data, including its provided content and use; (b) all information, instructions, and materials provided by or on behalf of User or any Authorized User in connection with the Tymber Services; (c) any and all User Systems, as defined herein; (d) the security and use of User’s and its Authorized Users’ Access Credentials; and (e) all access to and use of the Tymber Services and Tymber Materials directly or indirectly by or through the User Systems or its or its Authorized Users’ Access Credentials, with or without User’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use. User agrees to allow viewing by the public of any public-facing User Data, including, but not limited to, product menus.
- 8.3 Access and Security. User shall employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Tymber Services or Admin Dashboard; and (b) control the content and use of User Data, including the uploading or other provision of User Data through the Admin Dashboard or other method of upload, for Processing by the Tymber Services. Usernames and passwords that are generated for any Authorized Users may only be utilized by the Authorized User assigned to such username and/or password. User and all Authorized Users are solely responsible for keeping usernames and passwords secure from any unauthorized access to the Tymber Services or the Admin Dashboard. Tymber shall not be liable for any Losses incurred by User or any third party related to or arising from User’s or any Authorized Users’ failure to maintain the security of any usernames, passwords, or other account information.
9. Fees and Payment
- 9.1 Fees. User shall pay Tymber the fees set forth in the Proposal, as may be amended from time to time (“Fees”) in accordance with this Section 9.
- 9.2 Taxes. All Fees and other amounts payable by User under these Terms of Service are exclusive of taxes and similar assessments. Without limiting the foregoing, User is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by User hereunder, other than any taxes imposed on Tymber’s income.
- 9.3 Payment of Fees. Fees for the Tymber Services are billed on a monthly basis on such date as mutually agreed upon the Proposal, and payment is due immediately on such date. User shall make all payments hereunder in US dollars by Automated Clearing House (ACH) Payment, credit card, or other Tymber-accepted method of payment.
- 9.4 Late Payment. If User fails to make any undisputed payment when due, and such failure continues for thirty (30) calendar days following Tymber’s delivery of written notice to User of User’s failure to make payment, then, in addition to all other remedies that may be available: (a) Tymber may charge interest on the past due amount at the rate of 0.83% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable Law; (b) User shall reimburse Tymber for all costs incurred by Tymber in collecting any late payments or interest, including reasonable outside attorneys’ fees, court costs, and collection agency fees; (c) Upon no less than five (5) calendar days’ written notice, Tymber may suspend User’s access to the Tymber Services until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to User or any other Person by reason of such suspension; and (d) Upon no less than five (5) calendar days’ written notice, Tymber may permanently discontinue User’s use of the Tymber Services and terminate these Terms of Service with User.
- 9.5 No Deductions or Setoffs. All amounts payable to Tymber under these Terms of Service shall be paid by User to Tymber in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable Law).
- 9.6 Fee Increases. Tymber may increase Fees from time to time within Tymber’s sole discretion and may do so, (i) globally in connection with the Tymber Services offered to all customers and by providing written notice to User at least thirty (30) calendar days’ notice prior to the commencement of such Fee increase taking effect, or (ii) in the event User requests specific modifications to its respective use of the Tymber Services and for the implementation and use of such User requested modifications, and any applicable Proposal(s) will be deemed amended accordingly.
- 10.1 Confidential Information. In connection with these Terms of Service each party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other party (as the “Receiving Party”). Subject to Section 10.2, “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, information with respect to which the Disclosing Party has contractual or other confidentiality obligations, and information which, by its nature or the circumstances of its disclosure to the Receiving Party, should reasonably be considered confidential, in each case whether or not marked, designated, or otherwise identified as “confidential”. Without limiting the foregoing: all Tymber Materials, Resultant Data, and any Proposals, are the Confidential Information of Tymber.
- 10.2 Exclusions. Confidential Information does not include information that: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with these Terms of Service; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with these Terms of Service; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
- 10.3 Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall: (a) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with these Terms of Service; (b) except as may be permitted by and subject to its compliance with Section 10.4, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with these Terms of Service; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 10; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 10; (c) safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care; (d) promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information and reasonably cooperate with Disclosing Party to prevent further unauthorized use or disclosure; and (e) ensure its Representatives’ compliance with and be responsible and liable for any of its Representatives’ non-compliance with, the terms of this Section 10. (f) Notwithstanding any other provisions of these Terms of Service, the Receiving Party’s obligations under this Section 10 with respect to any Confidential Information that constitutes a trade secret under any applicable Law will continue until such time, if ever, as such Confidential Information ceases to qualify for trade secret protection under one or more such applicable Laws other than as a result of any act or omission of the Receiving Party or any of its Representatives.
- 10.4 Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 10.3; and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 10.4 the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose and, on the Disclosing Party’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.
11. Intellectual Property Rights
- 11.1 Tymber Materials. All right, title, and interest in and to the Tymber Services and the Tymber Materials, including all Intellectual Property Rights therein, are and will remain with Tymber and, 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. User has no right, license, or authorization with respect to the Tymber Services or any of the Tymber Materials except as expressly set forth in Section 4.1 or the applicable third-party license, in each case subject to Section 5.1 and Section 6.5. All other rights in and to the Tymber Materials are expressly reserved by Tymber. In furtherance of the foregoing, User hereby unconditionally and irrevocably grants to Tymber an assignment of all right, title, and interest in and to the Resultant Data, including all Intellectual Property Rights relating thereto.
- 11.2 User Data. As between User and Tymber, User is and will remain the sole and exclusive owner of all right, title, and interest in and to all User Data (with the exception of Resultant Data), including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in Section 11.3 and any ancillary agreement by and between User and Tymber.
- 11.3 Consent to Use User Data. User hereby irrevocably grants all such rights and permissions in or relating to User Data (or Resultant Data, as applicable) as are necessary or useful to Tymber, its Subcontractors, and the Tymber Personnel to enforce these Terms of Service and exercise Tymber’s, its Subcontractors’, and the Tymber Personnel’s rights and perform Tymber’s, its Subcontractors’, and the Tymber Personnel’s obligations hereunder.
12. Representations and Warranties
- 12.1 Mutual Representations and Warranties. Each party represents and warrants to the other party that: (a) it is duly organized, validly existing, and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization; (b) it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under these Terms of Service; (c) the execution of the Proposal by its representative whose signature is set forth at the end of the Proposal has been duly authorized by all necessary corporate or organizational action of such party as may be required; and (d) when the Proposal is executed and delivered by both parties, the Proposal and these Terms of Service will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.
- 12.2 Additional Tymber Representations, Warranties, and Covenants. Tymber represents, warrants, and covenants to User that Tymber will perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to meet its obligations under these Terms of Service, provided, however, that the standards set forth in this Section 12.2 shall not be applicable to any third-party services, proprietary software or open source software that may be used, included, or implemented in the Tymber Services.
- 12.3 Additional User Representations, Warranties, and Covenants. User represents, warrants, and covenants to Tymber that User owns or otherwise has and will have the necessary rights and consents in and relating to the User Data so that, as received by Tymber and Processed in accordance with these Terms of Service, such User Data does not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable Law.
- 12.4 DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 12.1 AND SECTION 12.2, THE TYMBER SERVICES AND TYMBER MATERIALS ARE PROVIDED “AS IS.” TYMBER 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. WITHOUT LIMITING THE FOREGOING, TYMBER MAKES NO WARRANTY OF ANY KIND THAT THE TYMBER SERVICES OR TYMBER MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET USER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN USER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY USER FROM TYMBER, TYMBER PERSONNEL OR THROUGH THE TYMBER MATERIALS OR TYMBER SERVICES SHALL CREATE ANY WARRANTY, EXPRESS OR IMPLIED, UNLESS SET FORTH IN THESE TERMS OF SERVICE.
13. LIMITATIONS OF LIABILITY
- 13.1 User Indemnification. User shall indemnify, defend, and hold harmless Tymber and its Subcontractors and Affiliates, and each of its and their respective officers, directors, employees, agents, successors, and assigns (each, a “Tymber Indemnitee”) from and against any and all Losses incurred by such Tymber Indemnitee resulting from these Terms of Service, or any Action by a third party (other than an Affiliate of a Tymber Indemnitee) that directly results from: (a) User Data; (b) any other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of User or any Authorized User, including Tymber’s compliance with any specifications or directions provided by or on behalf of User or any Authorized User to the extent prepared without any contribution by Tymber; (c) User’s breach of any of its representations, warranties, covenants, or obligations under these Terms of Service; or (d) gross negligence or willful misconduct by User, any Authorized User, or any third party on behalf of User or any Authorized User, in connection with these Terms of Service.
- 13.2 Indemnification Procedure. Tymber shall promptly notify User in writing of any Action for which Tymber believes it is entitled to be indemnified pursuant to Section 13.1, as the case may be. Tymber shall cooperate with User at Tymber’s sole cost and expense. User shall promptly assume control of the defense and shall employ counsel of its choice and reasonably acceptable to Tymber, to handle and defend the same, at User’s sole cost and expense. Tymber may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. User shall not settle any Action without Tymber’s prior written consent, which shall not be unreasonably withheld or delayed. Tymber’s failure to perform any obligations under this Section 13.2 will not relieve User of its obligations under this Section 13.2, except to the extent that User can demonstrate that it has been prejudiced as a result of such failure.
- 13.3 Mitigation. If any of the Tymber Services or Tymber Materials are, or are reasonably likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if User’s or any Authorized User’s use of the Tymber Services or Tymber Materials is enjoined or threatened to be enjoined, Tymber may, at its option and sole cost and expense: (a) obtain the right for User to continue to use the Tymber Services and Tymber Materials materially as contemplated by these Terms of Service; (b) modify or replace the Tymber Services and Tymber Materials, in whole or in part, to seek to make the Tymber Services and Tymber Materials (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Tymber Services and Tymber Materials, as applicable, under these Terms of Service; or (c) by written notice to User, terminate these Terms of Service with respect to all or part of the Tymber Services and Tymber Materials, and require User to immediately cease any use of the Tymber Services and Tymber Materials or any specified part or feature thereof.
- 13.4 Sole Remedy. THIS SECTION 13 SETS FORTH USER’S SOLE REMEDIES AND TYMBER’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE TYMBER SERVICES OR TYMBER MATERIALS OR ANY SUBJECT MATTER OF THESE TERMS OF SERVICE INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
14. LIMITATIONS OF LIABILITY.
- 14.1 EXCLUSION OF DAMAGES. IN NO EVENT WILL TYMBER OR ANY OF ITS LICENSORS, THIRD-PARTY SERVICE PROVIDERS, OR SUBCONTRACTORS BE LIABLE UNDER OR IN CONNECTION WITH THESE TERMS OF SERVICE OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION, OR DELAY OF THE SERVICES; (c) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF USER DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (d) COST OF REPLACEMENT GOODS OR SERVICES; (e) LOSS OF GOODWILL OR REPUTATION; OR (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
- 14.2 CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE AGGREGATE LIABILITY OF TYMBER AND ITS LICENSORS, THIRD-PARTY SERVICE PROVIDERS, AND SUBCONTRACTORS ARISING OUT OF OR RELATED TO THESE TERMS OF SERVICE, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNT OF FEES PAID TO TYMBER UNDER THESE TERMS OF SERVICE IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
15. Term and Termination.
- 15.1 Term. The term of these Terms of Service commences as of the mutual execution of the Proposal and acknowledgement of these Terms of Service by User, and will continue in effect, unless terminated earlier pursuant to the terms set forth in these Terms of Service, (the “Term”).
- 15.2 Termination. In addition to any other express termination rights set forth elsewhere in these Terms of Service (including but not limited to Tymber’s right to terminate these Terms of Service and User’s access to the Tymber Services for User’s failure to make timely payment as set forth in Section 9.4(d) above): (a)Either party may terminate these Terms of Service for convenience, effective upon thirty (30) days’ written notice to the non-terminating party. If User desires to terminate these Terms of Service and its access to and use of the Tymber Services, it must send written notice via email to email@example.com; (b)Either party may terminate these Terms of Service, effective upon written notice to the other party, if the other party materially breaches these Terms of Service and such material breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured for thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach; and (c)Either party may terminate these Terms of Service, effective immediately upon written notice to the other party, if the other party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) 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; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) 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.
- 15.3 Effect of Termination or Expiration. Upon the termination of these Terms of Service, except as expressly otherwise provided in these Terms of Service: (a) All rights, licenses, consents, and authorizations granted by either party to the other hereunder will immediately terminate; (b) Tymber shall immediately cease all use of any User Data or User’s Confidential Information and (i) promptly return to User, or at User’s written request and at User’s sole cost, destroy all documents and tangible materials containing, reflecting, incorporating, or based on User Data or User’s Confidential Information; and (ii) permanently erase all User Data and User’s Confidential Information from all systems Tymber directly or indirectly controls, provided that, for clarity, Tymber’s obligations under this Section 15.3(b) do not apply to any Resultant Data; (c) User shall immediately cease all use of any Tymber Services or Tymber Materials and (i) promptly return to Tymber, or at Tymber’s written request and at Tymber’s sole cost, destroy all documents and tangible materials containing, reflecting, incorporating, or based on any Tymber Materials or Tymber’s Confidential Information; and (ii) permanently erase all Tymber Materials and Tymber’s Confidential Information from all systems User directly or indirectly controls; and (iii) certify to Tymber in writing that it has complied with the requirements of this Section 13.3; (d) Notwithstanding anything to the contrary in these Terms of Service, with respect to information and materials then in its possession or control: (i) the Receiving Party may retain the Disclosing Party’s Confidential Information and User Data solely to the extent and for so long as required by applicable Law; (ii) Tymber may also retain User Data in its backups, archives, and disaster recovery systems until such User Data is deleted in the ordinary course; and (iii) all information and materials described in this Section 15.3(d) will remain subject to all confidentiality, security, and other applicable requirements of these Terms of Service; (e) Tymber may disable all User and Authorized User access to the Tymber Services and Tymber Materials; (f) If these Terms of Service are terminated, User will be relieved of any obligation to pay any Fees attributable to the period after the effective date of such termination and Tymber will: (i) refund to User any Fees paid in advance for use of the Tymber Services that Tymber has not performed as of the effective date of termination; (g) Upon User’s written request made no later than ten (10) calendar days following delivery of notice of termination of these Terms of Service, and subject to Section 15.3(d), Tymber shall, within thirty (30) days following such effective termination date, deliver to User the then most recent version of User Data to the extent such User Data is maintained or stored by Tymber in the Tymber Systems (excluding any Resultant Data), provided that User has at that time paid all Fees then outstanding and any amounts payable after or as a result of such expiration or termination, including any expenses and fees, on a time and materials basis, for Tymber’s services in transferring such User Data. Tymber shall have no liability to User for any loss of such User Data resulting from User’s failure to provide written request within the time allotted or pay any accrued Fees, as set forth in this Section 15.3(g).
- 15.4 Surviving Terms. The provisions set forth in the following sections, and any other right or obligation of the parties in these Terms of Service that, by its nature, should survive termination or expiration of these Terms of Service, will survive any expiration or termination of these Terms of Service: Section 4.1, Section 10, Section 11, Section 12.4, Section 13, Section 14, Section 15.3, this Section 15.4, and Section 16.
- 16.1 Further Assurances. On a party’s reasonable request, the other party shall, at the requesting party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, as may be necessary to give full effect to these Terms of Service.
- 16.2 Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in these Terms of Service shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
- 16.3 Public Announcements. Neither party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to these Terms of Service or, unless expressly permitted under these Terms of Service, otherwise use the other party’s trademarks, service marks, trade names, logos, domain names, or other indicia of source, association, or sponsorship, in each case, without the prior written consent of the other party, which consent shall not be unreasonably withheld, provided, however, that Tymber may, without User’s consent, list User among Tymber’s lists of its current customers in promotional and marketing materials for so long as User continues to use the Tymber Services.
- 16.4 Logo/Mark Display; Links to Website. At all times during the Term of these Terms of Service and while User is using the Tymber Services, Tymber shall have the right to display its trademark, service marks, trade names, logo, or mark on User’s site in a manner viewable by the general public, and no smaller than 12pt font size. User may include links to the Website on User’s websites or marketing materials provided such inclusion does not negatively affect the reputation of Tymber or suggest any form of association to Tymber where there is none. Tymber retains the right to require User to remove any links (and functionality) from User’s websites at any time and for any reason.
- 16.5 Notices. Except as otherwise expressly set forth in these Terms of Service, any notice, request, consent, claim, demand, waiver, or other communications to a party under these Terms of Service shall have legal effect only if in writing and addressed to such party at the address set forth below (or to such other address or such other person that such party may designate from time to time in accordance with this Section 14.5), or if to Tymber via email, to firstname.lastname@example.org: or if to User, the current address and email(s) on file with Tymber.
Tymber Mailing Address:
Up & Yes, Inc.
2223 Avenida de la Playa, Ste 360
La Jolla, CA 92037
Attention: Legal Department
Notices sent in accordance with this Section 16.5 will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by email, (with confirmation of transmission), if sent during the addressee’s normal business hours, and on the next business day, if sent after the addressee’s normal business hours; and (d) on the third (3rd) day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
- 16.6 Interpretation. For purposes of these Terms of Service: (a) the words “include,” “includes,” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to these Terms of Service as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in these Terms of Service: (x) to sections, exhibits, schedules, attachments, and appendices mean the sections of, and exhibits, schedules, attachments, and appendices attached to, these Terms of Service; (y) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The parties intend these Terms of Service to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.
- 16.7 Headings. The headings in these Terms of Service are for reference only and do not affect the interpretation of these Terms of Service.
- 16.9 Assignment. User shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance under these Terms of Service, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without User’s prior written consent. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation, sale of all or substantially all of User’s assets, change of control (sale of a controlling interest of User’s securities), or reorganization involving User (regardless of whether User is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations, or performance under these Terms of Service for which Tymber’s prior written consent is required. No assignment, delegation, or transfer will relieve User of any of its obligations or performance under these Terms of Service. Any purported assignment, delegation, or transfer in violation of this Section 16.9 is void. These Terms of Service are binding upon and inures to the benefit of the parties hereto and their respective successors and permitted assigns.
- 16.10 Force Majeure. (a) No Breach or Default. In no event will Tymber be liable or responsible to User, or be deemed to have defaulted under or breached these Terms of Service, for any failure or delay in fulfilling or performing any term of these Terms of Service, (except for any obligations to make payments), when and to the extent such failure or delay is caused by any circumstances beyond Tymber’s reasonable control (a “Force Majeure Event”), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of these Terms of Service, national or regional emergency, epidemics or pandemics (such as the novel COVID-19 virus), government orders and lockdowns, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota, or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. (b) Affected Party Obligations. In the event of any failure or delay caused by a Force Majeure Event, Tymber shall give prompt written notice to User stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
- 16.11 No Third-Party Beneficiaries. These Terms of Service are for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms of Service.
- 16.12 Amendment and Modification; Waiver. No amendment to or modification of these Terms of Service or the Proposal are effective unless it is in writing and signed by an authorized representative of each party. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in these Terms of Service, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from these Terms of Service will operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
- 16.13 Severability. If any term or provision of these Terms of Service is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of these Terms of Service or invalidate or render unenforceable such term or provision in any other jurisdiction.
- 16.14 Governing Law; Submission to Jurisdiction. These Terms of Service are governed by and construed in accordance with the internal laws of the State of California 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 California. Any dispute, claim or controversy arising out of or relating to these Terms of Service or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of these Terms of Service to arbitrate, shall be determined by arbitration in San Diego, California, before one (1) arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules or pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
- 16.15 Equitable Relief. User acknowledges and agrees that a breach or threatened breach by User of any of its obligations under these Terms of Service may cause Tymber irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, Tymber 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 pursuant to these Terms of Service, at law, in equity, or otherwise.
- 16.16 Attorneys’ Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party against the other party arising out of or related to these Terms of Service, the prevailing party is entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing party.
Last updated August 5th, 2022