Terms and Conditions
Habitu8 Standard Terms and Conditions
This document outlines the standard contractual terms and conditions that apply to the provision of any products or services by Habitu8, Inc. (“Habitu8”) to the entity identified in the Order Form (“Customer”). An “Order Form” means any order for the provision of products or services signed by Customer. These terms are incorporated into the Order Form and together, the Order Form and these Terms are the “Agreement.” Habitu8 and Customer may be referred to herein each as a “party” and together as the “parties.”
1. Services. Subject to the terms of this Agreement, Habitu8 will provide the Service specified in the Order Form. “Service(s)” means the proprietary software as a service offering(s) provided by Habitu8 together with its affiliates and partners (“Provider”) and made available through a URL in a hosted environment, together with any other related products and services to be provided by Habitu8 as described in the Order Form. “User” means an individual who is authorized by the Customer to use the Service and Customer has paid for such use.
2. Customer Restrictions. Customer shall not (and shall not permit Users to): (a) sell, rent, lease, lend, sublicense, distribute, or otherwise transfer or provide access to the Service or the Application Program Interface (“API”) to any person, firm, or entity except as expressly authorized herein, access the Service to build a competitive service or product, or copy any feature, function or graphic for competitive purposes; (b) modify, adapt, alter or create derivative works from the Service or the API or to merge the Service or any subpart thereof (including proprietary markings) with other services or software; (c) remove or modify any proprietary markings or restrictive legends in the Service; (d) use the Service for delivery of content other than content provided by Provider or security and privacy awareness-related content; or (e) use the Service or any of Habitu8’s data, systems, network, or services to engage in, foster, or promote illegal, abusive, or irresponsible behavior, including, without limitation, accessing or using Habitu8 data, systems, or networks in an unauthorized manner, attempting to probe, scan, or test the vulnerability of a Habitu8 system or network, circumventing any Habitu8 security or authentication measures, monitoring Habitu8 data or traffic, interfering with any Habitu8 services, collecting or using from the Service email addresses, screen names, or other identifiers, collecting or using from the Service information without the consent of the owner or licensor, using any false, misleading, or deceptive information, using the Service to distribute software or tools that gather information, distribute advertisements, or engage in conduct that may result in retaliation against Habitu8 or its data, systems, or network.
3. Customer Responsibilities. Customer is responsible for Customer Content and use of the Service by Users. Prior to allowing any User access to the Service, Customer will ensure that such User agrees to be bound by the terms and conditions regulating use of the Services in accordance with this Agreement. Customer therefore agrees to require all Users to adhere to the Acceptable Use Policy provided by Habitu8 and included herein as Exhibit A, and Customer agrees to enforce such terms and conditions against its Users. Customer further agrees to: (a) maintain the confidentiality and security of passwords; (b) obtain from Users any consents necessary under this Agreement or to allow Habitu8 to provide the Services; (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Service; (d) notify Habitu8 promptly of any such unauthorized access or use of which it learns; and (e) cooperate reasonably in all respects with respect to implementation and maintenance of the Service.
4. Habitu8 Responsibilities. Habitu8 shall: (a) deploy all updates and upgrades to the Service and provided Content to Customer that Habitu8 provides to its customers generally for no additional charge; (b) provide Support (“Support”) pursuant to Habitu8’s Customer Support Guidelines, which are incorporated by reference. [NOTE: Habitu8’s customer support guidelines are based on the attached Bridge Support guidelines as issued by our hosting partner, Instructure. In all cases, Habitu8 is the customer’s primary support contact and Habitu8 is fully responsible for triage and resolution of support issues].
5. Fees. As consideration for the subscription to the Service, Customer shall pay all fees (“Fees”) set forth in the Order Form. All Fees will be due from Customer within thirty (30) days after receipt of invoice, unless otherwise agreed to in the Order Form. All Fees owed by Customer are exclusive of, and Customer shall pay, all sales, use, VAT, excise, withholding, and other taxes that may be levied in connection with this Agreement. Except as expressly set forth in this Agreement, all Fees are non-refundable.
6. Service Standard. Habitu8 will use commercially reasonable efforts to make the Service available with an Annual Uptime Percentage of at least 99.9% (“Service Commitment”). In the event Habitu8 does not meet the Service Commitment, Customer will be eligible to receive a service credit as described below. The maximum amount of the credit is 1/12 of the annual subscription fee for a twelve (12) month period. The service credit is calculated by taking the number of hours the Service was unavailable below the Service Commitment, and multiplying it by 3% of 1/12 the annual subscription fee. If the Customer has been using the Service for less than 365 days, the preceding 365 days will be used, but any days prior to Customer’s use of the Service will be deemed to have had 100% availability. Any unavailability occurring prior to a credit cannot be used for any future claims. The Service Commitment does not apply to any scheduled outages, standard maintenance windows, force majeure, and outages that result from any technology issue originating from Customer or a User. Customer’s sole and exclusive remedy for breach of the Service Commitment in this Section 6 will be for Habitu8 to provide a credit as provided in this Section 6; provided that Customer notifies Habitu8 in writing of such claim within thirty (30) days of becoming eligible for such claim.
7. Representations and Warranties. Habitu8 warrants that: (a) the functionality or features of the Service and Support may change but will not materially degrade during the Term; and (b) the Service will materially conform to its then current documentation. As Customer's exclusive remedy and Habitu8's sole liability for breach of the warranties set forth in this Section 7: (i) Habitu8 shall correct the non-conforming Service at no additional charge to Customer; or (ii) in the event Habitu8 is unable to correct such deficiencies after good-faith efforts, Habitu8 shall refund Customer amounts paid that are attributable to the defective Service from the date Habitu8 received such notice. To receive warranty remedies, Customer must promptly report deficiencies in writing to Habitu8, but no later than thirty (30) days after the deficiency is identified by Customer. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 7, HABITU8 AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, HABITU8 DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR BE ERROR-FREE.
8. Compliance. Each party will comply with all applicable laws and regulations (including all applicable export control laws and restrictions) with respect to its activities under this Agreement. Habitu8 will implement reasonable administrative, technical, and physical safeguards in an effort to secure its facilities and systems from unauthorized access and to secure the Customer Content.
9. Data. As between Provider and Customer, any and all information, data, results, plans, sketches, text, files, links, images, photos, videos, audio files, notes or other materials uploaded by a User through the Service (“Customer Content”) remain the sole property of Customer. Provider may use the Customer Content solely to provide and improve the Services in accordance with this Agreement or Customer’s instructions. As between the parties, Provider owns the aggregated and statistical data generated or related to the provision, operation or use of the Service, including measurement and usage statistics, configurations, survey responses, and performance results (the “Aggregated Data”). Nothing herein shall be construed as prohibiting Provider from utilizing the Aggregated Data, provided that Provider’s use of Aggregated Data will not reveal the identity, whether directly or indirectly, of any User or Customer.
10. Limitation of Liability. EACH PARTY AND ITS SUPPLIERS SHALL NOT BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE USE OR INABILITY TO USE THE SERVICES (INCLUDING, WITHOUT LIMITATION, COSTS OF DELAY, LOSS OF DATA, RECORDS OR INFORMATION, AND ANY FAILURE OF DELIVERY OF THE SERVICE), EVEN IF THE OTHER PARTY HAS BEEN NOTIFIED OF THE LIKELIHOOD OF SUCH DAMAGES. EXCEPT FOR A PARTY’S INDEMNITY OBLIGATIONS IN SECTION 15, EACH PARTY’S CUMULATIVE MAXIMUM LIABILITY FOR DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT, TORT OR OTHERWISE) SHALL NOT EXCEED THE AMOUNT PAID BY CUSTOMER UNDER THIS AGREEMENT WITHIN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO LIABILITY. CUSTOMER ACKNOWLEDGES THAT HABITU8 IS NOT RESPONSIBLE FOR THIRD-PARTY SERVICES OR CONTENT MADE AVAILABLE THROUGH THE SERVICE.
11. Confidentiality. Each party acknowledges that the other party may disclose its Confidential Information to the other in the performance of this Agreement. Accordingly, each party shall: (a) keep the Confidential Information disclosed by the other party confidential; (b) use Confidential Information only for purposes of fulfilling its obligations and exercising its rights hereunder; and (c) disclose such Confidential Information only to the receiving party’s employees who have a need to know and only for the purposes of fulfilling this Agreement or to the extent required by law. As used herein, “Confidential Information” means information in the possession or under the control of a party of a proprietary nature relating to the technical, marketing, product and/or business affairs or proprietary and trade secret information of that party in oral, graphic, written, electronic or machine readable form. Confidential Information shall not include information that: (i) the receiving party possesses prior to acquiring it from the other; (ii) becomes available to the public or trade through no violation by the receiving party of this paragraph; (iii) is given to the receiving party by a third-party not under a confidentiality obligation to the disclosing party; or (iv) is developed by the receiving party independently of and without reliance on confidential or proprietary information provided by the disclosing party. Further, any information obtained by monitoring, reviewing, or recording is subject to review by law enforcement organizations in connection with investigation or prosecution of possible criminal or unlawful activity on the Service as well as to disclosures required by or under applicable law or related government agency actions. Habitu8 will also comply with all court orders or subpoenas involving requests for such information.
12. Proprietary Rights. As between Customer and Habitu8, the Habitu8 Intellectual Property is, and shall at all times remain, the sole and exclusive property of Habitu8. Customer shall have no right to use, copy, distribute or create derivative works of the Habitu8 Intellectual Property except as expressly provided herein. Habitu8 shall have the right, in its sole discretion, to modify the Habitu8 Intellectual Property. “Habitu8 Intellectual Property” means: (a) the Service; (b) all improvements, changes, enhancements and components thereof; (c) all other proprietary materials of Habitu8 and/or its licensors that are delivered, provided or used by Habitu8 in the course of providing the Service; and (d) all other intellectual property owned by Habitu8 and all copyrights, patents, trademarks and trade names, trade secrets, specifications, methodologies, documentation, algorithms, criteria, designs, report formats and know-how, as well as and any underlying source code and object code related thereto.
13. Term and Termination. The term of this Agreement is specified in the Order Form (“Term”) and shall continue for its full duration unless earlier terminated by a party in accordance with this Section 13. Either party may terminate this Agreement for the material breach of any provision of this Agreement by the other party if such material breach remains uncured for thirty (30) days after receipt of written notice of such breach from the non-breaching party. Such termination right shall be in addition to any other rights and remedies that may be available to the non-breaching party. In the event the Agreement is terminated, all Order Forms are simultaneously terminated. Upon expiration or termination of this Agreement: (a) Customer shall immediately cease using the Services; and (b) in connection with certain aspects of the Service that feature an export function, for a period of three (3) months following expiration or termination, Customer may export the Customer Content through the API or by using the export feature within the Service.
14. Monitoring; Suspension of Service. Habitu8 may monitor the Service for a violation of this Agreement or any applicable law or third-party rights and may suspend any offending User(s) access to the Service and the offending Customer Content to the extent and for the duration of any such violation. Habitu8 will use commercially reasonable efforts to provide notice to Customer in advance of any suspension, provided, however, that no advance notice shall be required in the event the violation: (a) is causing direct harm to the function or integrity of the Service or (b) may result in direct liability to Habitu8. Customer agrees that Habitu8 will not be liable to Customer or a User if Habitu8 exercises its suspension rights as permitted by this Section 14.
15. Indemnification. Habitu8 will indemnify and defend Customer from and against any and all losses, liabilities, and claims (including reasonable attorneys' fees) arising out of any claim by a third-party alleging that the Service infringes or misappropriates the intellectual property rights of that third-party. Notwithstanding the foregoing, Habitu8 shall not be obligated to indemnify Customer if such infringement or misappropriation claim arises from: (a) the Customer Content or content from any User; (b) Customer’s or User’s misuse of the Service; or (c) Customer’s or User’s use of the Service in combination with any products, services, or technology provided by a third-party. If such a claim of infringement or misappropriation is made or threatened, Habitu8 may, in its sole discretion: (i) modify the Service so that it becomes non-infringing; (ii) obtain a license for Customer to continue its use of the Service; or (iii) notwithstanding Habitu8’s obligation to indemnify hereunder, terminate the Agreement with no liability to Customer or any User along with the return of the unused portion of any prepaid fees. Customer will indemnify and defend Habitu8 from and against any and all losses, liabilities, and claims (including reasonable attorneys' fees) arising out of any claim by a third-party regarding: (z) an allegation that the Customer Content or content from any User infringes or misappropriates the intellectual property rights of that third-party; or (y) use of the Service by Customer (or any User) in violation of this Agreement. The party seeking indemnification (the "Indemnified Party") shall provide the other party (the "Indemnifying Party") with prompt written notice upon becoming aware of any claim subject to indemnification hereunder and shall provide reasonable cooperation to the Indemnifying Party in the defense of or investigation of any claim, suit or proceeding. The Indemnifying Party, at its option, will have sole control of such defense, provided that the Indemnified Party is entitled to participate in its own defense at its sole expense. The Indemnifying Party shall not enter into any settlement or compromise of any such claim, suit or proceeding without the Indemnified Party's prior written consent, except that the Indemnifying Party may without such consent enter into any settlement of a claim that resolves the claim without liability to the Indemnified Party and without impairment to any of the Indemnified Party's rights or requiring the Indemnified Party to make any admission of liability.
16. Services. If the Order Form includes professional services, then Habitu8 shall provide Customer with the services and products described in the Statements of Work (the "Professional Services").
16.1 Contents of Statements of Work. The Parties shall describe each individual Professional Service to be provided under this agreement in its own statement of work (each, a "Statement of Work"), each one including (a) a full description of the particular Professional Service provided under the Statement of Work; (b) the applicable Fees and fee schedule, including any milestones and milestone payments if applicable, for the particular Professional Service, any materials the parties will provide for the particular Professional Service; (d) a timeline for providing the particular Professional Service; and (e) explicit reference to this agreement.
16.2 Integration. A Statement of Work that is signed by both parties, properly marked with a unique identification number, and refers explicitly to this agreement, will be deemed an integrated part of this agreement.
16.3 Severable. The parties may terminate any individual Statement of Work without effecting the remaining agreement or any other Statement of Work.
16.4 Conflict of Terms. If there is a conflict between the terms of this agreement and any Statement of Work, the Statement of Work will control.
16.5 Changes to Statements of Work. Either party may propose changes to the Professional Service, Fees, or schedule of a Statement of Work by giving written notice to the other party. If the parties agree to change the Professional Service, Fees, or schedule of a Statement of Work, they parties shall cooperate to execute a written amendment to the relevant Statement of Work detailing the changes.
16.6 Additional Statements of Work. Customer may request additional services by written notice to Habitu8 reasonably detailing the requested services. Promptly after receiving a request for additional services from Customer, Habitu8 shall assess the request to determine if there are circumstances preventing it from providing the services, and if there are no circumstances preventing it from providing the requested services, provide Customer with estimated Fees and timeline for the requested services.
16.7 Execute New Statement of Work. If after receiving Habitu8’s estimates Customer still wants the requested services, the parties shall execute a new Statement of Work according to the requirements of section 16.1 (Contents of Statement of Work).
17. General. Each party acknowledges that any breach, threatened or actual, of this Agreement, including, without limitation, with respect to unauthorized use of proprietary assets, will cause irreparable injury to the other party, such injury would not be quantifiable in monetary damages, and the other party would not have an adequate remedy at law. Each party therefore agrees that the other party shall be entitled, in addition to other available remedies, to seek and be awarded an injunction or other appropriate equitable relief from a court of competent jurisdiction restraining any breach, threatened or actual, of this Agreement. Each party waives any requirement that the other party post any bond or other security in the event any injunctive or equitable relief is sought by or awarded to enforce any provision of this Agreement. Any notice by a party under this Agreement shall be in writing and either personally delivered, delivered by facsimile, or sent via email or reputable overnight courier (such as Federal Express) or certified mail, postage prepaid and return receipt requested, addressed to the other party at the address specified in the Order Form or such other address of which either party may from time to time notify the other in accordance with this Section 17. A copy of all notices to Habitu8 shall be sent to: Habitu8, Inc., 21250 Hawthorne Blvd., Suite 700, Torrance, CA 90503, Attention: General Counsel. For purposes of service messages and notices about the Service, Habitu8 may place a banner notice or send an email to an email address associated with an account. It is the User’s responsibility to ensure that a current email address is associated with their account. All notices shall be in English and shall be deemed effective upon receipt. If Habitu8 is unable to perform its obligations under this Agreement due to circumstances beyond its reasonable control, including, but not limited to, acts of God, earthquakes, denial-of-service attacks, actions or decrees of governmental bodies, changes in applicable laws, or communication or power failures, such obligations will be suspended so long as those circumstances persist. This Agreement shall be interpreted, governed and construed by the laws of the State of Delaware without regard to principles of conflict of laws. Habitu8 is acting in performance of this Agreement as an independent contractor to Customer. If any term of this agreement is invalid or unenforceable, the other terms remain in effect and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Amendments to this Agreement must be made in writing and signed by both parties unless otherwise specified in the Agreement. The Parties agree that: (a) this Agreement constitutes the entire agreement between the parties with respect to the subject matter thereof, and any prior representations, statements, and agreements relating thereto are superseded by the terms of this Agreement; and (b) Customer may use purchase orders or similar documents only as proof of acceptance of each Order Form and for convenience only, and all terms and conditions (preprinted or otherwise and regardless of how referenced) shall be void and of no effect. Customer shall not assign this Agreement, in whole or in part, to any entity without Habitu8’s prior written consent. Any attempt to assign this Agreement, in whole or part, in contravention of this Section 17, shall be void. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their successors and permitted assigns. Any failure by either party to enforce the other party's strict performance of any provision of this Agreement will not constitute a waiver of its right to subsequently enforce such provision or any other provision of this Agreement. Customer agrees to allow Habitu8 to use its name, logo and non-competitive use details in both text and pictures in its various marketing communications and materials, in accordance with Customer’s trademark guidelines and policies. Any terms that by their nature survive termination or expiration of this agreement, will survive (including, but not limited to, Sections 10, 11, 12, 15 and 17).
Exhibit A: Acceptable Use Policy
These AUP Guidelines provide to you a personal, revocable, limited, non-exclusive, and non-transferable license to use the Service conditioned upon your continued compliance with these AUP Guidelines. Habitu8 reserves all rights not granted in the AUP Guidelines.
YOUR CONTENT & YOUR PERMISSIONS
When you use our Service, you provide us with things like your files, content, messages, etc. (“Your Content”). Your Content is yours. You represent that you have all necessary right, power, and authority to use the Service and share Your Content and will comply with all applicable laws when doing so. These AUP Guidelines don’t give us any rights to Your Content except for the limited rights that enable us to offer the Service. We need your permission to do things like host Your Content, back it up, or share it when you ask us to. This permission extends to our trusted third parties we work with. You therefore give us, and third parties (with whom we work) permission to use, display, host, share, and back up Your Content. By submitting Your Content, you also permit us to identify you by your username and as the contributor of Your Content.
SHARING YOUR CONTENT
Our Service lets you share Your Content with others, so please think carefully about what you share. By using the Service, you agree to do so responsibly and to not misuse the Service or help anyone else do so. This includes, but is not limited to, not doing or trying to do any of the following in connection with the Service:
· store, transmit or create libelous, obscene, deceptive, defamatory, pornographic, racist, sexual, hateful, unlawful, tortious or otherwise objectionable content (except as necessary for legitimate instructional purposes, but in all cases in compliance with applicable laws and regulations);
· modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Service except to the extent the foregoing restrictions are expressly prohibited by applicable law;
· harm, harass, threaten, or impersonate any person or violate the rights of any third party;
· probe, scan, or test the vulnerability of any system or network;
· interfere with or disrupt the integrity or performance of the Service;
· attempt to gain unauthorized access to the Service or its related systems or networks;
· introduce viruses, Trojan horses, worms, spyware, or other such malicious code into the Service;
· breach or otherwise circumvent any security or authentication measures;
· access, tamper with, or use non-public areas or parts of the Service, or shared areas of the Service you haven't been invited to;
· access, search, or create accounts for the Service by any means other than our publicly supported interfaces (for example, "scraping" or creating accounts in bulk);
· send unsolicited communications, promotions or advertisements, or spam;
· send altered, deceptive or false source-identifying information, including "spoofing" or "phishing";
· promote or advertise products or services other than your own without appropriate authorization;
· sell or re-sell the Service unless specifically authorized to do so;
· copy, reproduce, distribute, republish, download, display, post or transmit in any form or by any means any part of the Service unless specifically authorized to do so;
· remove or destroy any copyright notices or other proprietary markings contained on or in the Service; or
· violate the law in any way, including by storing, publishing or sharing material that is infringing, fraudulent, defamatory, misleading, or damaging to Habitu8 in any way.
You must provide all equipment necessary to access the Service and are responsible for all fees incurred when accessing the Service. Additionally, you’re responsible for your conduct and Your Content and your compliance with these AUP Guidelines. Content in the Service may be protected by others’ intellectual property rights. You therefore agree that you won’t copy, reproduce, create derivative works of, decompile, upload, download, share, or otherwise exploit third party content unless you have the right to do so. We may review your conduct and content for compliance with these AUP Guidelines and remove content from the Service at any time and without notice. With that said, we have no obligation to do so. We aren’t responsible for the content people post and share via the Service. You agree also to safeguard your password to the Service, make sure that others don’t have access to it, and keep your account information current.
THIRD PARTY WEBSITES
The Service may contain links to third-party websites that are not under our control. We are not responsible for such third-party websites.
The Service is protected by copyright, trademark, and other US and foreign laws. These AUP Guidelines don’t grant you any right, title, or interest in the Service or others’ content in the Service. We welcome feedback, but note that we may use comments or suggestions without any obligation to you.
We respect the intellectual property of others and ask that you do too. We respond to notices of alleged infringement after receipt of a proper notice that complies with the law and is received by our designated agent. We reserve the right to delete or disable content alleged to be infringing and terminate accounts of repeat infringers. If you believe that any content in the Service in a way that constitutes infringement, please provide our designated agent with the following information:
A. an electronic or physical signature of the person authorized to act on behalf of the rights owner;
B. a description of the content you claim is being infringed;
C. a description or link to the location of the material claim is infringing;
D. your physical address, telephone number and e-mail address;
E. a statement that you have a good faith belief that the content is not authorized by the rights owner, its agent or the law;
F. a statement, made under penalty of perjury, that the information in your notice is accurate and that you are the owner or authorized to act on behalf of the owner.
Contact information for Habitu8’s designated agent for notice of claims of infringement is as follows: General Counsel; 21250 Hawthorne Blvd., Suite 700, Torrance, CA 90503; firstname.lastname@example.org . Habitu8 may also take any appropriate action in the event it receives a proper counter-notice under the law.
TERMINATION & RIGHT TO SUSPEND
You’re free to stop using our Service at any time. We also reserve the right to suspend or end the Service at any time at our discretion and without notice. For example, we may suspend or terminate your use of the Service and remove Your Content if you’re not complying with these AUP Guidelines, or using the Service in a manner that may cause us legal liability, disrupt the Service, disrupt others’ use of the Service or, in our sole opinion, reason, cause harm. All provisions of these AUP Guidelines, which by their nature should survive, will survive termination of the Service.
SERVICE “AS IS”
HABITU8 AND ITS PARTNERS MAKE NO WARRANTIES, EITHER EXPRESS OR IMPLIED, ABOUT THE SERVICE. THE SERVICE IS PROVIDED “AS IS.” IN ADDITION, WE DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. ANY CONTENT DOWNLOADED OR ACCESSED FROM THE SERVICE IS ACCESSED AT YOUR OWN RISK.
LIMITATION OF LIABILITY
YOU EXPRESSLY ABSOLVE AND RELEASE HABITU8 FROM ANY CLAIM OF HARM RESULTING FROM A CAUSE BEYOND HABITU8’S CONTROL. YOU FURTHER AGREE THAT IN NO EVENT SHALL HABITU8 AND ITS SUPPLIERS BE LIABLE FOR ANY DAMAGES OTHER THAN DIRECT DAMAGES, OR ANY LOSS OF USE, DATA BUSINESS, OR PROFITS. THIS WILL BE REGARDLESS OF WHETHER OR NOT HABITU8 OR ANY OF ITS PARTNERS HAS BEEN WARNED OF THE POSSIBILITY OF SUCH DAMAGES. ADDITIONALLY, HABITU8 AND ITS SUPPLIERS WILL NOT BE LIABLE TO YOU FOR MORE THAN ANY AMOUNTS RECEIVED BY HABITU8 FROM YOU AS A RESULT OF YOUR PERSONAL USE OF THE SERVICE IN THE 12 MONTHS PRECEDING YOUR CLAIM. IF YOU HAVE NOT PAID INDIVIDUALLY ANY AMOUNTS IN THE 12 MONTHS PRECEDING YOUR CLAIM, HABITU8’S SOLE AND EXCLUSIVE LIABILITY SHALL BE NO MORE THAN $50. MOREOVER, HABITU8 SHALL NOT BE LIABLE FOR THE LOSS OR FAILURE TO STORE YOUR CONTENT, AND YOU UNDERSTAND AND AGREE THAT BY USING THE SERVICE, YOU AGREE TO WAIVE THE RIGHT TO A TRIAL BY JURY AND THE RIGHT TO PARTICIPATE IN A CLASS ACTION RELATED TO USE OF THE SERVICE OR BREACH OF THESE AUP GUIDELINES.
These AUP Guidelines and your use of the Service will be interpreted, governed and construed by the laws of Delaware law except for its conflicts of laws principles, unless otherwise agreed in a separate written agreement with Habitu8 or as required by a mandatory law of a competent jurisdiction.
These AUP Guidelines set forth terms governing your use of the Service, and supersede and replace any other prior or contemporaneous agreements applicable to the subject matter of these AUP Guidelines. These AUP Guidelines create no third-party beneficiary rights. These AUP Guidelines shall inure to the benefit of Habitu8 and its respective legal representatives, successors, and assigns.
WAIVER, SEVERABILITY & ASSIGNMENT
Habitu8’s failure to enforce a provision is not a waiver of its right to do so later. You may not assign any of your rights under these AUP Guidelines, and any such attempt will be void. Habitu8 may assign its rights to any of its affiliates or subsidiaries, or to any successor in interest of any business associated with the Service. If any provision of these AUP Guidelines is held by a court of competent jurisdiction to be contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of these AUP Guidelines will remain in full force and effect.
We may revise these AUP Guidelines from time to time. If a revision meaningfully reduces your rights, we will provide notice to you (by, for example, sending a message to the email address associated with your account). By continuing to use or access the Service after the revisions come into effect, you agree to be bound by and subject to the revised AUP Guidelines.
For any notices relating to these AUP Guidelines, you may contact Habitu8 by sending an email to email@example.com .