BY ACCESSING OR USING THE SITE OR THE SERVICE IN ANY WAY, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THIS AGREEMENT, WHETHER OR NOT YOU ARE A REGISTERED USER OF THE SITE OR THE SERVICE. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SITE OR THE SERVICE. If you accept or agree to the terms and conditions of this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to this Agreement and, in such event “you” and “your” will refer and apply to that company or other legal entity.
1. ACCOUNT AND SERVICE
You may use the Service only if you can form a binding contract with Cowbell, and only in compliance with this Agreement and all applicable local, state, national, and international laws, rules and regulations. Any use or access to the Service by anyone under 18 is strictly prohibited and in violation of this Agreement.
B. Paid Service
If you sign up for a Paid Service (as defined below), Cowbell will provide you (a “Paying Customer”) and your Users, a subscription to access and use the Paid Service in accordance with this Agreement (including the terms and conditions contained in your Customer Agreement). Unless otherwise specified in your Customer Agreement, the Service is purchased as a subscription and may be used for no more than the specified number of times as described in the Customer Agreement.
In order to access and use the Service, you must register to create an account. Your account gives you access to the Service and functionality that we may establish and maintain from time to time and in our sole discretion.
You may never use another user’s account without permission. You are solely responsible for the activity that occurs on your account, including the compliance with this Agreement by your Users, and you must keep your account password secure. You may create your own account, or one may be assigned or provided to you by someone else, for example, your employer, an administrator or another user who has invited you to access and use the Service. Such employer, administrator or other user may be able to access and view your use of the Service as well as restrict or terminate your access. Further, if you have accessed your account via an existing third party service, you are entirely responsible for maintaining the confidentiality of such third party service password. You must notify Cowbell immediately of any breach of security or unauthorized use of your account. Cowbell will not be liable for any losses caused by any unauthorized use of your account.
By providing your email address to Cowbell, you consent to our using your email address to send you Service-related notices, including any notices required by law, in lieu of communication by postal mail. We may also use your email address to send you other messages, such as changes to features of the Service and special offers. If you do not want to receive such email messages, you may opt out in the email message. Opting out may prevent you from receiving email messages regarding updates, improvements, or offers.
D. Service Rules
You agree not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Site or the Service in any medium other than as allowed by the Site or the Service and this Agreement, including without limitation by any automated or non-automated “scraping”; (ii) using any automated system (other than any functionalities of the Site or the Service), including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Site or the Service in a manner that sends more request messages to the Cowbell servers than a human can reasonably produce in the same period of time by using a conventional online web browser; (iii) transmitting spam, chain letters, or other unsolicited email; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Site or the Service; (v) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the Site or the Service; (vii) using the Site or the Service for any commercial solicitation purposes; (viii) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (ix) defaming, abusing, harassing, stalking, threatening or otherwise violating the legal rights (such as of privacy and publicity) of any other use of the Site or the Service or staff member of Cowbell; (x) interfering with or any activity that threatens the performance, security or proper functioning of the Site or the Service; (xi) accessing any content on the Site or the Service through any technology or means other than those provided or authorized by the Site or the Service; (xii) attempting to decipher, decompile, disassemble or reverse engineer any of the software or algorithms used to provide the Site or the Service; (xiii) bypassing the measures we may use to prevent or restrict access to the Site or the Service, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Site or the Service or the content therein; (xiv) attempting to access unauthorized user accounts inappropriately; (xv) using the Site or the Service for any purpose or in any manner that violates applicable laws and government regulations, including without limitation privacy laws and aerospace laws, or infringes the rights of any third party, such as privacy rights; or (xvi) encouraging or enabling any other individual to do any of the foregoing. Further, you represent and warrant that all information you provide through the Site or the Service, and all User Data (as defined below), is truthful and accurate, and that you will notify Cowbell or otherwise update such information and User Data in the event of any misrepresentation or inaccuracy.
We may, without prior notice, change the Site or the Service, stop providing the Site or the Service or features of the Site or the Service, to you or to users generally; or create usage limits for the Site or the Service. We may permanently or temporarily terminate or suspend your access to the Site or the Service without notice and liability for any reason, including if in our sole determination you violate any provision of this Agreement, or for no reason. Upon termination for any reason or no reason, you continue to be bound by this Agreement.
2. PROPRIETARY RIGHTS
A. Cowbell’s Rights
The Site or the Service and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, reports generated by the Site or the Service, and copyrights (the “Cowbell Content”), and all Intellectual Property Rights (as defined below) related thereto, are the exclusive property of Cowbell or, as applicable, its licensors, and Cowbell reserves all rights, title and interest therein. No rights are granted to you hereunder other than as expressly set forth herein. Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any of Cowbell’s Intellectual Property Rights, and you agree not to sell, license, rent, modify, publicly distribute, publicly transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any materials or content accessible on the Site or the Service. Use of the Cowbell Content or materials on the Site or the Service for any purpose not expressly permitted by this Agreement is strictly prohibited.
“Intellectual Property Rights” means any and all software, images, text, graphics, illustrations, logos, patents, inventions, copyrights, works of authorship, trademarks, trade secrets, know-how, designs, and all other intellectual property rights (whether registered or unregistered and including the right to register, renew or extend such foregoing intellectual property) as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory protected under the laws of any governmental authority having jurisdiction.
B. User Data
“User Data” means data, text, graphics, photos, general user data including user log data, analytic and electronic data and information or other materials that a User posts, uploads, publishes, submits or transmits to be made available through, or is collected by, the Site or the Service, but excludes Feedback (as defined below).
Users may post, upload, publish, submit or transmit User Data to be made available through the Site or the Service. By making available any User Data through the Site or the Service, and unless you have agreed otherwise with Cowbell in writing, you hereby grant to Cowbell, subject to the restrictions herein, a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, access, view, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast and otherwise exploit such User Data on, through or by means of the Site or the Service. Cowbell does not claim any ownership rights in any such User Data and nothing in this Agreement will be deemed to restrict any rights that you may have to use and exploit any such User Data.
Notwithstanding anything to the contrary contained herein, we may use the User Data to the extent necessary to (i) provide the Site and the Service to you and your Users, (ii) maintain and improve the Site and Service, (iii) provide you with access to and information about special product offers and promotions, and (iv) in aggregated and anonymized form for our internal business purposes, including providing and optimizing the Site and the Service and products, performing analytics, and marketing. We may refuse to accept or to transmit any User Data or delete any User Data from the Site or the Service at any time, if it determines in its sole discretion that the User Data is in violation of this Agreement or is otherwise inappropriate.
You acknowledge and agree that you are solely responsible for all User Data that you make available through the Site or the Service. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all User Data that you make available through the Site or the Service or you have all rights, licenses, consents and releases that are necessary to grant to Cowbell the rights in such User Data, as contemplated under this Agreement; and (ii) neither the User Data nor your posting, uploading, publication, submission or transmittal of the User Data or Cowbell’s use of the User Data (or any portion thereof) on, through or by means of the Site or the Service will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
Following the termination or cancellation of your account or Paid Service, we reserve the right to delete all your data, including any User Data, in the normal course of operation. We may not be able to recover your User Data once your account is cancelled. We may retain your User Data for regulatory or audit purposes or to otherwise comply with the law.
C. Derived Data
If you are a Paying Customer, you shall own and retain all right, title, and interest in and to any data, reports and analyses derived from your use of the Paid Service (the “Derived Data”). You hereby grant to us a worldwide, royalty-free, non-exclusive license to use the Derived Product (i) for marketing purposes, (ii) as necessary for to provide the Service in accordance with this Agreement (iii) for the purposes of providing you with access to and information about customized features, new functionality and partner integrations, (iv) for sharing with our partners in anonymized, aggregated form and (v) for our own internal business purposes, provided that all Derived Data shall at all times be subject to the confidentiality obligations contained herein.
You may choose to or we may invite you to submit comments or feedback (including bug reports, suggestions, enhancement requests, recommendations or other content) related to the Site or the Service (“Feedback”). By submitting any Feedback, you hereby assign to us all right, title, and interest in and to the Feedback, if any, agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Cowbell under any fiduciary or other obligation, and that we are free to use the Feedback without any additional compensation to you, and/or to disclose the Feedback on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, Cowbell does not waive any rights to use similar or related ideas previously known to Cowbell, or developed by its employees, or obtained from sources other than you. Nothing in this Agreement will restrict our right to use, profit from, disclose, publish, keep secret, or otherwise exploit any Feedback for improving or otherwise modifying the Site or the Service or any of our products, without compensating or crediting you or a User.
E. Residual Rights
Cowbell is in the business of providing training, consulting, professional, and support services to third parties that are or may be substantially similar to the Service being provided to you. You agree that Cowbell, its employees, and agents will be free to use and employ their general skills, know-how, and expertise, and to use, disclose, and employ any generalized ideas, concepts, know- how, methods, techniques, or skills gained or learned during the course of providing the Service and retained in the unaided memory of Cowbell’s employees or agents, subject to our obligations with respect to your Confidential Information.
3. PAID SERVICES
A. Billing Policies
Certain portions or features of the Site or the Service, including insurance policies, may only be made available on a paid basis (“Paid Service”). If you elect to use a Paid Service, you agree to the terms of sale, pricing, payment and billing policies applicable to such Paid Service posted on the Site or set forth in your Customer Agreement.
Unless otherwise indicated on a Customer Agreement, all charges associated with your use of the Paid Service (the “Service Fees”) are due in full upon commencement of the period for which you have agreed to purchase the Paid Service (a “Paid Service Term”). Except as set forth in your Customer Agreement, the Service Fees applicable to your use of the Paid Service for any subsequent Paid Service Term shall be our standard Service Fees for such Paid Service as of the time such subsequent Paid Service Term commences. A Paid Service will not be activated until your payment information is validated and we receive payment for the Service Fees. You hereby authorize Cowbell to bill your payment account or other payment instrument in advance on a periodic basis in accordance with the terms of the Paid Service you have purchased until you cancel your Paid Service, and you further agree to pay any Service Fees so incurred. If you fail to pay the Service Fees or charges for other services indicated on the Site or your Customer Agreement within five (5) business days of our notice to you that payment is due or delinquent, or if your Payment Information is not accurate, current and complete, in addition to our other remedies, we may suspend or terminate your use of the Site or the Service.
Cowbell reserves the right to modify the Paid Service and Service Fees from time to time at its sole discretion. We will provide you with notice (“Change Notice”) of any material modifications to a Paid Service or Service Fees for which you have purchased by sending an email to the email address that you have registered under your account. If you do not cancel your Paid Service within 30 days from the date of the Change Notice, you will be deemed to have irrevocably accepted the modifications to the Paid Service and Service Fees identified in the Change Notice.
B. Cancellation and Termination
Either you or Cowbell may elect to terminate your account and Paid Service as of the end of your then current Paid Service Term by providing notice on or prior to the date thirty (30) days preceding the end of such Paid Service Term. Unless your account or Paid Service is so terminated, the Paid Service will renew for a subsequent Paid Service Term equivalent in length to the then expiring Paid Service Term.
C. No Refunds
No refunds or credits for Service Fees or other fees or payments will be provided to you (i) if you elect to downgrade your Paid Service or (ii) if you elect to terminate your Paid Service or cancel your account prior to the end of your then effective Paid Service Term. In the event that Cowbell suspends or terminates your account or this Agreement, you understand and agree that it is in the sole discretion of Cowbell to issue a refund for any unused portion of a Paid Service.
D. Payment Information; Taxes
All information that you provide in connection with a purchase or transaction or other monetary transaction interaction with the Site or the Service must be accurate, complete, and current. You agree to pay all charges incurred by users of your credit card, debit card, or other payment method used in connection with a purchase or transaction or other monetary transaction interaction with the Site or the Service at the prices in effect when such charges are incurred.
Unless otherwise stated, our fees and charges do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales and use, or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with your purchases hereunder.
As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”) in connection with the Site or the Service, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. However, Confidential Information shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information.
B. Restrictions on Use and Disclosure
Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who are subject to confidentiality obligations no less stringent than those herein.
If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
D. Equitable Relief
If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections hereunder, the Receiving Party agrees that such breach would cause Disclosing Party irreparable injury, for which monetary compensation would not provide adequate compensation, and Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, without proving actual damage or posting bond or other security, it being specifically acknowledged by the Parties that any other available remedies are inadequate.
We have implemented commercially reasonable technical and organizational measures designed to secure your information from accidental loss and from unauthorized access, use, alteration or disclosure. There is no sharing of any data between Users. All of Cowbell’s employees receive appropriate training on security and privacy issues. However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or use your information for improper purposes, therefore transmission of such information on our site is entirely at your own risk.
6. THIRD PARTY ACCOUNTS AND LINKS
As part of the functionality of the Site or the Service, you or Cowbell may link your account to online accounts with third party service providers (each such account, a “Third Party Account”), by either: (i) providing your Third Party Account login information through the Site or the Service; (ii) allowing Cowbell to access your Third Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third Party Account; or (iii) allowing Cowbell to create Third Party Accounts on your behalf, as permitted under the applicable terms and conditions that govern your use of such Third Party Accounts. You represent that you are entitled to disclose your Third Party Account login information to Cowbell and/or grant Cowbell access to your Third Party Account (including, but not limited to, for use for the purposes described herein), without breach by you of any of the terms and conditions that govern your use of the applicable Third Party Account and without obligating Cowbell to pay any fees or making Cowbell subject to any usage limitations imposed by such third party service providers. By granting Cowbell access to any Third Party Accounts, you understand that (i) Cowbell will access, make available and store (if applicable) any publicly available content that you have provided to and stored in your Third Party Account (“SNS Content”) so that it is available on and through the Site or the Service via your account and (ii) Cowbell may submit and receive additional information to your Third Party Account to the extent you are notified when you link your Account with the Third Party Account. Unless otherwise specified in this Agreement, all SNS Content, if any, shall be considered to be User Data (as defined above) for all purposes of this Agreement. Depending on the Third Party Accounts you choose and subject to the privacy settings that you have set in such Third Party Accounts, personally identifiable information that you post to your Third Party Accounts may be available on and through your account on the Site or the Service and may be subject to less stringent security measures than were in place with such Third Party Accounts. Please note that if a Third Party Account or associated service becomes unavailable or Cowbell’s access to such Third Party Account is terminated by the third party service provider, then SNS Content will no longer be available on and through the Site or the Service. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD PARTY SERVICE PROVIDERS. Cowbell makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or non-infringement, and Cowbell is not responsible for any SNS Content. At your request, Cowbell will deactivate the connection between the Site or the Service and your Third Party Account and delete any information stored on Cowbell’s servers that was obtained through such Third Party Account.
7. INSURANCE QUOTES AND COVERAGE DESCRIPTIONS
All quotes generated by Cowbell are based upon the information you provided and are not a contract, binder, or agreement to extend insurance coverage. Any coverage descriptions provided on the Site or in the Service are general descriptions of available coverages and are not a statement of contract. Any insurance decision is solely and ultimately the responsibility of the insured, and Cowbell is not liable for any information that is inaccurate, missing, or misinterpreted. Coverages and availability may vary by state or province. The scope, limits, exclusions, premiums, and other aspects of the insurance coverages will be subject to the terms and conditions of the actual insurance agreement or policy.
A. By Cowbell
Cowbell shall defend any Paying Customer against any claim, demand, suit, or proceeding (“Claim”) arising from a third party alleging that the use of the Site or the Service as permitted hereunder infringes or misappropriates the Intellectual Property Rights of such third party, and shall indemnify such Paying Customer for any damages finally awarded against, and for reasonable attorneys’ fees incurred by, such Paying Customer in connection with any such Claim; provided that such Paying Customer (i) promptly gives Cowbell written notice of the Claim, (ii) gives Cowbell sole control of the defense and settlement of the Claim (provided that Cowbell may not settle or defend any Claim unless it unconditionally releases you of all liability), and (iii) provides to Cowbell all reasonable assistance, at Cowbell’s expense.
B. By You
You shall defend Cowbell and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, against any Claim made or brought against Cowbell by a third party arising from or related to (i) your use of and access to the Site or the Service, including any User Data or User Data transmitted or received by your violation of this Agreement (including any Customer Agreement), including without limitation your breach of any of the representations and warranties, (ii) your violation of any third-party right, including without limitation any right of privacy, publicity rights or Intellectual Property Rights or any law, rule or regulation of the United States or any other country; (iii) any other party’s access and use of the Site or the Service with your account; (iv) your disclosure of any end user or consumer information as described in Section 8 above; or (vii) allegations that any User Data was false or misleading, or (viii) your gross negligence or willful misconduct, and you shall indemnify Cowbell for any damages, losses, liabilities, costs or debt, and expenses (including attorneys’ fees) incurred by Cowbell in connection with any such Claim.
9. NO WARRANTY
THE SITE AND THE SERVICE IS PROVIDED TO YOU “AS-IS” AND “AS AVAILABLE” AND YOU EXPRESSLY UNDERSTANDS AND AGREES THAT ALL USE OF THE DERIVED DATA, THE SITE AND THE SERVICE IS AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SITE AND THE SERVICE IS PROVIDED WITHOUT, AND COWBELL MAKES NO, WARRANTIES OF ANY KIND, STATUTORY OR OTHERWISE, WHETHER EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIMS, IMPLIED WARRANTIES INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM COWBELL OR THROUGH THE SITE OR THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, COWBELL, ITS SUBSIDIARIES, AND ITS LICENSORS DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE SITE OR THE SERVICE WILL MEET YOUR REQUIREMENTS; THAT THE SITE OR THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SITE OR THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE OR THE SERVICE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE SITE OR THE SERVICE.
COWBELL DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SITE OR THE SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, AND COWBELL WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
10. LIMITATION OF LIABILITY
OTHER THAN AS DESCRIBED IN SECTIONS 4 AND 8A ABOVE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL COWBELL, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THE SITE OR THE SERVICE AND INFORMATION PROVIDED, OR YOUR RELIANCE ON OR USE OF THE SITE OR THE SERVICE AND INFORMATION PROVIDED, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETIONS OR ANY FAILURE OF PERFORMANCE. UNDER NO CIRCUMSTANCES WILL COWBELL BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SITE OR THE SERVICE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COWBELL ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE SITE OR THE SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SITE OR THE SERVICE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SITE OR THE SERVICE BY ANY THIRD PARTY; AND/OR (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SITE OR THE SERVICE.
EXCEPT FOR CLAIMS FOR ATTORNEY’S FEES AND OTHER LITIGATION COSTS THAT A PAYING CUSTOMER IS ENTITLED TO RECOVER UNDER SECTIONS 4 AND 8AABOVE, IN NO EVENT SHALL COWBELL’S LIABILITY ARISING OUT OF OR RELATED TO SECTIONS 4 AND 8A ABOVE, WHETHER DUE TO NEGLIGENCE OR OTHERWISE, OR IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, (I) IN THE AGGREGATE, EXCEED THE TOTAL AMOUNT PAID BY THE RELEVANT PAYING CUSTOMER HEREUNDER OR, (II) WITH RESPECT TO ANY SINGLE INCIDENT GIVING RISE TO LIABILITY, EXCEED THE AMOUNT PAID OR PAYABLE BY THE RELEVANT PAYING CUSTOMER HEREUNDER IN THE TWELVE MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF COWBELL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
THE SITE AND THE SERVICE ARE CONTROLLED AND OPERATED FROM FACILITIES IN THE UNITED STATES. COWBELL MAKES NO REPRESENTATIONS THAT THE SITE OR THE SERVICE IS APPROPRIATE OR AVAILABLE FOR USE IN OTHER LOCATIONS. THOSE WHO ACCESS OR USE THE SITE OR THE SERVICE FROM OTHER JURISDICTIONS DO SO AT THEIR OWN VOLITION AND ARE ENTIRELY RESPONSIBLE FOR COMPLIANCE WITH ALL APPLICABLE UNITED STATES AND LOCAL LAWS AND REGULATIONS, INCLUDING BUT NOT LIMITED TO EXPORT AND IMPORT REGULATIONS. YOU MAY NOT USE THE SITE OR THE SERVICE IF YOU ARE A RESIDENT OF A COUNTRY EMBARGOED BY THE UNITED STATES, OR ARE A FOREIGN PERSON OR ENTITY BLOCKED OR DENIED BY THE UNITED STATES GOVERNMENT.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Cowbell without restriction.
12. DIGITAL MILLENNIUM COPYRIGHT ACT NOTICE
If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible through the Site or the Service, please notify Cowbell’s Copyright Agent, as set forth in the Digital Millennium Copyright Act of 1998 (DMCA). For your complaint to be valid under the DMCA, you must provide the following information in writing:
- An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
- Identification of the copyrighted work that you claim is being infringed;
- Identification of the material that is claimed to be infringing and where it is located on the Site or the Service;
- Information reasonably sufficient to permit Cowbell to contact you, such as your address, telephone number, and e-mail address;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and
- A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.
Cowbell’s Designated Copyright Agent to receive notifications of claimed infringement can be reached as follows:
Cowbell Cyber, Inc.
ATTN: Copyright Agent
6800 Koll Center Pkwy, Suite 210
Pleasanton CA 94566
For clarity, only DMCA notices should go to the Cowbell Cyber, Inc. Designated Copyright Agent. Any other feedback, comments, requests for technical support or other communications should be directed to us via [email protected].
A. Governing Law; Agreement to Arbitrate
- Choice of Law. These Terms and the rights of the parties hereunder will be governed by and construed in accordance with the laws of the state of California, exclusive of conflict or choice of law rules. Notwithstanding the provision in the preceding paragraph with respect to applicable substantive law, any arbitration conducted pursuant to these Terms will be governed by the Federal Arbitration Act (9 U.S.C., Secs. 1-16).
- Arbitration. To the extent feasible, the parties desire to resolve any dispute, claim, or controversy arising out of or relating to your use of or access of the Site and these Terms, including the determination of the scope or applicability of this agreement to arbitration (a “Dispute”) through discussions and negotiations between each other. The parties agree to attempt to resolve any Disputes by negotiation with the other party (by phone, electronic correspondence, or written correspondence). If, after good faith discussions, the Dispute(s) cannot be resolved solely between the parties, such Dispute(s) will be determined by arbitration in the English language in San Francisco County, California before a single arbitrator. The arbitration will be administered by Judicial Arbitration and Mediation Services (“JAMS”) in accordance with the Streamlined Arbitration Rules and Procedures (“Rules”) of JAMS, which are available on the JAMS website and hereby incorporated by reference. You either acknowledge and agree that you have read and understand the rules of JAMS or waive your opportunity to read the rules of JAMS and any claim that the rules of JAMS are unfair or should not apply for any reason. You and Cowbell agree that the state or federal courts sitting in San Francisco County, California have exclusive jurisdiction over any appeals and the enforcement of an arbitration award. This provision will not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
- Conduct of Arbitration. The arbitration will be commenced by the claimant party filing a demand for arbitration with JAMS and serving the demand on the opposing party. Within 30 calendar days of the date the demand for arbitration is filed, the parties will select an arbitrator by following the Rules’ arbitrator selection procedures. Except as may be required by law, neither party nor the arbitrator may disclose the existence, content, or results of any arbitration under these Terms without the prior written consent of both parties. The arbitrator’s award will be in writing, in the English language, and accompanied by a reasoned opinion and a written statement of the essential findings and conclusions on which the award is based.
- Costs; Judgment. The arbitrator will determine how the costs and expenses of the arbitration will be allocated between the parties and may award attorneys’ fees. Each party shall bear the burden of its own counsel fees incurred in connection with any arbitration proceedings. Judgment upon the award returned by the arbitrator may be entered in any court having jurisdiction over the parties or their assets or application of enforcement, as the case may be. Any award by the arbitrator shall be the sole and exclusive remedy of the parties. The parties hereby waive all rights to judicial review of the arbitrator’s decision and any award contained therein.
B. Notification Procedures
Cowbell may provide notifications, whether such notifications are required by law or are for marketing or other business-related purposes, to you via email notice, written or hard copy notice, or through conspicuous posting of such notice on our website, as determined by Cowbell in our sole discretion. Cowbell reserves the right to determine the form and means of providing notifications to our Users, provided that you may opt out of certain means of notification as described in this Agreement. Cowbell is not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us. We recommend that you add [email protected] to your email address book to help ensure you receive email notifications from us.
C. Independent Contractors
All Paying Customers are independent contractors. This Agreement do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between Cowbell and any Paying Customer.
D. No Waiver; Severability
No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
E. Entire Agreement; Heading
This Agreement, as may be amended by Cowbell from time to time and including your Customer Agreements, shall constitute the entire agreement between you and Cowbell and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Notwithstanding the foregoing, additional terms may apply to certain features or functionality Cowbell offers through the Site or the Service (the “Additional Terms”). In those instances, we will notify you of such Additional Terms prior to the activation of these features or functionality and the activation of these features or functionality in your account will be considered acceptance of the Additional Terms. All such Additional Terms will be considered incorporated into this Agreement when you activate the feature or functionality. Where there’ is a conflict between this Agreement and the Additional Terms, the Additional Terms will control. To the extent of any conflict or inconsistency between this Agreement and your Customer Agreement, your Customer Agreement shall prevail. To the extent of any conflict or inconsistency between this Agreement and any Additional Terms, the Additional Terms shall prevail.
The headings used herein have been inserted for convenience only and do not affect the interpretation of this Agreement.
Sections 1, 2, 4, 8, 9, 10 and 13 shall survive any termination of this Agreement. Termination of such agreement shall not limit your or Cowbell’s liability for obligations accrued as of or prior to such termination or for any breach of this Agreement.