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In consideration of your visiting and using our Website, you represent that you are able to form a binding contract and that you are not barred from receiving services provided in this website under the laws of the United States or the applicable jurisdiction. You also agree to that any information you provide about yourself is accurate and complete information at the time provided. You agree to timely update any information provided to Jacobsen to keep it accurate and complete. Failure to accurately and completely provide, and timely update, information about yourself is reasonable grounds for Jacobsen to suspend or terminate your account and refuse you service in the future.
You will not (i) reproduce, duplicate, copy, sell, resell or exploit any part of the Service, or (ii) use or access the Service for any commercial purpose.
The information and materials on this website are intended for informational purposes only and are not intended to be treated as financial and/or trading advice. Neither the website nor the use of information from the website creates a joint venture, partnership or customer relationship. Should you wish to create a customer relationship to purchase guides, databases, tools and information, you will need to enter into a Subscription Agreement. Any links to other websites are included for informational purposes only and do not imply an affiliation with, endorsement or a sponsorship of other sites.
Certain names, logos, and/or phrases in our Website may constitute trademarks and/or copyrights of Jacobsen or its clients. The mark "Jacobsen" and the contents of this Website are the sole property of By-Products Interactive, Inc. d/b/a Jacobsen . Reproduction in whole or in part is strictly prohibited without the expressly written permission of Jacobsen.
All of the writing in our Website is the copyrighted property of By-Products Interactive, Inc. d/b/a Jacobsen and is protected as such. None of the material may be reproduced without our prior written permission. This copyright extends from original material, to the material contained in the books for sale, to the raw compilations of posts in our folders, to any edited and filtered compilations of posts that we may sell and distribute. The right to download and store or output the materials found on Jacobsen is granted for viewing use only. Materials may not be reproduced in any form. Any reproduction or editing by any means mechanical or electronic without the explicit written permission of Jacobsen is expressly prohibited.
Jacobsen and Jacobsen's staff are not and will not be responsible for any misleading, false, or otherwise injurious information and advice communicated in our Website or for any results obtained from the use of such information or advice. Jacobsen will not be liable for any loss or damage suffered by a user through the user's reliance on information and advice gained in this Website.
Jacobsen may provide, or third parties may provide, links to other World Wide Web sites or resources. You acknowledge and agree that Jacobsen is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any Content, advertising, products or other materials on or available from such sites or resources. You further acknowledge and agree that Jacobsen shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Content, goods or services available on or through any such site or resource.
You agree to follow the following general rules in using the Website:
Content from www.Jacobsen.com, including but not limited to any member profile information such as member names, email addresses, member contact information, or member-personalized information, may not be taken from the website and used for any purpose. Names, email addresses and other contact information from member profile information or the pages and postings on this site may not be used by outside vendors or other third parties for purposes of solicitation. Unsolicited emails to our members or to vendors may constitute misrepresentation, misappropriation of Jacobsen's business name and reputation, unfair competition, and may also violate laws that prohibit unsolicited email, for which Jacobsen shall be entitled to take appropriate legal action including seeking injunctive relief, an accounting of profits, damages, legal fees and costs. Notwithstanding the foregoing, Jacobsen users may link to this website, but only upon obtaining written consent of Jacobsen.
Jacobsen reserves the right from time to time to make modifications and changes to our Website. These modifications and changes may include, but are not limited to, discontinuing, temporarily or permanently, any service offered by, or through Jacobsen (or any part thereof) with or without notice. You agree that Jacobsen shall not be liable to you or to any other party for any changes and modifications to our Website.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
YOUR USE OF OUR WEBSITE IS AT YOUR SOLE RISK. THE SERVICES PROVIDED IN OUR WEBSITE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. JACOBSEN EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
JACOBSEN MAKES NO WARRANTY THAT: (i) THE SERVICE WILL MEET ANY OF YOUR REQUIREMENTS, (ii) THE SERVICE WILL BE TIMELY, SECURE, UNINTERRUPTED, OR FREE FROM ERROR OR OMISSION, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF ANY SERVICE IN OUR WEBSITE WILL BE USEFUL, ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES OFFERED IN OUR WEBSITE WILL MEET YOUR EXPECTATIONS, AND (V) ANY ERRORS IN THE OPERATION OF WEBSITE INCLUDING THE OPERATION OF ANY SOFTWARE WILL BE CORRECTED.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF ANY SERVICE IN OUR WEBSITE IS DONE AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM (OR ANY COMPONENT CONNECTED TO YOUR COMPUTER SYSTEM) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD (INTENTIONAL OR OTHERWISE) OF ANY SUCH MATERIAL.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS IN THIS SECTION MAY NOT APPLY TO YOU.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT JACOBSEN SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES, DIRECT, INDIRECT, INCIDENTAL, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL AND REPUTATION, OR OTHER INTANGIBLE LOSSES. THIS LIMITATION ON LIABILITY APPLIES EVEN IF JACOBSEN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Non assignable. You agree that your Jacobsen member account is non-transferable and any rights to your account or contents within your account terminate upon your death.
Jacobsen cares about the safety of children. Because the Service is not directed toward kids, children under 13 are not allowed to register with or use the Service. In the event that we discover we have collected personal information from a child under the age of 13 without parental consent, Jacobsen will delete that information as soon as possible.
User Provided Information. During the use of the Service, user information is collected to customize the user's experience. The current data fields collected are:
In addition, if you register with us to use parts of the Service that require registration, you generally provide a) email address and other registration information; (b) transaction-related information, such as when you make purchases, respond to any offers, or download or use applications from us; (c)information you provide us when you contact us for help; (d) credit card information for purchase and use of parts of the Service that require payment, and; (e) information you enter into our system when using the Service, such as contact information. We may also use the information you provided us to contact your from time to time to provide you with important information, required notices and offers that we believe you may be interested in. If you choose to correspond with us through email, we may retain the content of your email messages together with your email address and our responses.
In addition, the Services may collect certain information automatically, such as the unique device ID of a user's computer, mobile device or other internet-connected device , the IP address of your internet-connected device, your operating system, the type of Internet browsers you use, and information about the way you use the Service. In addition, tracking information is collected as you navigate through our website (the "Website") or use the Service, including, but not limited to geographic locations.
We use your general location information to serve relevant advertisements.
Our primary goal in collecting information is to provide you with an enhanced experience when using the Service . We use this information to closely monitor which features of the Service are used most and to determine which features we need to focus on improving, including usage patterns and geographic locations to determine where we should offer or focus services, features and/or resources.
Jacobsen uses your Internet Protocol (IP) address to help diagnose problems with our computer server, and to administer the Website. Your IP address is used to help identify you, and to gather broad demographic data. Your IP address contains no personal information about you.
Jacobsen may share aggregated information that includes non-identifying information and log data with third parties for industry analysis, demographic profiling and to deliver targeted advertising about other products and services.
We may employ third party companies and individuals to facilitate our Service, to provide the Service on our behalf, to perform Website-related services (e.g., without limitation, maintenance services, database management, web analytics and improvement of the Website's features) or to assist us in analyzing how our Website and Service are used. These third parties have access to your personal information only to perform these tasks on our behalf and are obligated not to disclose or use it for any other purpose. We may also provide personal information to our business partners or other trusted entities for the purpose of providing you with information on goods or services we believe will be of interest to you. You can, at any time, opt out of receiving such communications.
Jacobsen cooperates with government and law enforcement officials and private parties to enforce and comply with the law. We will disclose any information about you to government or law enforcement officials or private parties as we, in our sole discretion, believe necessary or appropriate to respond to claims and legal process (including but not limited to subpoenas), to protect the property and rights of Jacobsen or a third party, to protect the safety of the public or any person, or to prevent or stop activity we may consider to be, or to pose a risk of being, an illegal, unethical or legally actionable activity. Jacobsen may sell, transfer or otherwise share some or all of its assets, including your personal information, in connection with a merger, acquisition, reorganization or sale of assets or in the event of bankruptcy.
The personally identifiable information we collect is securely stored within our database, and we use standard, industry-wide, commercially reasonable security practices such as encryption, firewalls and SSL (Secure Socket Layers)(pages using this technology will have URLs that start with HTTPS instead of HTTP) for protecting your information. However, as effective as encryption technology is, no security system is impenetrable. We cannot guarantee the security of our database, nor can we guarantee that information you supply won't be intercepted while being transmitted to us over the Internet, and any information you transmit to Jacobsen you do at your own risk. We recommend that you not disclose your password, when one is obtained from the Service, to anyone.
We may work with analytics companies to help us understand how the Service is being used, such as the frequency and duration of usage. To protect the anonymity of this information, we do not share information that will enable these third parties to identify you personally.
There are multiple opt-out options for users of this Application:
We will retain User Provided Information for as long as you use the Service and for a reasonable time thereafter. If you'd like us to delete User Provided Information that you have provided via the Service, please contact us at firstname.lastname@example.org. and we will respond in a reasonable time. Please note that some or all of the User Provided Information may be required in order for the Service to function properly, and we may be required to retain certain information by law.
Occasionally, we may also use the information we collect to notify you about important changes to this website, new services, and special offers we think you will find valuable. As our customer, you will be given the opportunity to notify us of your desire not to receive these offers by clicking the unsubscribe link contained in each such email.
If you have any questions regarding privacy while using the Service,or have questions about our practices, please contact us via email at email@example.com.
THIS AGREEMENT GOVERNS YOUR USE OF THE By-Products Interactive, Inc. DBA The Jacobsen Publishing Co. (JACOBSEN) WWW.THEJACOBSEN.COM WEBSITE, MOBILE AND OTHER ONLINE SERVICES AND THE CONTENT/SERVICES AVAILABLE ON THEM. THE TERMS OUR AND WE REFER TO JACOBSEN,IF YOU REGISTER FOR A FREE TRIAL FOR OUR SERVICES, THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL. BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. THESE TERMS APPLLY TO YOUR USE OF THE CONTENT AND SERVICES REGARDLESS OF THE DELIVERY PLATFORM OR DEVICE USED BY YOU TO ACCESS IT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS YOU OR YOUR SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on 8 August, 2013. It is effective between You and Us as of the date of You accepting this Agreement.
Affiliate means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. Control, for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
Agreement means this Master Subscription Agreement.
Content means the text, data, reports, opinions, images, photos, graphics, graphs, charts, animations and video displayed on the Web Site, TheJacobsen.com (Website) and provided to You pursuant to an Order Form, as more fully described below.Documentation means Our online user guides, documentation, and help and training materials, as updated from time to time, accessible viaJacobsen.com or login to the applicable Service.
Malicious Code means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
Order Form means an ordering document specifying the Services to be provided hereunder that is entered into between You and Us, including any addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
Purchased Services means Services that You or Your Affiliate purchase under an Order Form, as distinguished from those provided pursuant to a free trial.
Services means the products and services that are ordered by You under a free trial or an Order Form and made available online by Us Technology and Content. Services exclude Non-Jacobsen.com Applications.
Technology means all of Jacobsen's proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to you by Jacobsen in providing the Service User means an individual who is authorized by You to use a Service, for whom You have ordered the Service, and to whom You (or We at Your request) have supplied a user identification and password. Users may include Your employees.
We, Us or Our means the By-Products Interactive, Inc. DBA The Jacobsen Publishing Co. (Jacobsen).
You or Your means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.
Your Data means electronic data and information, including but not limited to contact information, credit card information and name of contact person, submitted by or for You to the Purchased Services or collected and processed by or for You using the Purchased Services, excluding Content and Non-TheJacobsen.com Applications.
2.1. Provision of Purchased Services. We will (a) make the Services and Content available to You pursuant to this Agreement and the applicable Order Forms, (b) provide Our standard support for the Purchased Services to You at no additional charge, and/or upgraded support if purchased, and (c) use commercially reasonable efforts to make the online Purchased Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which We shall give at least 8 hours electronic notice and which We shall schedule to the extent practicable during the weekend hours between 6:00 p.m. Friday and 3:00 a.m. Monday Pacific time), and (ii) any unavailability caused by circumstances beyond Our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Our employees), Internet service provider failure or delay, Non-TheJacobsen.com Application, or denial of service attack.
3.2. Protection of Your Data. We will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Your Data by Our personnel except (a) to provide the Purchased Services and prevent or address service or technical problems, (b) as compelled by law in accordance with 7.3 (Compelled Disclosure) below, or (c) as You expressly permit in writing.
3.1 Subscriptions. Unless otherwise provided in the applicable Order Form, Services and Content are purchased as subscriptions.
3.2 Usage Limits. Services and Content are subject to usage limits, including, for example, the quantities specified in Order Forms. Unless otherwise specified, (a) a quantity in an Order Form refers to Users, and the Service or Content may not be accessed by more than that number of Users, (b) a User's password may not be shared with any other individual, and (c) a User identification may be reassigned to a new individual replacing one who no longer requires ongoing use of the Service or Content. If, notwithstanding Our notification and efforts, You are unable or unwilling to abide by a contractual usage limit, You will execute an Order Form for additional quantities of the applicable Services or Content promptly upon Our request, and/or pay any invoice for excess usage in accordance with Section 5.2 (Invoicing and Payment).
3.3 Your Responsibilities. You will (a) be responsible for Users' compliance with this Agreement, (b) be responsible for the accuracy, quality and legality of Your Data and the means by which You acquired Your Data, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content, and notify Us promptly of any such unauthorized access or use, (d) use Services and Content only in accordance with the Documentation and applicable laws and government regulations, and (e) comply with terms of service of TheJacobsen.com
3.4 Usage Restrictions. You will not (a) make any Service or Content available to, or use any Service or Content for the benefit of, anyone other than You or Users, (b) sell, resell, license, sublicense, distribute, rent or lease any Service or Content, or include any Service or Content in a service bureau or outsourcing offering, (c) use a Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use a Service to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorized access to any Service or Content or its related systems or networks, (g) permit direct or indirect access to or use of any Service or Content in a way that circumvents a contractual usage limit, (h) copy a Service or any part, feature, function or user interface thereof, (i) copy Content except as permitted herein or in an Order Form or the Documentation, (j) frame or mirror any part of any Service or Content, other than framing on Your own intranets or otherwise for Your own internal business purposes or as permitted in the Documentation, or (k) access any Service or Content in order to build a competitive product or service, or (l) reverse engineer any Service, decompile or otherwise attempt to decipher any code in connection with the Service or any other aspect of TheJacobsen.com website and/or technology.. If your subscription permits, you may be allowed to use TheJacobsen.com Content for pricing contracts, benchmarks, financial derivatives and presentations. Under no circumstances, will you be permitted to resell TheJacobsen.com Content to third parties.
3.5. Removal of Content. If We are required by a licensor to remove Content, or receive information that Content provided to You may violate applicable law or third-party rights, We may so notify You and in such event You will promptly remove such Content from Your systems. If You do not take required action in accordance with the above, We may disable the applicable Content and/or Service until the potential violation is resolved.
4.1. Fees. You will pay all fees specified in Order Forms. Except as otherwise specified herein or in an Order Form, (i) fees are based on Services and Content purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term.
4.2. Invoicing and Payment. You will provide Us with valid and updated credit card information. If You provide credit card information to Us, You authorize Us to charge such credit card for all Purchased Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in Section 11.2 (Term of Purchased Subscriptions). Such charges shall be made in advance, either annually or monthly. Payment is due at time your credit charge is charged. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.
4.3. Overdue Charges. If any invoiced amount is not received by Us by the due date, then without limiting Our rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) We may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 5.2 (Invoicing and Payment).
4.4. Suspension of Service and Acceleration. If you are a monthly subscriber, your services will be suspended if payment is not received on the due date. If you are an annual subscriber, your services will be suspended if payment is not received within 60 days from the due date of your invoice. We may charge you a fee to restart your services at our option. We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our services to You until such amounts are paid in full.
4.5. Payment Disputes. We will not exercise Our rights under Section 5.3 or 5.4 above if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
4.6. Taxes. Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, Taxes). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this Section 5.6, We will invoice You and You will pay that amount unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against Us based on Our income, property and employees.
5.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, the Services and Content, (including, but not limited to, any images, photographs, animations, video, audio, music, text, content, computer code or applets incorporated into the Service), any accompanying printed materials, and any copies of the Service are owned by Jacobsen. No rights are granted to You hereunder other than as expressly set forth herein.
5.2. License by Us to Use Content. We grant to You a non-exclusive, limited-term, non-transferable, revocable license, under Our applicable intellectual property rights and licenses, to use Content acquired by You pursuant to Order Forms, subject to those Order Forms, this Agreement and the Documentation.
5.3. License by You to Use Feedback. You grant to Us and Our Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction or other feedback provided by You or Users relating to the operation of the Services.
6.1. Definition of Confidential Information. Confidential Information means all information disclosed by a party (Disclosing Party) to the other party (Receiving Party), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information includes Your Data; Our Confidential Information includes the Services and Content; and Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (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.
6.2. Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates' employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party's prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate's, legal counsel's or accountant's compliance with this Section 7.2.
6.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party's Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
7.1. Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
7.2. Disclaimers. YOU HEREBY ACKNOWLEDGE AND AGREE THAT THE SERVICES AND CONTENT PROVIDIED BY JACOBSEN ARE PROVIDED AS IS, WITHOUT ANY WARRANTIES. JACOBSEN MAKES NO GUARANTEES OR WARRANTIES AS TO THE ACCURACY, COMPLETENESS, TIMELINESS OR CURRENTNESS OF OR RESULTS TO BE OBTAINED FROM ACCESSING AND USING THEJACOBSEN.COM WEBSITE, THEJACOBSEN.COM CONTENT NOR ANY OTHER MATERIAL THAT CAN BE ACCESSED DIRECTLY OR INDIRECTLY THROUGH THEJACOBSEN.COM WEBSITE. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CONTENT AND BETA SERVICES ARE PROVIDED AS IS, EXCLUSIVE OF ANY WARRANTY WHATSOEVER. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
8.1. Indemnification by Us. We will defend You against any claim, demand, suit or proceeding made or brought against You by a third party alleging that the use of a Purchased Service in accordance with this Agreement infringes or misappropriates such third party's intellectual property rights (a Claim Against You), and will indemnify You from any damages, attorney fees and costs finally awarded against You as a result of, or for amounts paid by You under a court-approved settlement of, a Claim Against You, provided You (a) promptly give Us written notice of the Claim Against You, (b) give Us sole control of the defense and settlement of the Claim Against You (except that We may not settle any Claim Against You unless it unconditionally releases You of all liability), and (c) give Us all reasonable assistance, at Our expense. If We receive information about an infringement or misappropriation claim related to a Service, We may in Our discretion and at no cost to You (i) modify the Service so that it no longer infringes or misappropriates, (ii) obtain a license for Your continued use of that Service in accordance with this Agreement, or (iii) terminate Your subscriptions for that Service upon 30 days' written notice and refund You any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply to the extent a Claim Against You arises from Content, a Non-Jacobsen.com Application or Your breach of this Agreement.
8.2. Indemnification by You. You will defend Us against any claim, demand, suit or proceeding made or brought against Us by a third party alleging that Your Data, or Your use of any Service or Content in breach of this Agreement, infringes or misappropriates such third party's intellectual property rights or violates applicable law (a Claim Against Us), and will indemnify Us from any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a court-approved settlement of, a Claim Against Us, provided We (a) promptly give You written notice of the Claim Against Us, (b) give You sole control of the defense and settlement of the Claim Against Us (except that You may not settle any Claim Against Us unless it unconditionally releases Us of all liability), and (c) give You all reasonable assistance, at Your expense.
8.3. Exclusive Remedy. This Section 9 states the indemnifying party's sole liability to, and the indemnified party's exclusive remedy against, the other party for any type of claim described in this Section 9.
9.1 Limitation of Liability. NEITHER PARTY'S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT WILL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT CUSTOMER'S PAYMENT OBLIGATIONS UNDER SECTION 5 (FEES AND PAYMENT FOR PURCHASED SERVICES).
9.2. Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
10.1 Term of Agreement. This Agreement commences on the date You first accept it and continues until all subscriptions hereunder have expired or have been terminated.
10.2. Term of Purchased Subscriptions. The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 10 days for monthly subscriptions or 30 days (for annual subscriptions) before the end of the relevant subscription term. The per-unit pricing during any automatic renewal term will be the same as that during the immediately prior term unless We have given You written notice of a pricing increase at least 60 days before the end of that prior term, in which case the pricing increase will be effective upon renewal and thereafter.
10.3. Termination. We may terminate your access to Jacobsen for any reason or no reason in the sole and absolute discretion of Us (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
10.4. Refund or Payment upon Termination. If this Agreement is terminated by You in accordance with Section 11.3 (Termination), We will refund You any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by Us in accordance with Section 11.3, You will pay any unpaid fees covering the remainder of the term of all Order Forms. In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination.
10.5. Portability and Deletion of Your Data. Upon request by You made within 30 days after the effective date of termination or expiration of this Agreement, We will make the Your Data available to You for export or download as provided in the Documentation. After that 30-day period, We will have no obligation to maintain or provide Your Data, and will thereafter delete or destroy all copies of Your Data in Our systems or otherwise in Our possession or control as provided in the Documentation, unless legally prohibited.
10.6. Surviving Provisions. Sections 5 (Fees and Payment for Purchased Services), 6 (Proprietary Rights and Licenses), 7 (Confidentiality), 8.2 (Disclaimers), 9 (Mutual Indemnification), 10 (Limitation of Liability), 11.4 (Refund or Payment upon Termination), 11.5 (Portability and Deletion of Your Data), 12 (Notices, Governing Law, General Provisions) will survive any termination or expiration of this Agreement.
11.1. Notice. Any notice under this Agreement will be in writing and delivered by personal delivery, overnight courier, confirmed facsimile, confirmed e-mail, or certified or registered mail, return receipt requested, and will be deemed given upon personal delivery, 1 day after deposit with an overnight courier, 5 days after deposit in the mail, or upon confirmation of receipt of facsimile or email. Notices will be sent to a party at its address set forth above or such other address as that party may specify in writing pursuant to this Section 12.1.
11.2 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado without reference to its conflict or choice of law rules or principles. Customer hereby submits to the non-exclusive jurisdiction of the courts of the State of Colorado for any legal action arising out of this Agreement or the performance of the obligations hereunder or thereunder.
11.3 Remedies; Dispute Resolution. Except as otherwise expressly provided in this Agreement, the parties' rights and remedies under this Agreement are cumulative. Each party acknowledges and agrees that any actual or threatened breach of Section 7 will constitute immediate, irreparable harm to the non-breaching party for which monetary damages would be an inadequate remedy, that injunctive relief is an appropriate remedy for such breach, and that if granted, the breaching party agrees to waive any bond that would otherwise be required.
The parties agree to the following dispute resolution procedure: a) Mediation. If any dispute related to this Agreement cannot be resolved by negotiation, the parties agree, upon any party giving written notice, the parties will submit the Dispute to non-binding mediation in Boulder, CO by a mediator mutually selected by the parties. If the parties are unable to agree upon a mediator, the American Arbitration Association shall appoint the mediator. In any event, the mediation shall take place within 30 days of the date that a party gives the other party written notice of its desire to mediate the dispute. The cost of the mediation shall be borne equally by all parties. (b) Arbitration. If the dispute is not resolved by mediation pursuant to Section 18.6(a) above, it shall be resolved by arbitration in Boulder, Colorado in accordance with the Commercial Arbitration Rules of and by the American Arbitration Association, and judgment upon the award rendered by the arbitrators may be entered in any Court having jurisdiction thereof. The decision of the arbitrators shall be final and conclusive.
11.4 Entire Agreement; Waiver. This Agreement sets forth the entire understanding and agreement of the parties, and supersedes any and all oral or written agreements or understandings between the parties, as to the subject matter of the Agreement. This Agreement may be changed only by a writing signed by both parties. In the event of a conflict between this Agreement and the Terms of Service contained on Jacobsen's web site, this Agreement shall control. This Agreement sets forth the general terms and conditions applicable to all services provided by Jacobsen to Customer and no terms or conditions proposed by either party, including any purchase order submitted by Customer, shall be binding on the other party unless accepted in writing by both parties, and each party hereby objects to and rejects all terms and conditions not so accepted. To the extent of any conflict between the provisions of this Agreement and the provisions of any purchase order, the provisions of this Agreement shall govern.
11.5 Assignment. Neither party may assign or transfer, by operation of law or otherwise, this Agreement or any of its rights under this Agreement to any third party without the other party's prior written consent; except that either party may assign this Agreement by operation of law or otherwise to any successor to its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Any attempted assignment or transfer in violation of the foregoing will be null and void. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns, and shall not confer any rights or remedies upon any person or entity not a party hereto.