UNFLAKABLE TERMS OF SERVICE
Last Updated: April 9, 2022
IMPORTANT NOTICE: THESE TERMS OF SERVICE CONTAIN A BINDING ARBITRATION PROVISION AND WAIVER OF JURY TRIALS AND CLASS ACTIONS GOVERNING DISPUTES ARISING FROM USE OF THE UNFLAKABLE SERVICES. IT AFFECTS YOUR LEGAL RIGHTS AS DETAILED IN THE MANDATORY ARBITRATION AND WAIVER OF CLASS ACTION SECTION BELOW. PLEASE READ CAREFULLY.
These Unflakable Terms of Service (“Terms”) govern access to and use of the Services offered by Developer Innovations, LLC d/b/a Unflakable (“Unflakable,” “we” or “us”) by any individual or entity creating an account for the Services (“Customer”). Customers may be referred to in these Terms as “you” and “your” as applicable.
In the event of a conflict, an exhibit, attachment, Order Form, or addendum prevails over these Terms.
We may revise these Terms or any additional terms and conditions that are relevant to the Services from time to time. We will post the revised terms on our website with a “last updated” date. IF YOU CONTINUE TO USE THE SERVICES AFTER THE REVISIONS TAKE EFFECT, YOU AGREE TO BE BOUND BY THE REVISED TERMS. You agree that we shall not be liable to you or to any third party for any modification of the Terms.
- “Affiliate” means any entity that Controls, is Controlled by, or is under common Control with a party, where “Control” means ownership of more than 50% of the voting interests of the subject entity.
- “Authorized User” means Customer’s employees, contractors, agents, and other persons that Customer authorizes to use the Services on its behalf and/or access Customer Data within the Services.
- “Customer Data” means all information that are (i) collected through Customer’s use of the Service and/or (ii) provided by Customer or its Affiliates or either of their Authorized Users.
- “Services” means Unflakable’s services, including its test reliability software as a service platform, and any further details thereof as set forth in an Order Form.
- “Subscription” means the access to the Services acquired by Customer upon account creation.
- “Subscription Term” means the term identified when Customer orders the Services, including any renewal term, during which Customer and its Authorized Users are permitted to use the Services.
1. General; License to Service.
1.1. You must be, and represent that you are, at least 18 years of age and competent to agree to this Agreement, including on behalf of your entity and Authorized Users.
1.2. Subject to the terms of this Agreement, Unflakable grants you a limited, revocable, non-exclusive, non-transferrable right to use the Services during the Subscription Term.
1.3. You agree to, and represent that you will, implement and use the Services only for your own internal, legitimate business purposes and in compliance with applicable law.
1.4. Unflakable may decide in its sole discretion to prohibit you from accessing or using the Services. If Unflakable has previously prohibited you from accessing or using the Services you may not do so.
2. Customer Responsibilities and Restrictions.
2.1. Misuse of the Services. You will not (or cause or permit any person or third party to):
- reverse assemble, reverse engineer, decompile or otherwise attempt to derive source code or any component thereof or of any intellectual property (including but not limited to copyrights, trade secrets, trademarks and patent rights) relating to the Services and/or any software underlying the Services, unless explicitly released under a separate license or otherwise permitted by us;
- probe, test, circumvent, disable, or otherwise interfere with features related to security or authentication measures without Unflakable’s express written consent, including under a vulnerability disclosure policy;
- use any robot, spider, search or retrieval application, or any other manual or automatic device or process to retrieve, index, data-mine, or in any way reproduce or circumvent the navigational structure or presentation thereof (e.g., “scraping”);
- modify or prepare derivative works of data, content, or any other materials on the Services that you did not place on the Services;
- assign, copy, reproduce, modify, sell, lease, pledge, transfer, sublicense, market, commercially exploit, or otherwise dispose of in any way, on temporary or permanent basis any component of the Services other than as expressly provided in this Agreement;
- use the Services in any manner that infringes the intellectual property or other rights of Unflakable or any other individual or entity;
- attempt to disrupt or overwhelm our infrastructure by intentionally imposing unreasonable requests or burdens on our resources (e.g., using “bots” or other automated systems to send requests to our servers at a rate beyond what could be sent by a human user during the same period of time);
- interfere with or disrupt the access of any user, host or network, including, without limitation, by sending a virus, overloading, flooding, spamming, mail-bombing the Services, or other activity that interferes with or creates an undue burden on the Services;
- use the Services to conduct any unlawful or fraudulent activities, send unsolicited communications or spam, publish or link to malicious content designed to disrupt another individual’s browser or computer; or
- use the Services in any way not specifically permitted under this Agreement.
2.2. Equipment. You are responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Service, including, without limitation, modems, hardware, servers, software, operating systems, networking, web services and the like (collectively, “Equipment”). You are also responsible for maintaining the security of the Equipment.
2.3. Responsibility for Authorized Users. You are responsible for the activities of all Authorized Users who access or use the Services through your account, and you agree to ensure that any such Authorized User will comply with the terms of this Agreement and any Unflakable policies. A breach of the terms of this Agreement by an Authorized User shall be considered a breach by Customer. Unflakable assumes no responsibility or liability for violations by Authorized Users. If You become aware of any violation of this Agreement in connection with use of the Services by any person, please contact Unflakable at email@example.com. Unflakable may investigate and take any (or no) action that it believes is appropriate for violation of this Agreement, including, but not limited to terminating access by Authorized Users.
2.4. Access to Service; Unauthorized Account Use. Customer is responsible for maintaining the security of and access to its Subscription passwords and files and is responsible for all uses of its Subscription or Equipment with or without its knowledge or consent. Customer will not disclose passwords, certificates, authorizations, or other access controls (“Access Controls”) to anyone other than Authorized Users and Customer will use reasonable efforts to prevent unauthorized access to such Access Controls. Customer will promptly notify Unflakable of any actual or suspected unauthorized use of the Service of which it becomes aware. Unflakable will not be liable for any unauthorized access to, use of, or alteration, corruption, deletion, or loss of any Customer Data in connection with any Authorized User’s or third party’s use of Access Controls. Customer understands and agrees that Unflakable may require Customer to provide information that may be used to confirm its identity and help ensure the security of its Subscription. Unflakable will not be liable for any loss, damages, liability, expenses, or attorneys’ fees that Customer may incur as a result of unauthorized use of its Subscription, regardless of whether Customer has or has not advised Unflakable of such unauthorized use. Customer will be liable for losses, damages, liability, expenses, and attorneys’ fees incurred by Unflakable or a third party due to someone else using Customer’s Subscription. In the event that Customer loses its Access Controls or otherwise requests information about its Subscription, Unflakable reserves the right to request from you verification we deem necessary before restoring access to or providing such information in our sole discretion.
3. Data. You shall be responsible for Customer Data that you provide or use in the Services, and Customer is solely responsible for determining the suitability of the Services for your business and complying with any regulations, laws, or conventions applicable to the Customer Data. Under no circumstances will Unflakable be liable in any way for any data, including Customer Data, viewed in or submitted to Services, including, but not limited to, any errors or omissions in any such data, or any loss or damage of any kind incurred as a result of the use of, access to, or denial of access to any data. You acknowledge that although Unflakable takes commercially reasonable measures and industry-standard security methods to protect the data it collects, no method of electronic communication or security can be guaranteed.
4.1. Unflakable shall retain and own all right, title and interest and all intellectual property rights (including but not limited to copyrights, trade secrets, trademarks, and patent rights) in and to the Services, and any software underlying the Services and any related modification, derivation, improvement, or development thereof, and all copies thereof. Nothing in this Agreement shall be interpreted to provide Customer with any rights in the foregoing, except the limited right to use the Services subject to the terms of this Agreement.
4.2. Customer shall retain all right, title and interest and all intellectual property rights in and to Customer Data. Unflakable and its third-party service providers may use, host, store, backup, transmit, display and analyze Customer Data to (a) provide the Service under this Agreement and (b) to generate aggregate or de-identified data that cannot identify any individuals (“Aggregate/De-Identified Data”). Unflakable may use Aggregate/De-identified Data during or after the term of this Agreement for any purposes in its sole discretion. Customer is not responsible for Unflakable’s use of Aggregate Data. Further, Unflakable may disclose that Customer is one of its customers by placing Customer’s name and logo on its website and marketing materials; in each case, in compliance with all trademark usage guidelines provided by Customer to Unflakable in writing from time to time.
4.3. Feedback. If you submit any feedback to Unflakable regarding the Services, Unflakable may use such feedback during or after the term for any purpose without any compensation or obligation to you provided such use does not violate Section 7 (Confidentiality).
5. Fees, Payment, Taxes.
5.1. You agree that we may charge your credit card or other payment mechanism selected by you and approved by us for all amounts due and owing for your Subscription, including taxes and service fees, set up fees, subscription fees, or any other fee or charge associated with your Subscription in the amount and on the frequency set forth in an Order Form, (“Fees”), including for any renewals except to the extent you have cancelled your Subscription in accordance with this Section 6. Fees are exclusive of all taxes other than taxes on Unflakable’s net income, and Customer shall pay (and Unflakable shall have no liability for), any taxes, tariffs, duties and other charges or assessments imposed or levied by any government or governmental agency in connection with this Agreement, including, without limitation, any federal, provincial, state and local sales, use, goods and services, value-added, withholding, and personal property taxes on any payments due in connection with the Service provided hereunder.
Unflakable may change prices at any time, including changing from a free service to a paid service and charging for Services that were previously offered free of charge; provided, however, that Unflakable will provide you with prior notice and an opportunity to terminate your Subscription if Unflakable changes the price of a Service to which you are subscribed and will not charge you for a previously free Service unless you have been notified of the applicable fees and agreed to pay such fees. In the event that a payment by Customer is not received within five (5) business days of its due date, Unflakable shall be entitled to interest on the amount owing at a rate of 1.5% per month, or the highest rate allowed by applicable law, whichever is less, from the due date of payment until the date of actual receipt by Unflakable and, if necessary, Customer shall bear all reasonable attorneys’ fees actually incurred by Unflakable in collecting any such overdue amounts. The Customer shall not be entitled to any refunds of any Fees under any circumstances.
Customer agrees that its Subscription will automatically renew at the frequency set forth on the Order Form (e.g., monthly or annually) depending on Customer’s Subscription Term (each renewal, the “Renewal Date”). Customer authorizes Unflakable to automatically charge Customer for the applicable Fees on or after the Renewal Date unless the Subscription has been terminated or cancelled in accordance with this Agreement.
6. Termination or Cancellation of Subscription.
6.1. Customer’s Subscription will continue until the last day of the Subscription Term; provided that, if your Order Form has an automatic renewal term, you can terminate your Subscription or change your Subscription tier in the account settings at any time prior to the commencement of the next renewal term. If you fail to comply with any provision of this Agreement, Unflakable may terminate this Agreement immediately and retain any fees previously paid by you or, at Unflakable’s option, downgrade your Subscription to a free tier if you had been using a paid service. If Unflakable fully terminates your Subscription, you must cease any further use of the Services. If at any time you are not happy with the Services, your sole remedy is to cease using the Services and follow this termination process. Unflakable may delete an account and Customer Data, upon the expiration of the Subscription Term or termination as described in these Terms.
7.1. Definition. During the course of performance under this Agreement, each party may make available to the other party information that is identified as, or should reasonably be understood by the receiving party to be, proprietary or confidential (the “Confidential Information”). Confidential Information specifically includes, without limitation, this Agreement, the Service, Order Form(s), Customer Data, business plans, product plans and roadmaps, financial data, pricing information, marketing and personal information, technology (including without limitation, source code, algorithms, processes, technical data and documentation, product plans, research, software, and other confidential intellectual property), trade secrets, and know-how. Confidential Information will not include any information that: (a) is or becomes generally known to the public without violation of this Agreement by either party; (b) is obtained by the receiving party from a source other than the disclosing party without obligation of confidentiality, including to either party; (c) is independently developed by the receiving party; or (d) is Aggregate Data.
7.2. Obligations. During and after the Subscription Term, the party receiving Confidential Information will use the Confidential Information of the disclosing party solely for the purpose for which it is provided. Each party will treat the other party’s Confidential Information with at least the same degree of protection as it would treat its own Confidential Information of a similar nature, but in no event less than a reasonable degree of care. The receiving party may disclose Confidential Information to the extent required by law or court order. However, subject to applicable law, the receiving party will give the disclosing party prompt notice to allow the disclosing party a reasonable opportunity to obtain a protective order.
7.3. Confidentiality Period; Remedies. The confidentiality obligations will survive the termination of this Agreement. In the event of a breach of this Section 7 (Confidentiality) the disclosing party will be entitled to seek equitable relief in addition to whatever remedies it might have at law.
9. Representations and Warranties; Disclaimers; Limitation of Liability.
9.1. Customer represents and warrants that (a) it is not named on any U.S. or other list of persons or entities prohibited from receiving U.S. exports, or transacting with any U.S entity, (b) it is not a national of, or a company registered in, any jurisdiction in which the provision of the other party’s goods or services is prohibited under U.S. or other applicable laws or regulations.
9.2. YOU ACKNOWLEDGE THAT THE SERVICES ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNFLAKABLE DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, TERMS AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, REGARDING THE SERVICES, RELATED DOCUMENTATION OR INFORMATION, AND OTHER MATERIALS AND SERVICES, AND SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, MERCHANTABLE QUALITY, NON-INFRINGEMENT AND THOSE ARISING FROM COURSE OF PERFORMANCE, DEALING, USAGE OR TRADE. SPECIFICALLY, BUT WITHOUT LIMITATION, UNFLAKABLE DOES NOT WARRANT THAT: (i) THE SERVICES ARE FREE OF ERRORS; (ii) THE FUNCTIONS OR FEATURES WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS; (iii) DEFECTS WILL BE CORRECTED; OR (iv) THE SERVICES OR THE SERVER(S) THAT MAKE THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. UNFLAKABLE PROVIDES NO WARRANTY REGARDING ANY USE OF THE SERVICES NOT IN ACCORDANCE WITH THIS AGREEMENT OR FOR PURPOSES NOT INTENDED BY UNFLAKABLE OR NOT SPECIFICALLY PERMITTED BY THIS AGREEMENT.
IN NO EVENT SHALL UNFLAKABLE OR ITS AFFILIATES OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR ANY PENALTIES, CLAIMS FOR LOST DATA, REVENUE, PROFITS, COSTS OF PROCUREMENT OR SUBSTITUTE GOODS OR SERVICE OR BUSINESS OPPORTUNITIES, ARISING OUT OF THIS AGREEMENT OR ANY ADDENDUM THERETO, UNDER ANY CAUSE OF ACTION OR THEORY OF LIABILITY, WHETHER IN CONTRACT OR IN TORT INCLUDING NEGLIGENCE, EVEN IF UNFLAKABLE HAD BEEN ADVISED OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL UNFLAKABLE’S MAXIMUM AND AGGREGATE LIABILITY HEREUNDER FOR ANY CAUSE OF ACTION OR THEORY OF LIABILITY EXCEED THE AMOUNTS PAID BY CUSTOMER TO UNFLAKABLE HEREUNDER DURING THE 6 MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE.
UNFLAKABLE DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE OR ANY WEBSITE FEATURED OR LINKED TO THROUGH THE SERVICE, AND UNFLAKABLE WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES AND WEBSITES. UNFLAKABLE WILL NOT BE LIABLE FOR THE OFFENSIVE OR ILLEGAL CONDUCT OF ANY THIRD PARTY. YOU VOLUNTARILY ASSUME THE RISK OF HARM OR DAMAGE FROM THE FOREGOING. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE AND TO THE FULLEST EXTENT PERMITTED BY LAW.
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 may not apply to you. If you are a New Jersey resident, or a resident of another state that permits the exclusion of these warranties and liabilities, then the limitations in this Section 10 specifically do apply to you.
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of the Services, or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred. This shall not apply to consumers who are residents of New Jersey.
If you are a California resident, you hereby waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.” This release includes the criminal acts of others.
11. MANDATORY ARBITRATION AND CLASS ACTION WAIVER.
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
11.1. Application. You and Unflakable agree that these Terms affect interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions. This Section 11 is intended to be interpreted broadly and governs any and all disputes between us except as explicitly set forth herein, including but not limited to claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; claims that arose before these Terms or any prior agreement (including, but not limited to, claims related to advertising); and claims that may arise after the termination of these Terms. The only disputes excluded from this broad prohibition are the litigation of certain intellectual property and small court claims, as provided below.
11.2. Initial Dispute Resolution. Most disputes can be resolved without resort to arbitration. If you have any dispute with us, you agree that before taking any formal action, you will contact us at firstname.lastname@example.org and provide a brief, written description of the dispute and your contact information (including your username, if your dispute relates to an account). Except for intellectual property and small claims court claims, the parties agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with Unflakable, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration.
11.3. Binding Arbitration. If the parties do not reach an agreed-upon solution within a period of thirty (30) days from the time informal dispute resolution is initiated under the Initial Dispute Resolution provision above, then either party may initiate binding arbitration as the sole means to resolve claims, (except as provided in section 11.8 below) subject to the terms set forth below. Specifically, all claims arising out of or relating to these Terms (including the Terms’ formation, performance, and breach), the parties’ relationship with each other, and/or your use of Unflakable shall be finally settled by binding arbitration administered by the JAMS Comprehensive Arbitration Rules & Procedures (“JAMS”). The JAMS rules will govern payment of all arbitration fees. Unflakable will pay all arbitration fees for claims less than $75,000. If you receive an arbitration award that is more favorable than any offer, we make to resolve the claim, we will pay you $1,000 in addition to the award. Unflakable will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.
11.4. Arbitrator’s Powers. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of these Terms including but not limited to any claim that all or any part of these Terms is void or voidable, whether a claim is subject to arbitration, or the question of waiver by litigation conduct. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written and shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction.
11.5. Filing a Demand. To start an arbitration, you must do the following: (a) write a demand for arbitration (“Demand”) that (i) briefly explains the dispute, (ii) lists your and Unflakable’s names and addresses, (iii) specify the amount of money in dispute, if applicable, (iv) identify the requested location for a hearing if an in-person hearing is requested, and (v) state what you want in the dispute; (b) send one copy of the Demand to JAMS, along with a copy of these Terms and the filing fee required by JAMS; and (c) send one copy of the Demand for Arbitration to us at email@example.com.
11.6. The parties understand that, absent this mandatory arbitration provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court. If you are a resident of the United States, arbitration may take place in the county where you reside at the time of filing, unless you and we both agree to another location or telephonic arbitration. For individuals residing outside the United States, arbitration shall be initiated in San Francisco, State of California United States, and you and Unflakable agree to submit to the personal jurisdiction of any federal or state court in San Francisco, California, in order to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
11.7. Class Action Waiver. The parties further agree that the arbitration shall be conducted in the party’s respective individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND UNFLAKABLE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
11.8. Exception: Litigation of Intellectual Property and Small Claims Court Claims. Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring an action in state or federal court to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also seek relief in small claims court in San Francisco, California for disputes or claims within the scope of that court’s jurisdiction.
11.9. 30-Day Right to Opt Out. You have the right to opt out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of your decision to opt out to firstname.lastname@example.org with the subject line, “ARBITRATION AND CLASS ACTION WAIVER OPT-OUT.” The notice must be sent within the later of 30 days of your first use of the Services or within 30 days of changes to this section being announced on our website. Otherwise, you shall be bound to arbitrate disputes in accordance with the terms of these paragraphs. If you opt out of these arbitration provisions, Unflakable also will not be bound by them.
11.10. Changes to This Section. Unflakable will provide thirty (30) days’ notice of any changes to this section by posting on our website. Amendments will become effective thirty (30) days after they are posted on our website or sent to you by email. Changes to this section will otherwise apply prospectively only to claims arising after the thirtieth (30th) day. If a court or arbitrator decides that this subsection on “Changes to This Section” is not enforceable or valid, then this subsection shall be severed from the section entitled Mandatory Arbitration and Class Action Waiver, and the court or arbitrator shall apply the first Mandatory Arbitration and Class Action Waiver section in existence after you began using the Service.
11.11. Survival. This Mandatory Arbitration and Class Action Waiver section shall survive any termination of your use of the Services.
12.1. Relationship. This Agreement is not intended to create, nor should it be construed as creating, an agency, joint venture, partnership or similar relationship between the parties. Unflakable will act solely as an independent contractor of Customer and neither party shall have the right to act for or bind the other party in any way or to represent that the other party is in any way responsible for any acts or omissions of such party.
12.2. Publicity. You acknowledge that all of Unflakable’s trademarks, service marks or other designations (“Proprietary Marks”) constitute Unflakable’s exclusive property. You will not display, copy, or otherwise use such Proprietary Marks unless Unflakable has expressly consented to such use in writing.
12.3. Successors and Assigns. This Agreement shall bind and inure to the benefit of each party’s permitted successors and assigns. Customer may not assign any of its rights or obligations without Unflakable’s prior written consent, and any attempt to assign such rights or obligations without Unflakable’s written consent will be null and void. Unflakable may assign any of its rights or obligations under this agreement without limitation.
12.4. Law and Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the laws of the State of California, without regard to its conflict of laws principles. The parties hereby consent to the exclusive jurisdiction of, and venue in, any federal or state court of competent jurisdiction located in San Francisco for the purposes of adjudicating any matter arising from or in connection with this Agreement.
12.5. Force Majeure. Neither party shall be liable to the other party for any delay or failure in performance, to the extent such delay or failure is due to causes beyond its control.
12.6. Severability and Waiver. If any provision of this Agreement is found invalid or unenforceable, that provision will be enforced to the maximum extent permissible so as to effect the intent of the parties and the remainder of this Agreement will remain in full force and effect. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any prior or subsequent breach of this Agreement.
12.7. Construction; Language; Integration; and Modification; Counterparts. This Agreement will not be construed in favor of or against either party by reason of authorship. This Agreement is in the English language only, which language is controlling in all respects, and all versions hereof in any other language will not be binding on the parties hereto. All communications and notices to be made or given pursuant to this Agreement must be in the English language. This Agreement constitutes the entire agreement between the parties, and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter, including, without limitation, any non-disclosure and/or confidentiality agreements between the parties or their Affiliates, it being understood and agreed that any information previously disclosed under any such agreement or arrangement shall be deemed Confidential Information hereunder and covered by terms of this Agreement in replacement of any such non-disclosure or confidentiality agreements.
12.8. Notices. We may deliver notice to you by e-mail, posting a notice on our website or any other method we choose and such notice will be effective on dispatch. You agree that all communications we provide to you electronically satisfy any legal requirement that such communications be in writing or be delivered in a particular manner and you agree to keep your account contact information current. If you give notice to us, it will be effective when received and you must use the following physical or email address: email@example.com and Developer Innovations, LLC, 201 Spear Street Suite 1100, San Francisco, CA 94105.
12.9. Survival. Any provision of these Terms or the Agreement that by its nature is reasonably intended to survive beyond termination or expiration of these Terms or the Agreement shall survive.