Enthuse - Terms of Service

This End User License Agreement ("Agreement") is a legal agreement between you and Enthuse, Inc. ("Company," "we," or "us") for the Enthuse iOS app accompanying this Agreement ("Licensed Application"), its website at http://enthu.se ("Site"), and the associated services provided by Company. "Service" means the Licensed Application, the Site, and any other associated services provided by Company. You acknowledge that this Agreement is between only you and Company, and Apple, Inc. ("Apple") is not a party to this Agreement.

PLEASE READ THIS AGREEMENT CAREFULLY. BY INSTALLING OR USING THE LICENSED APPLICATION, USING THE SITE IN ANY WAY, INCLUDING USING, TRANSMITTING, DOWNLOADING, OR UPLOADING ANY OF THE FUNCTIONALITY OF THE SITE, OR USING ANY PORTION OF THE SERVICE, YOU REPRESENT AND WARRANT THAT YOU ARE AT LEAST 18 YEARS OF AGE AND YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT WISH TO BE BOUND BY THIS AGREEMENT OR YOU ARE UNDER 18 YEARS OF AGE, YOU MAY NOT INSTALL OR USE ANY PORTION OF THE SERVICE.

1. TERMS.

The Service may also be subject to other agreements, posted guidelines, rules or terms of service ("Additional Terms"). If there is any conflict between the Agreement and the Additional Terms, the Additional Terms take precedence in relation to the Service. This Agreement, and any applicable Additional Terms, are referred to herein as the "Terms." Company may change the Terms from time to time at its sole discretion, and if Company makes any substantial changes, we will notify you by sending an email to the last email address you provided to us, notifying you via the Licensed Application, and/or by posting notice of the change on the Site. Any material changes to these Terms will be effective upon the earlier of thirty (30) calendar days following our dispatch of an email notice to you or thirty (30) calendar days following our posting of notice of the changes on our Site. These changes will be effective immediately for new users of our Service. Company may require you to provide consent to the updated Terms in a specified manner before further use of the Service is permitted. Otherwise, your continued use of the Site or the Service constitutes your acceptance of the changes. Please regularly check the Site to view the then-current Terms.

2. USER ACCOUNT.

You must register for a user account ("Account") to access the Service. When you create an Account, you will be asked to select a unique username and create a password. We may require you to submit certain additional information to complete your registration. You represent and warrant that: (a) all registration information you submit is truthful and accurate, (b) you will maintain the accuracy of such information, and (c) your use of the Service does not violate any applicable law. Company reserves the right to require you to change or update your username and password at Company's sole discretion from time to time. You are responsible for maintaining the confidentiality of your username and password, and are solely responsible for all activities that occur under your username. You agree (i) not to allow any third party to use your Account, username or password at any time and (ii) to notify Company promptly of any actual or suspected unauthorized use of your Account, username or password, or any other breach or suspected breach of these Terms. Company reserves the right to terminate your username and password, if Company reasonably believes the Account may have been used by an unauthorized third party.

3. LICENSE GRANT AND RESTRICTIONS.

3.1 License Grant. The information, text, images, video, audio, or other materials available on the Licensed Application and on the Site ("Content") are protected by copyright laws throughout the world. Subject to the terms and conditions of these Terms, Company grants you a limited, non-exclusive, non-transferable, revocable license during the term of these Terms to: (a) install and execute one copy of the Licensed Application, in executable object code format only, solely (i) on your iOS device that you own or control ("iOS Device"), (ii) for your use of the Service for your personal, non-commercial purposes, and (iii) as permitted by the Usage Rules set forth in the then-current App Store Terms of Service between you and Apple; (b) access and use the Service solely for your personal, non-commercial purposes; and (c) view the Content for your personal, non-commercial use. Company reserves all rights not granted in these Terms

3.2 Limitations. You agree that you will not: (a) permit any other party to access and/or use the Service; (b) rent, lease, loan, or sell access to the Service to any third party; (c) interfere with, disrupt, alter, translate, or modify the Service or any part thereof, or create an undue burden on the Service or the networks or services connected to the Service; (d) reverse engineer or access the Service in order to (i) build a competitive product or service, (ii) build a product using similar ideas, features, functions or graphics of the Service, or (iii) copy any ideas, features, functions or graphics of the Service; (e) without Company's express written permission, introduce software or automated agents or scripts to the Service so as to produce multiple accounts, generate automated searches, requests and queries, or to strip or mine data from the Service; (f) perform or publish any performance or benchmark tests or analyses relating to the Service or the use thereof; (g) cover or obscure any page or part of the Service via HTML/CSS, scripting, or any other means, if any, (h) reproduce, publicly display, publicly perform, distribute, transfer, or otherwise use the Licensed Application, except as expressly permitted in Section 3.1; (i) use, or encourage or permit others to use, the Licensed Application or Service to: stalk or harass others, harm minors in any way, impersonate any person or entity, or mislead a third party into believing that he or she is interacting directly with Company or the Service; (j) deliver any unsolicited advertisement, promotional materials, junk email, bulk email, chain letters, surveys or contests using the Service; or (k) permit any third party to take any action prohibited in (a) through (j). Except as expressly set forth herein, no express or implied license or right of any kind is granted to you regarding the Service or any part thereof.

3.3 Ownership. Company and its licensors own the Service, the Licensed Application, the Site, and all Content contained in the foregoing, and all intellectual property rights relating to the foregoing. Company and its licensors reserve all rights not expressly granted under these Terms. There are no implied licenses in these Terms. The Service and any copy thereof is licensed, not sold, to you under these Terms.

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4. YOUR CONTENT AND CONDUCT.

4.1 User Content. "User Content" means any content provided, imported or uploaded to the Service by you or on your behalf via the Licensed Application or Site. By uploading, distributing, or otherwise using your User Content with the Service, you grant, and you represent and warrant that you have the right to grant, Company an irrevocable, nonexclusive, royalty-free and fully paid, worldwide license, with the right to grant sublicenses, to reproduce, distribute, publicly display, publicly perform, prepare derivative works of, incorporate into other works, and otherwise use the User Content, as necessary, for purposes of delivering the Service to you, improving the Service, and for purposes of marketing products and services that are made available together with, or as part of, the Service. You are solely responsible for your User Content. You assume all risks associated with use of the User Content, including any reliance on its accuracy, completeness or usefulness by Company or others, or any disclosure of the User Content that makes you or any third party personally identifiable. You further acknowledge and agree that other Users of the Service may upload, distribute, or make available content on the Service and that we are not responsible for, nor do we have any liability for, any such content on the Service. You use and access all such content at your own risk.

4.2 Acceptable Content. You shall not provide any User Content that: (a) infringes any copyright, trademark, or patent; (b) misappropriates any trade secret; (c) is deceptive, defamatory, obscene, pornographic, invasive of another's privacy, hateful, or racially, ethnically, or otherwise objectionable; (d) contains any malicious computer programming codes able to damage the Licensed Application, Site, or Service; (e) violates any law, regulation, or contractual obligation; or (f) otherwise violates these Terms or the rights of any third party.

4.3 Referral Program. Company may provide features which enable you to refer third parties to the Service (each, a "Referred Person"). You may only refer persons with whom you have a personal relationship, who are a legal resident of the United States, and who are of legal age of majority. You are responsible for informing the Referred Person that communications may be sent to them from us on your behalf and for obtaining their prior consent to any such communication. We reserve the right to amend or disqualify any referrals made in violation of these Terms or deemed by Company to be contrary to the purposes of the program. Company may provide incentives for Referred Persons who create accounts; such rewards will be subject to the Enthuse Rewards Program Terms and Conditions.

4.4 Voting and Rating Features. Any voting or rating features provided by Company will be accompanied by instructions on the use of such features ("Voting Instructions"). We reserve the right to amend or disqualify any votes at any time, including votes made in violation of the Voting Instructions, made in violation of these Terms, or deemed by Company to be contrary to the purposes of these features. In addition, we reserve the right to amend the Voting Instructions as such instructions are published by Company from time to time without notice to you.

4.5 Feedback. Company will treat any suggestions, comments, or feedback relating to Company's business, services, and products ("Feedback") that you provide as non-confidential and non-proprietary. You hereby grant Company the irrevocable, worldwide, fully transferable and sublicensable right to use and exploit any Feedback that you provide in any manner and for any purpose without any obligation to compensate you.

5. COMPANY USE OF INFORMATION; PRIVACY.

The terms of Company's Privacy Policy, available at [http://enthu.se/privacy], are hereby incorporated by reference into these Terms. In the event of a conflict between the terms of the Privacy Policy and these Terms, these Terms take precedence and control.

6. ENTHUSE REWARDS PROGRAM.

Enthuse may from time to time provide you with opportunities to redeem rewards as a result of your use of the Service. ("Enthuse Rewards Program") The Enthuse Rewards Program is also governed by a separate Enthuse Rewards Program Terms and Conditions. The Enthuse Rewards Program Terms and Conditions are hereby incorporated by reference into these Terms. In the event of a conflict between the Enthuse Rewards Program Terms and Conditions and these Terms, these Terms take precedence and control.

7. THIRD PARTY WEBSITES AND SERVICES.

Our Service may contain links to Internet sites, promotions, sponsorships, and services maintained by third parties ("Third Party Sites and Services"). Our service may enable you to order and receive products, rewards, information, or services from Third Party Sites and Services. These links and services are provided for your reference only. We do not control, operate, or endorse in any respect information, products, or services on Third Party Sites and Services and are not responsible for such information, products, or services. Many Third Party Sites and Services have their own terms of use and privacy policies that differ from ours. We are not responsible for monitoring any transaction between you and such third parties. These Terms only apply to our Service, Site, and Licensed Application and does not apply to Third Party Sites and Services.

8. AVAILABILITY AND MODIFICATION OF SERVICE; NO INTERNET ACCESS.

Company reserves the right, from time to time, with or without notice, to suspend, modify, or discontinue the Service, in whole or in part. You agree that Company will not be liable to you or to any third party for modification, discontinuance, or suspension of the Service, in whole or in part. You acknowledge that you must have Internet connectivity to use the Service. Company is not responsible for providing you Internet connectivity.

9. NO WARRANTY.

TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY (AND ITS LICENSORS) PROVIDES THE SERVICE "AS-IS" AND "AS AVAILABLE" AND EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, AND NON-INFRINGEMENT. COMPANY (AND ITS LICENSORS) MAKES NO WARRANTY THAT THE SERVICE WILL BE UNINTERRUPTED, FREE OF VIRUSES OR OTHER HARMFUL CODE, TIMELY, SECURE, OR ERROR-FREE. COMPANY (AND ITS LICENSORS) DOES NOT GUARANTEE AND DOES NOT PROMISE ANY SPECIFIC RESULTS FROM THE USE OF THE SERVICE, SITE, OR THE LICENSED APPLICATION.

10. LIMITATION OF LIABILITY.

TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, (A) COMPANY WILL NOT BE LIABLE FOR ANY LOSS OF USE, LOST PROFITS, OR INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO YOUR USE OF THE SERVICE, THE LICENSED APPLICATION, THE SITE, OR THESE TERMS, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. AND (B) COMPANY'S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THE SERVICE, THE LICENSED APPLICATION, THE SITE, AND THESE TERMS WILL AT ALL TIMES BE LIMITED TO THE GREATER OF FIFTY U.S. DOLLARS (U.S. $50) OR THE AMOUNTS PAID BY YOU TO APPLE FOR THE LICENSED APPLICATION. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. IN NO EVENT WILL COMPANY'S SUPPLIERS OR LICENSORS HAVE ANY LIABILITY UNDER OR RESULTING FROM THESE TERMS.

11. USER INDEMNIFICATION.

You agree to indemnify and hold Company, its subsidiaries, affiliates, directors, officers, agents, and employees harmless from any loss, liability, claim, demand, costs, or expenses, including reasonable attorney's fees, arising out of or relating to your: (a) use or misuse of the Service, Site, or Licensed Application; (b) breach or violation of these Terms; or (c) violation of applicable laws or any of the rights of third parties. Company reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Company. Company will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.

12. COPYRIGHT POLICY.

You may not post, distribute, or reproduce in any way any copyrighted material, trademarks, or other proprietary information of Company or its licensors unless you have the right to do so. It is Company's policy to, in its sole discretion, terminate access for any user who repeatedly infringes copyright rights of Company or third parties. If you believe that your work has been copied and posted on the Service in a way that constitutes copyright infringement, please follow the requirements for appropriate notifications under the Digital Millennium Copyright Act (DMCA), 17 U.S.C. § 512. At a minimum, you must provide our Copyright Agent with the following information: an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; a description of the copyrighted work that you claim has been infringed; an identification of the location on the Service of the material that you claim is infringing; your address, telephone number, and email address; a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.

13. APPLE APP STORE ADDITIONAL TERMS AND CONDITIONS.

The following additional terms and conditions apply to you if you are using a Licensed Application from the Apple App Store. To the extent the other terms and conditions of these Terms are less restrictive than, or otherwise conflict with, the terms and conditions of this Section 13, the more restrictive or conflicting terms and conditions in this Section 13 apply, but solely with respect to Licensed Applications from the Apple App Store.

13.1 Acknowledgement: You and Company acknowledge that these Terms are concluded between You and Company only, and not with Apple, and Company, not Apple, is solely responsible for the Licensed Application and the content thereof. To the extent the other terms and conditions of these Terms are less restrictive than the Usage Rules set forth for Licensed Applications in, or otherwise is in conflict with, the App Store Terms of Service as of the effective date, the more restrictive or conflicting Apple terms and conditions apply.

13.2 Scope of License: The license granted to you for the Licensed Application is limited to a non-transferable license to use the Licensed Application on any iPhone or iPod touch that you own or control and as permitted by the Usage Rules set forth in the App Store Terms of Service.

13.3 Maintenance and Support: Company is solely responsible for providing any maintenance and support services with respect to the Licensed Application, as specified in these Terms, or as required under applicable law. You and Company acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Licensed Application.

13.4 Warranty: Company is solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the Licensed Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Licensed Application to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Licensed Application, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Company's sole responsibility.

13.5 Product Claims: You and Company acknowledge that Company, not Apple, is responsible for addressing any claims of you or any third party relating to the Licensed Application or your possession and/or use of that Licensed Application, including, but not limited to: (i) product liability claims; (ii) any claim that the Licensed Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. These Terms do not limit Company's liability to you beyond what is permitted by applicable law.

13.6 Intellectual Property Rights: You and Company acknowledge that, in the event of any third party claim that the Licensed Application or your possession and use of that Licensed Application infringes that third party's intellectual property rights, Company, not Apple, is solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.

13.7 Legal Compliance: You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.

13.8 Developer Name and Address: Company legal name and address, and the contact information (telephone number; e-mail address) for end-user questions, complaints or claims with respect to the Licensed Application is set forth in Section 14.11.

13.9 Third Party Beneficiary: You and Company acknowledge and agree that Apple, and Apple's subsidiaries, are third party beneficiaries of these Terms, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary thereof.

14. MISCELLANEOUS.

14.1 Governing Law and Venue. These Terms and any action related hereto will be governed and interpreted by and under the laws of the State of California, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. You hereby expressly consent to the personal jurisdiction and venue in the state and federal courts for the county in which Company's principal place of business is located for any lawsuit filed there against you by Company arising from or related to these Terms. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms. The laws of the jurisdiction where you are located may be different from California law. You shall always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its purchase and use of the Service hereunder

14.2 Arbitration.

(a) Any claim or dispute (excluding claims for injunctive or other equitable relief as set forth below) in connection with this Agreement where the total amount of the award sought is less than Five Thousand U.S. Dollars (US $5,000.00) may be resolved in a cost effective manner through binding non-appearance-based arbitration, at the option of the party seeking relief. Such arbitration shall be initiated through an established alternative dispute resolution provider ("ADR Provider") that offers arbitration as set forth in this section and under the rules of such ADR Provider, except to the extent such rules are in conflict with this Agreement. The party demanding arbitration will propose an ADR Provider and the other party shall not unreasonably withhold consent to use such ADR Provider. The ADR Provider and the parties must comply with the following rules: (1) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (2) all arbitration proceedings shall be held in English; (3) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (4) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Each party shall bear its own costs (including attorney fees) and disbursements arising out of the arbitration, and shall pay an equal share of the fees and costs of the ADR Provider. Notwithstanding the foregoing, Company may seek injunctive or other equitable relief to protect its intellectual property rights in any court of competent jurisdiction. Please note that the laws of the jurisdiction where you are located may be different from California law, including the laws governing what can legally be sold, bought, exported, offered or imported. You shall always comply with all the international and domestic laws, ordinances, regulations and statutes that re applicable to your use of the Website and the Services.

(b) Any other dispute (including whether the claims asserted are arbitrable) shall be referred to and finally determined by arbitration in accordance with the [JAMS Commercial Arbitration Rules] (the "Rules") and shall be administered by the [San Jose, California office of JAMS] (the "Administrator"). To the extent there is any conflict between the provisions set forth in this section and any procedural or other rules issued by the Administrator, this section will control. The location of the arbitration will be [San Jose, California USA]. The dispute(s) shall be submitted to a single arbitrator ("Arbitrator") chosen by the parties or selected by the parties from a list of potential arbitrators provided by the Administrator. The Administrator shall provide such list to the parties 10 days after request by either party. Should the parties be unable to agree on a choice of arbitrator within 10 days after receipt of the list from the Administrator, then the Administrator will select the Arbitrator. The arbitral proceedings, and all pleadings and written evidence will be in the English language. Any written evidence originally in a language other than English will be submitted in English translation accompanied by the original or true copy thereof. The English language version will control. Each party shall bear its own attorney's fees, costs, and disbursements arising out of the arbitration, and shall pay an equal share of the fees and costs of the Administrator and the Arbitrator; provided, however, the Arbitrator shall be authorized to determine whether a party is the prevailing party, and if so, to award to that prevailing party reimbursement for its reasonable attorneys' fees, costs and disbursements (including, for example, expert witness fees and expenses, photocopy charges, travel expenses, etc.), and/or the fees and costs of the Administrator and the Arbitrator. The Arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The Arbitrator will not have authority to award damages in excess of the amount, or other than the types, allowed by Section 9 of this Agreement. Judgment on the award of the Arbitrators may be entered by any court of competent jurisdiction. The Arbitrator also shall be authorized to grant any temporary, preliminary or permanent equitable remedy or relief it deems just and equitable and within the scope of this Agreement, including, without limitation, an injunction or order for specific performance. The arbitration award shall be final and binding upon the parties without appeal or review except as permitted by California law or United States Federal law.

(c) By using the Service in any manner, you agree to the above arbitration provision. In doing so, YOU GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend any claims between you and Company (except for matters that may be taken to small-claims court). YOU ALSO GIVE UP YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION OR OTHER CLASS PROCEEDING. Your rights will be determined by a NEUTRAL ARBITRATOR, NOT A JUDGE OR JURY. You are entitled to a fair hearing before the arbitrator. The arbitrator can grant any relief that a court can, but you should note that arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.

14.3 For U.S. Government End Users. The Licensed Application is a "commercial item," as that term is defined at 48 C.F.R. 2.101 (OCT 1995), and more specifically is "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212 (SEPT 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (JUNE 1995), the Licensed Application is provided to U.S. Government End Users (a) only as a commercial end item and (b) with only those rights as are granted to all other customers pursuant to the terms and conditions herein.

14.4 Legal Compliance. The Licensed Application and related technology are subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree to strictly comply with all such laws and regulations and acknowledge that you have the responsibility to obtain authorization to export, re-export, or import the Licensed Application and related technology, as may be required. You represent and warrant that you (a) are not located in a country subject to an U.S. Government embargo or that has been designated by the U.S. Government as a "terrorist supporting" country and (b) are not listed on any U.S. Government list of prohibited or restricted parties. You will indemnify and hold Company harmless from any and all claims, losses, liabilities, damages, fines, penalties, costs and expenses (including attorney's fees) arising from or relating to any breach by you of your representations, warranties, covenants, or obligations under this section.

14.5 Termination. These Terms and all licenses granted hereunder are effective on the date you first: (a) download the Licensed Application, or (b) access or use the Site and shall continue unless these Terms are terminated by either party for any reason or no reason. Your rights under these Terms will terminate automatically without notice from Company if you fail to comply with any term(s) of these Terms. Upon termination, all licenses granted by Company hereunder shall terminate and you shall immediately destroy or permanently erase any copies of the Licensed Application in your possession. You agree that we will have no liability to you for any costs, expenses, losses, damages, or liabilities arising out of or related to our termination of your access to and use of the Service, the Site, the Licensed Application, or these Terms. Even after these Terms are terminated for any reason, the following provisions of these Terms will remain in effect: [Sections 2, 3.2, 3.3, 4, 7, 9, 10, 11, 13, and 14].

14.6 Severability. If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Without limiting the generality of the foregoing, you agree that Section 10will remain in effect notwithstanding the unenforceability of any provision in Section 9.

14.7 Waiver. Any waiver or failure to enforce any provision of these Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

14.8 Remedies. The parties acknowledge that any actual or threatened breach of Section 3will constitute immediate, irreparable harm to the non-breaching party for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach. If any legal action is brought to enforce these Terms, the prevailing party will be entitled to receive its attorneys' fees, court costs, and other collection expenses, in addition to any other relief it may receive.

14.9 No Assignment. Neither party shall assign, subcontract, delegate, or otherwise transfer these Terms, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that Company may assign these Terms in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without your consent. These Terms shall be binding upon the parties and their respective successors and permitted assigns.

14.10 Trademark and Copyright Notice. Company names, slogans, graphics, logos, and trade names used on the Licensed Application are the trademarks of Company and may not be used without Company' permission. Third-party trademarks, service marks, and trade names that may appear on the Service are the property of their respective owners. Copyright © 2012, Enthuse, Inc.

14.11 Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of these Terms if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.

14.12 Notices and Disclosures. You are responsible for updating your data to provide Company with your most current email address. In the event that the last email address you have provided to Company is not valid, or for any reason is not capable of delivering to you any notices required by these Terms, Company's dispatch of the email containing such notice will nonetheless constitute effective notice of the changes described on the notice. Any notice provided to Company pursuant to these Terms should be sent to Pier 1, Bay 3 San Francisco, CA 94111. Company is located at Pier 1, Bay 3 San Francisco, CA 94111. If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.

14.13 Entire Agreement. These Terms are the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersede and merge all prior discussions between the parties with respect to such subject matters. No modification of or amendment to these Terms, or any waiver of any rights under these Terms, will be effective unless in writing and signed by an authorized signatory of you and an officer of Company.