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Terms of Use and End User License Agreement

Last Updated: January 24, 2019

These Terms of Use and End User License Agreement is a binding agreement between SIFF LLC, a California limited liability company (“SIFF”, “our”, “we” or “us”), and the person and/or entity identified in the Order (“Customer”). These Terms of Use and End User License Agreement, together with any documents they expressly incorporate by reference (collectively, these “Terms of Use”), govern Customer’s access to and use of SIFF Products, including, but not limited to, any content, functionality, software and/or services offered by SIFF on or through https://siff.io (the “Website”). Please refer to Section 12 for the definition of certain capitalized terms.

These Terms of Use require the use of arbitration on an individual basis to resolve disputes, rather than jury trials or class actions. Please see Section 10.c for more information. These Terms of Use are subject to change in accordance with Section 11.b.

Customer should read these Terms of Use carefully before acquiring or using any SIFF Products. By using any SIFF Products or by clicking to accept or agree to these Terms of Use when this option is made available to Customer, Customer accepts and agrees to be bound and abide by these Terms of Use and our Privacy Policy, found at , incorporated herein by reference. If Customer does not agree to these Terms of Use or the Privacy Policy, Customer must not access or use any SIFF Products.

By using any SIFF Products, Customer represents and warrants that it is permitted and/or authorized to form a binding contract with SIFF and meets all of the eligibility requirements set forth herein. If Customer does not meet all of these requirements, it must not access or use any SIFF Products.

  1. Proprietary Rights; License Grant and Scope.

    1. Ownership. Customer acknowledges and agrees that SIFF Products are provided under license, and are not sold, to Customer. Customer does not acquire any ownership interest in any SIFF Products under these Terms of Use, or any other rights thereto, other than to use the same in accordance with the licensed granted herein and subject to all terms, conditions and restrictions under these Terms of Use. SIFF reserves and shall retain its entire right, title and interest in and to SIFF Products and all Intellectual Property Rights arising out of or relating to SIFF Products, except as expressly granted to Customer in these Terms of Use. Customer shall use commercially reasonable efforts to safeguard all SIFF Products (including all copies thereof) from infringement, misappropriation, theft, misuse or unauthorized access.

    2. License Grant and Scope. Subject to and conditioned upon Customer’s payment of Fees set forth in the applicable Order and Customer’s strict compliance with all terms and conditions set forth in these Terms of Use, SIFF hereby grants to Customer a revocable, non-exclusive, non-transferable, non-sublicensable, limited license during the Subscription Term to do, solely by and through it and/or its Users, the following:
      1. access and use the Services identified in the Order solely for Customer’s internal business purposes, which shall not include the provision of services for the benefit of third parties;
      2. download, install, use and run SIFF Applications identified in the Order, solely in connection with Customer’s permitted use of the Services licensed to Customer under Section 1.b.i, including, but not limited to, collecting and transmitting Customer Content to other SIFF Products;
      3. use SIFF Content, solely in connection with Customer’s permitted use of the Services licensed to Customer under Section 1.b.i; and
      4. use the API to: (A) develop Applications solely for use with the Services licensed to Customer under Section 1.b.i (each, a “Customer Application”); and (B) distribute such Customer Applications solely for use with the Services licensed to Customer under Section 1.b.i.
    3. License Restrictions. The grant of rights to Customer in Section 1.b is subject to the following restrictions and limitations. Customer shall not, and shall not permit any third party to:
      1. use the applicable SIFF Products beyond the scope of the license granted under Section 1.b, including, but not limited to, using the applicable SIFF Products in excess of any limitations set forth in the Order (i.e. the number of devices SIFF Products can collect Customer Content from and the specific types of Customer Content that can be collected);
      2. reverse engineer, decompile, disassemble or otherwise attempt to discover source code, object code or underlying structures, ideas or algorithms of any SIFF Product;
      3. modify, translate or create derivative works based on any SIFF Product;
      4. remove, delete, alter or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices provided on, with or in any SIFF Products, including, but not limited to, the API;
      5. except as otherwise explicitly permitted herein, rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available SIFF Products, or any features or functionality of SIFF Products, to any third party for any reason, whether or not over a network or on a hosted basis, including in connection with the internet or any web hosting, wide area network, virtual private network, virtualization, time-sharing, service bureau, software as a service, cloud, or other technology or service;
      6. use the API in any way, except as set forth in the Documentation (https://docs.siff.io);
      7. make any statements or representations that a Customer Application was developed by SIFF or that SIFF guarantees the performance of, certifies or warranties such Customer Application in any way;
      8. use any SIFF Product for the purpose of monitoring its availability, performance, or functionality for competitive purposes;
      9. use any SIFF Product other than in accordance with these Terms of Use and in compliance with all applicable laws and regulations, including, but not limited to, any applicable privacy and intellectual property laws).

  2. Payments. Unless otherwise explicitly specified in an Order or other written agreement between Customer and SIFF, the terms in this Section 2 shall apply to each Order.

    1. Fees and Taxes. Customer agrees to timely pay all Fees specified in the Order. Once paid, such Fees may not be cancelled and are non-refundable, except as may be expressly set forth herein. Fees which are not paid within three (3) days after they are due will accrue a late fee equal to ten percent (10.0%) of the outstanding balance of such Fees. All payments are due and payable in advance or within such other period, if any, as stated in the Order. All Fees quoted by SIFF are exclusive of applicable taxes and duties, including any applicable sales and use tax. Customer is solely responsible for paying any taxes in connection with Customer’s purchase of SIFF Products. Any Fees for SIFF Applications not included in the Order will be as set forth on the access page of the Website for such SIFF Applications.
    2. Credit and Debit Card Payments.
      1. In general. If Customer is permitted to pay Fees via a credit or debit card and Customer chooses to do so, then Customer represents and warrants to SIFF that: (A) it will provide SIFF with valid and accurate credit or debit card information; and (B) it is duly authorized to use the applicable credit or debit card in connection with its purchase of SIFF Products.
      2. Purchases. If Customer is permitted to pay Fees via a credit or debit card and Customer chooses to do so, Customer hereby authorizes SIFF to charge its credit or debit card for all items set forth in the Order.
      3. Automatic Payments. Customer may also have the option to initiate automatic payments via its credit or debit card for recurring charges incurred in connection with SIFF Products, such as Subscription and license renewals. By enabling automatic payments, Customer authorizes SIFF to initiate recurring charges from its specified credit or debit card on the dates and in the amounts set forth in the Order, unless Customer otherwise terminates automatic payments in the manner described below.
      4. Compliance with Card Issuer. Customer agrees to be bound by any rules that Customer’s credit or debit card issuer requires for pre-authorized debit or credit card transactions. Customer is solely responsible for all fees charged by its credit or debit card issuer in connection with any payments made to SIFF.
      5. TERMINATION OF AUTOMATIC PAYMENTS. CUSTOMER HAS THE RIGHT TO TERMINATE ITS AUTHORIZATION OF AUTOMATIC PAYMENTS AT ANY TIME ONLINE BY LOGGING INTO CUSTOMER’S ACCOUNT AND TERMINATING AUTOMATIC PAYMENTS OR BY CONTACTING SIFF IN THE MANNER SET FORTH IN SECTION 11.j.
      6. Changes to Automatic Payment Information. Customer is responsible for updating all changes to its credit or debit card information by logging into Customer’s account. If Customer does not update its credit or debit card information and SIFF is unable to charge Customer’s credit or debit card for the amount due on its account, Customer may be subject to applicable late fees, termination of applicable SIFF Product Subscriptions and licenses and any fees charged or assessed by Customer’s credit or debit card issuer.
      7. SIFF SHALL BEAR NO RESPONSIBILITY OR LIABILITY FOR ANY LOSSES OF ANY KIND THAT CUSTOMER MAY INCUR AS A RESULT OF ANY DELAY IN THE ACTUAL DATE ON WHICH CUSTOMER’S CREDIT OR DEBIT CARD IS CHARGED.
    3. Not Contingent on Future Functionality. Customer acknowledges and agrees that its payment of Fees to SIFF are not contingent on the delivery of any future functionality or features in SIFF Products.

  3. Services and Security.

    1. Subscriptions. Subject to Customer’s compliance with these Terms of Use and payment of applicable Fees, we will make the applicable Services available to Customer during the Subscription Term. Each Subscription is accompanied by certain support services during the Subscription Term. Subject to downtime for maintenance, we will use commercially reasonable efforts to make the applicable Services available to Customer in accordance with SIFF’s Service Level Schedule (https://docs.siff.io/legal/servicelevel).
    2. Security. In order to keep each Customer’s information secure, SIFF implements various security processes and controls in accordance with industry standards. Such protocols include administrative, physical and technical safeguards, including, but not limited to, measures for preventing access, use, modification and/or disclosure of Customer Content by our personnel and contractors except in accordance with our Privacy Policy or as a Customer expressly permits in writing.
    3. Configuration Services. Subject to Customer’s payment of applicable Fees, SIFF will provide the deployment, usage assistance, configuration, and/or training services (if any) set forth in an Order in accordance with SIFF’s standard professional services terms and conditions.
    4. Trial and Beta Services.
      1. Trial Services. SIFF may make certain Services, Software, features and/or functions available to Customers without charge for limited periods of evaluation (each, a “Trial”). Each Trial will be for the term specified by SIFF and is subject to change or termination at any time and for any reason. Trials are not intended for and should not be used for production use. SIFF reserves the right to monitor Customer’s use of any Trial in accordance with our Privacy Policy and data collection provisions set forth herein. At the end of each Trial term, any Customer Content used or provided in such Trial will become inaccessible. SIFF has no obligation to provide any support for Trials.
      2. Beta Services. SIFF may make one or more Beta Services available to Customer. Customer acknowledges that Beta Services: (i) are actively being developed; (ii) have not been fully tested; (iii) may contain defects or deficiencies, which SIFF may never correct; (iv) may undergo significant changes prior to release of the generally available final version; (v) may never be released as completed software and the offering of Beta Services in no way guarantees that the features offered in such Beta Services will be available in any production-use SIFF Products. Beta Services are not intended for and should not be used for production use. SIFF reserves the right to monitor Customer’s use of any Beta Service in accordance with our Privacy Policy and data collection provisions set forth herein. Customer acknowledges that support may be limited or not offered for Beta Services.

  4. Customer Use of SIFF Products.

    1. Customer’s Responsibility for Users. Customer is solely responsible for: (i) ensuring that each User complies with these Terms of Use; (ii) ensuring that each User has a separate SIFF username and password; (iii) ensuring that a valid email address is provided for each User; (iv) ensuring that only one SIFF account is created per email address; and (v) securing, protecting and maintaining the confidentiality of Customer’s and each User’s account username, password and access tokens.
    2. Access and Use.
      1. Customer may only access and use SIFF Products in accordance with these Terms of Use.
      2. Customer is responsible for obtaining and maintaining all telecommunications, broadband and computer equipment and services needed to access and use SIFF Products, including applicable Services, and for paying all charges related thereto.
      3. To access SIFF Products, Customer may be asked to provide certain registration details or other information. It is a condition of Customer’s use of SIFF Products that all the information Customer provides to SIFF is correct, current and complete. In the event that any such information changes, Customer agrees to promptly update such information.
      4. Customer agrees that it shall be responsible for any access and use of SIFF Products via Customer’s or its Users’ accounts and for all activity that occurs in connection with Customer’s or its Users’ accounts, regardless of whether such activities were undertaken by Customer, a User or a third party. Customer agrees to notify SIFF immediately if Customer believes that an unauthorized third party may be using Customer’s account or if Customer’s account information is lost or stolen.
      5. Customer agrees that SIFF will not be liable for any loss or damage arising directly or indirectly from Customer’s failure to maintain the security of Customer’s account and password or for unauthorized access to Customer’s account.
      6. Unless specifically identified in an Order that Customer is purchasing SIFF Products for purposes related to HIPPA, PCI or GovCloud, Customer agrees to not transmit or store within SIFF Products: (i) any protected health data, as defined in the Health Insurance Portability and Accountability Act of 1996, as amended and supplemented by the Health Information Technology for Economic and Clinical Health Act, including the HIPAA omnibus final rule; (ii) financial information protected under the Gramm-Leach-Bliley Act; (iii) information protected by the International Traffic in Arms Regulations; or (iv) any matter that is export-controlled as provided in Section 9.
    3. Customer Content.
      1. Transmission of Customer Content. Customer hereby represents and warrants that Customer is the owner of, or has the legal right to use, all Customer Content that Customer transmits to or from SIFF Products. Without limiting any of SIFF’s security obligations hereunder, Customer is responsible for the security of Customer Content when such Customer Content is transmitted to and from SIFF Products. Customer acknowledges that any encryption of Customer Content stored (e.g. “encryption at rest”) on SIFF Products is subject to Customer’s separate purchase of such encryption features from SIFF or another third-party provider.
      2. Customer’s Responsibility for Customer Content. Customer is solely responsible for: (A) the accuracy, quality and lawful use of Customer Content and the means by which Customer acquires and/or transmits such Customer Content; (B) taking steps to maintain appropriate security, protection and backup of Customer Content (including the use of encryption technology to protect Customer Content from unauthorized access); and (C) securing, protecting and maintaining the confidentiality of Customer’s and each User’s account username, password and access tokens.
      3. Use of Customer Content. By submitting Customer Content to SIFF, whether manually or automatically through SIFF Products, Customer grants to SIFF and our respective successors and assigns a worldwide, royalty free, non-exclusive license and right to access and use such Customer Content for purposes consistent with applicable SIFF Products, these Terms of Use or our Privacy Policy.
      4. Confidentiality. SIFF shall treat Customer Content as Confidential Information and shall limit access of Customer Content to its employees, contractors, agents and Affiliates who have a bona fide need to access such Confidential Information for purposes consistent with these Terms of Use. Notwithstanding the foregoing sentence, SIFF may disclose Customer Content or any other Customer Confidential Information if it is compelled to do so by law, provided that SIFF gives Customer reasonable prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Customer’s sole cost, if Customer wishes to contest such disclosure. If SIFF is compelled by law to disclose Customer Content or any other Customer Confidential Information, as part of a civil proceeding to which Customer is a party, Customer will reimburse SIFF for its reasonable costs of compiling and providing secure access to such Customer Content.
    4. Customer Contributions.
      1. Ownership. By making any Customer Contributions, Customer represents and warrants that it is the owner of such Customer Contributions and/or has the necessary rights, licenses and authorizations to distribute it.
      2. Use of Customer Contributions. Any Customer Contribution Customer makes to the Community will be considered non-confidential and non-proprietary. By making any Customer Contribution to the Community, Customer grants SIFF and our affiliates and service providers, and each of their and our respective licensees, successors and assigns a perpetual, non-revocable, world-wide license and right to use, reproduce, modify, perform, display, distribute and otherwise disclose to third parties any such Customer Contribution for any purpose.
      3. Customer Responsibility. Customer understands and acknowledges that it is responsible for any Customer Contributions it makes to the Community, and Customer, not SIFF, have full responsibility for such content, including its legality, reliability, accuracy and appropriateness. SIFF is not responsible, or liable to Customer or any third party, for the content or accuracy of any Customer Contribution made to the Community by Customer or any other user of the Community.
      4. Subject to Content Restrictions. All Customer Contributions are subject to SIFF’s content standards, review, approval and certification.
    5. Suggestions. Customer grants to SIFF a perpetual, irrevocable, royalty free, worldwide, non-exclusive, transferable, sublicensable right and license to commercially exploit in any manner SIFF deems fit any Suggestions that Customer provides to SIFF.
    6. Third-Party Content and Resources. Certain SIFF Products may contain functionality, which enables the interoperation of such SIFF Products with Third-Party Content. In order to use Third-Party Content with SIFF Products, Customer may be required to grant SIFF access to Customer’s Third-Party Content account. By using, or authorizing SIFF to use, any Third-Party Content, Customer represents and warrants to SIFF that: (i) it has obtained the necessary license to use such Third-Party Content in connection with the applicable SIFF Products; and (ii) it has, and will continue to, comply with all terms and conditions of the applicable Third-Party Content license and terms of use.

      To the extent that Customer has enabled, authorized or directed SIFF to use Third-Party Content, Customer further authorizes SIFF to transmit and/or permits the transmission of Customer Content, as may be necessary for the interoperation of such Third-Party Content with the applicable SIFF Products. Customer agrees that SIFF is not responsible or liable for disclosure, modification or deletion of Customer Content resulting from access to Customer Content by such Third-Party Content or such Third-Party Content provider, nor is SIFF liable for any damages Customer may incur, directly or indirectly, as a result of Customer’s use of and/or reliance upon, any Third-Party Content, sites or resource.

    7. Data Collection and Operational Metrics. From time to time, SIFF may collect and process technical and related information about Customer’s use of SIFF Products, which may include, without limitation, ingest volume, search concurrency, number of unique user logins, internet protocol address, page views, session duration and other similar data) and certain, aggregated, anonymized data about the environment, performance, configuration and usage of such information to support and troubleshoot issues, provide updates, invoice, analyze trends and improve SIFF Products. Customer agrees that all such information SIFF collects and all other information that Customer provides to SIFF shall be governed by our Privacy Policy, and Customer hereby consents to all actions we take with respect to collecting, processing and sharing its information consistent with these Terms of Use and our Privacy Policy.

  5. Termination.

    1. Term. These Terms of Use and each license granted hereunder shall remain in effect for the Subscription Term or until earlier terminated as set forth herein (the “Term”).
    2. SIFF’s Right to Terminate.
      1. Termination for Breach. SIFF may terminate these Terms of Use, effective upon written notice to Customer, if Customer breaches these Terms of Use and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured for thirty (30) days after SIFF provides written notice thereof.
      2. Termination for Bankruptcy. SIFF may terminate these Terms of Use, effective immediately, if Customer files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property.
    3. Customer’s Right to Terminate.
      1. In General. Customer may terminate these Terms of Use by ceasing to use and destroying, as applicable, all copies of SIFF Products and Documentation.
      2. Upon Certain Changes to These Terms of Use. In the event that SIFF makes any material change to these Terms of Use, which (A) places additional material restrictions or limitations on any license granted to Customer hereunder, (B) further restricts Customer’s right to arbitrate or bring an action against SIFF, (C) expands limitations on SIFF’s liability or (D) expands Customer’s indemnification obligations, then Customer shall have thirty (30) days after such change to terminate these Terms of Use by providing written notice to SIFF. In the event that Customer exercises its termination right under this Section 5.c.ii, SIFF shall refund to customer, from the date of the applicable material change to these Terms of Use, any prepaid Fees for the affected SIFF Products. If Customer does not exercise its termination right within the thirty (30) day period specified above, Customer shall be deemed to have accepted such changes and shall have no right to terminate these Terms of Use under this Section 5.c.ii.
    4. Effect of Termination. Upon expiration or earlier termination of these Terms of Use, any license or right granted to Customer hereunder shall also terminate, and Customer shall: (i) no longer have access to any applicable Service, including access to Customer’s SIFF account and Customer Content; and (ii) cease using and, to the extent possible, destroy all copies of SIFF Products and Documentation. No expiration or termination shall affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination, or entitle Customer to any refund, in each case except as set forth in Section 5.c.ii and 6.c.ii.
    5. Account Inactivity, Termination and Data Deletion. Customer accounts status shall be marked as “inactive” after thirty (30) days consecutively of non-use. Should the account have zero dollar ($0.00) or less in payment balance and have remained “inactive” for total of sixty (60) days consecutively, the account status will be marked as “closed” and the Terms of Use agreement will be considered as terminated.

      Non-use is defined as having no Customer login activity. To keep the account “active”, the Customer must log into the SIFF application at least once every thirty (30) days. SIFF will notify the Customer upon change of account status. SIFF will continue to retain the Customer’s data during the “inactive” status until the account is “closed”.

      Once the account is “closed”, data associated with the account may be permanently deleted or otherwise destroyed. Customer data cannot be recovered at any time once it is permanently deleted. SIFF follows a deletion policy that insures that the customer data is safely and completely removed from our servers or retained only in anonymized form.

      Legal and business requirements oblige SIFF to retain certain information, for specific purposes, for an extended period of time.  Reasons we may retain some data for longer periods of time include:

      1. Security, fraud & abuse prevention
      2. Financial record-keeping
      3. Complying with legal or regulatory requirements
      4. Ensuring the continuity of our services
      5. Direct communication with SIFF

  6. Limited Warranties, Exclusive Remedy and Disclaimer.

    1. Limited Warranty. Solely with respect to SIFF Products for which Customer pays SIFF the applicable Fees, SIFF warrants that during the Subscription Term applicable to such SIFF Products: (i) SIFF will not materially decrease the overall functionality of such SIFF Products; and (ii) such SIFF Products will perform materially in accordance with the applicable Documentation.

      THE FOREGOING WARRANTY DOES NOT APPLY, AND SIFF STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY CONTENT.

    2. Voided Warranty. The Warranty set forth in Section 6.a will not apply and will become null and void if Customer breaches any material provision of these Terms of Use, or if Customer or any User, whether or not in violation of this Agreement (i) installs or uses any SIFF Product on or in connection with any hardware or software not specified in the Documentation or expressly authorized by SIFF in writing or (ii) misuses any SIFF Product, including any use other than as specified in the Documentation or expressly authorized by SIFF in writing.
    3. Sole Remedies. If, during the applicable Subscription Term, any SIFF Product covered by the warranty set forth in this Section fails to perform substantially in accordance with the Documentation, and such failure is not excluded from warranty pursuant to Section 6.b, SIFF will, subject to Customer’s promptly notifying SIFF in writing of such failure, at its sole option, either:
      1. repair or replace the applicable SIFF Product, provided that Customer provides SIFF with all information SIFF reasonably requests to resolve the reported failure, including sufficient information to enable SIFF to recreate such failure; or
      2. refund the Fees paid for such SIFF Product, subject to Customer’s ceasing all use of such SIFF Products.
      The remedies set forth in this Section 6.c are Customer’s sole remedies and SIFF’s sole liability under these Terms of User.
    4. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN 6.a, SIFF PRODUCTS AND DOCUMENTATION ARE PROVIDED TO CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, SIFF, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO SIFF PRODUCTS AND DOCUMENTATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, SIFF PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT SIFF PRODUCTS WILL MEET THE CUSTOMER’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. TO THE EXTENT THAT SUCH A LAW APPLIES TO CUSTOMER, SOME OR ALL OF THE EXCLUSIONS SET FORTH ABOVE MAY NOT APPLY TO CUSTOMER, AND CUSTOMER MAY HAVE ADDITIONAL RIGHTS.

  7. Limitation of Liability. To the fullest extent permitted under applicable law:

    1. IN NO EVENT WILL SIFF OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO Customer OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY, OR INABILITY TO USE SIFF Products; LOST REVENUES OR PROFITS; DELAYS, INTERRUPTION, OR LOSS OF SERVICES, BUSINESS, OR GOODWILL; LOSS OR CORRUPTION OF DATA; LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION, OR SHUTDOWN; FAILURE TO ACCURATELY TRANSFER, READ, OR TRANSMIT INFORMATION; FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION; SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION; OR BREACHES IN SYSTEM SECURITY; OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF USE, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SIFF WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
    2. IN NO EVENT WILL SIFF’S AND ITS AFFILIATES’, INCLUDING ANY OF ITS OR THEIR RESPECTIVE LICENSORS’ AND SERVICE PROVIDERS’, COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THESE TERMS OF USE OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO SIFF PURSUANT TO these Terms of Use FOR UP TO TWELVE (12) MONTHS OF THE SPECIFIC SIFF PRODUCTS THAT IS OR ARE THE SUBJECT OF THE CLAIM.
    3. THE LIMITATIONS SET FORTH IN SECTION 7.A AND SECTION 7.B SHALL APPLY EVEN IF CUSTOMER’S REMEDIES UNDER THESE TERMS OF USER FAIL OF THEIR ESSENTIAL PURPOSE.

  8. Indemnification. Customer shall indemnify and hold harmless SIFF, its affiliates, licensors and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys’ fees) arising out of or relating to Customer’s violation of these Terms of Use, including, but not limited to, Customer Contributions and any use of SIFF products other than as expressly authorized in these Terms of Use or Documentation.

  9. Import and Export Regulation. SIFF Products and any feature or part thereof may not be available for use in all jurisdictions and SIFF makes no representation or warranty that SIFF Products and any feature or part thereof is appropriate or available for use in any particular jurisdiction. To the extent Customer chooses to access and use any SIFF Product, Customer does so at Customer’s own initiative and at Customer’s own risk, and Customer is responsible for complying with any applicable laws, rules, and regulations with respect to such access and use.

    SIFF Products and Documentation may be subject to US export control laws, including the US Export Administration Act and its associated regulations and may also be subject to the customs and export laws and regulations of other countries. Customer shall not, directly or indirectly, export, re-export, or release SIFF Products or Documentation to, or make SIFF Products or Documentation accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by any applicable law, rule, or regulation.

    Customer agrees to comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing or otherwise making SIFF Products or Documentation available outside of the US.

  10. Governing Law; Jurisdiction; Arbitration; and Limitation on Time to File Claims.

    1. Governing Law. All matters relating to these Terms of Service, SIFF Products or Documentation and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction). The UN Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act shall not apply to these Terms of Use.
    2. Jurisdiction. Subject to Section 10.c and Section 10.d, any legal suit, action or proceeding arising out of, or related to, these Terms of Use, SIFF Products or Documentation shall be instituted exclusively in the federal courts of the United States or the court of the State of California, in each case located in the City of Santa Ana and County of Orange. Customer waives any and all objections to the exercise of jurisdiction over it by such courts and to venue in such courts. Notwithstanding the foregoing sentence, SIFF reserves the right to bring any suit, action or proceeding against Customer for breach of these Terms of Use in Customer’s country of residence.
    3. Arbitration Agreement.

      This Section 10.c (this “Arbitration Agreement”) applies only to Customers in the United States and notwithstanding any choice of law or other provision in these Terms of Use, the parties hereto agree and acknowledge that this Arbitration Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act (“FAA”) will govern its interpretation and enforcement and proceedings pursuant thereto.

      By agreeing to these Terms of Use, Customer agrees that it is required to resolve any claim that it may have against SIFF on an individual basis in arbitration, as set forth in this Section 10.c. This will preclude Customer from bringing any class, collective or representative action against SIFF.

      The parties hereto acknowledge and agree that they are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Unless both parties otherwise agree in writing, any arbitration will be conducted only on an individual basis and not in a class, collective, consolidated, or representative proceeding. However, each party retains the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights.

      Customer and SIFF agree that any dispute, claim, or controversy between Customer and SIFF arising out of or relating in any way to SIFF Products, these Terms of Use or Customer’s relationship with SIFF (whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and whether the claims arise during or after the termination of these Terms of Use) will be determined by mandatory binding individual (not class) arbitration and not in a court of law.

      Either Customer or SIFF may start arbitration proceedings. Any arbitration between Customer and SIFF will take place under the Consumer Arbitration Rules of the American Arbitration Association (“AAA”) then in force (the “AAA Rules”), as modified herein. The AAA Rules, as well as instructions on how to file an arbitration proceeding with the AAA, appear at adr.org, or Customer may call the AAA at 1-800-778-7879.

      The parties hereto agree that the arbitrator (“Arbitrator”), and not any federal, state or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether these Terms of Use are unconscionable or illusory and any defense to arbitration, including waiver, delay, laches or estoppel.

      A party who wishes to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. The Arbitrator shall be mutually agreed upon by the parties, however, if the parties are unable to agree upon an Arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the Arbitrator in accordance with the AAA Rules.

      Each party’s responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. Unless otherwise agreed to by the parties in writing, the arbitration will be conducted in the county (or parish) of Customer’s billing address. If Customer’s claim does not exceed Ten Thousand Dollars ($10,000.00), then the arbitration will be conducted solely on the basis of documents Customer and SIFF submit to the Arbitrator, unless either party requests a hearing or the Arbitrator determines that a hearing is necessary. If Customer’s claim exceeds Ten Thousand Dollars, Customer’s right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the Arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration

      The Arbitrator will render an award within the time frame specified in the AAA Rules. Judgment on the arbitration award may be entered in any court of competent jurisdiction. An Arbitrator’s decision shall be final and binding on all parties. An Arbitrator’s decision and judgment thereon shall have no precedential or collateral estoppel effect.

    4. LIMITATION OF TIME TO FILE CLAIMS. TO THE EXTENT ALLOWED BY APPLICABLE LAW, ANY CAUSE OF ACTION OR CLAIM CUSTOMER MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OF USE, SIFF PRODUCTS OR DOCUMENTATION MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.

  11. Miscellaneous.

    1. Anti-Corruption. SIFF maintains programs to comply with certain anti-corruption and anti-bribery laws. Each party hereto represents and warrants to the other that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any employees or agents of the other party in connection with these Terms of Use. Reasonable gifts and entertainment provided in the ordinary course of business does not violate the aforementioned restriction.
    2. Amendment. Subject to Customer’s right to terminate these Terms of Use under Section 5.c.ii and except as otherwise explicitly set forth herein, SIFF reserves the right to revise and update these Terms of Use from time to time in our sole discretion. Except as otherwise explicitly set forth herein, all changes are effective immediately when we post them. However, any changes to the dispute resolution provisions set forth in Section 5.c.ii will not apply to any disputes for which the parties have actual notice on before the date the change is posted on the Website. Customer’s continued use of SIFF Products following notice of any revised Terms of Use means that Customer accepts and agrees to the changes.
    3. No Joint Venture; No Third-Party Beneficiaries. These Terms of Use do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties hereto. Except as otherwise specified herein, these Terms of Use are for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms of Use.
    4. Severability. If any term or provision of these Terms of Use is held by a court of competent jurisdiction to be contrary to law, invalid or unenforceable, such term or provision will be modified by the court and interpreted so as best to accomplish the objects and intent of the original term or provision to the fullest extent permitted by law, and the remaining terms and provisions of these Terms of Use will remain in effect. If such construction is not possible, the invalid or unenforceable portion will be severed from these Terms of Use, but the remainder of these Terms of Use will remain in full force and effect.
    5. Assignment. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under these Terms of Use, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without SIFF’s prior written consent, which consent SIFF may give or withhold in its sole discretion. No delegation or other transfer will relieve Customer of any of its obligations or performance under these Terms of Use. Any purported assignment, delegation, or transfer in violation of this Section 11.d shall be null and void. SIFF may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under these Terms of Use without Customer’s consent. These Terms of Use are binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
    6. Force Majeure. SIFF will not be responsible or liable to Customer, or deemed in default or breach hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning, or Customer equipment, loss and destruction of property, or any other circumstances or causes beyond SIFF’s reasonable control.
    7. No Waiver. The failure of either party hereto to exercise or enforce any right or provision of these Terms of Use will not constitute a waiver of such right or provision or of any other right or provision. All waivers must be in a writing executed by both parties hereto to be effective.
    8. Headings. The headings in these Terms of Use are for reference only and do not affect the interpretation of these Terms of Use.
    9. Certain Terms. For purposes of these Terms of Use, (a) the words “include,” “includes,” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to these Terms of Use as a whole. These Terms of Use shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The Order and Privacy Policy referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein.
    10. Entire Agreement. This Agreement, together with the Order, Privacy Policy and all other documents that are incorporated by reference herein, constitutes the sole and entire agreement between SIFF and Customer with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
    11. Notices to Customer and Consent to Electronic Communications. Customer consents to receiving electronic communications and notifications from SIFF in connection with Customer’s use of SIFF Products and these Terms of Use. Customer agrees that any such communication will satisfy any applicable legal or contractual communication requirements, including that such communications be in writing. SIFF may provide Customer with notices regarding SIFF Products, including changes to these Terms of Use, by email to the email address of Customer (and/or other alternate email address associated with Customer’s SIFF account if provided), or by regular mail. Customer agrees to keep its email address current. Customer may provide notice via email to SIFF at [email protected] or via regular mail to SIFF LLC, 100 Via Escorial, San Clemente, California 92672. Notices that are provided by email will be effective when the email is sent. Notices that provided by regular mail shall be effective on the third (3rd) day after the date mailed, by certified or registered mail, return receipt requested.
    12. Survival. The provisions set forth in the following Sections, and any other right or obligation of the parties hereto that, by its nature, should survive termination or expiration of these Terms of Use, will survive any expiration or termination of these Terms of Use: 1.a, 2, 4.c, 4.d, 4.e, 4.g, 5.d, 5.e, 6, 7, 8, 10 and 11.

  12. Defined Terms.

    1. “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.
    2. “API” or “Application Programming Interface” means a set of programming instructions and standards, which SIFF makes available to Customers for accessing particular Services programmatically.
    3. “Application” means any suite, configuration file, add-on, technical add-on, example module, command, function or application that extends the features or functionality of the applicable Service or the underlying SIFF Software.
    4. “Beta Service” means a preview, limited release, alpha, beta or other pre-released version or feature of SIFF Products for non-production use.
    5. “Community” means any portion of the Website and Product designated by SIFF for the posting, sharing and/or distribution of Customer Contributions.
    6. “Confidential Information” means all nonpublic information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is identified as “confidential.” Customer Confidential Information includes Customer Content. Notwithstanding the foregoing, “Confidential Information” does not include any information that: (A) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (B) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (C) is received from a third party without breach of any obligation owed to the Disclosing Party; or (D) was independently developed by the Receiving Party.
    7. “Customer Content” means any Proprietary Information Customer provides to SIFF or which SIFF Applications collect from Customer; provided, however, that ”Customer Content” shall not include Customer Contributions.
    8. “Customer Contributions” means any content or material that Customer submits, publishes, displays or transmits to other users or persons on or through the Website and Product. For the avoidance of doubt, “Customer Contributions” shall not include Customer Content.
    9. “Data Storage” means the volume of data storage Customer purchases.
    10. “Documentation” means online user guides, documentation and help and training materials published on the Website (https://docs.siff.io) or accessible through certain SIFF Products, as may be updated by SIFF from time to time.
    11. “Effective Date” means the date a Service commences as listed on the Order.
    12. “Fees” means all fees, charges and taxes thereon, paid or required to be paid by Customer in connection with any Order, purchase and/or subscription of SIFF Products.
    13. “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
    14. “Maximum Daily Indexing Volume” means the maximum aggregate volume, in gigabytes, of uncompressed data that Customer may index using a Service each calendar day, as such maximum volume is specified in an Order.
    15. “Order” means a Customer purchase order or any equivalent ordering document in electronic or hard copy form, that SIFF has accepted and confirmed (including by confirmation email), specifying the SIFF Products Customer has purchased and/or subscribed to and any applicable Maximum Daily Indexing Volume, Data Storage and/or Subscription Term. If there is a conflict between an Order and these Terms of Use, the Order shall prevail.
    16. “Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.
    17. “Proprietary Information” means all information not generally known to the public, relating to: business processes, practices, methods, policies, trade secrets, internal controls, configurations and infrastructure. “Proprietary Information” shall also include information that would appear to a reasonable person to be confidential in the context and circumstances in which the information was disclosed or used.
    18. “Service” means any of the hosted services provided and maintained by SIFF for online searching, monitoring and analyzing of configuration data, including the associated API’s, the SIFF Software, and the SIFF Content. The Services do not include Customer Content, or any Third-Party Content, even if made available to Customer by SIFF in connection with any Service.
    19. “SIFF Application(s)” means Applications made available to enable capabilities required by the SIFF Service within the Customer’s environment. These include, but not limited to, collectors and agents deployed and installed on the Customer’s systems.
    20. “SIFF Content” means the information, data, technology and materials, other than SIFF Service, Software and Applications, that SIFF makes available at its discretion in connection with the Services, including Documentation, sample code, software libraries, command line tools, and other related technology such as, add-ons and templates. SIFF Content does not include SIFF Software.
    21. “SIFF Products” means, collectively, all Services, SIFF Applications, SIFF Content and SIFF Software.
    22. “SIFF Software” means a specific and unique instance of the SIFF software product that is made available to Customer as a Service or a part thereof, and includes any new releases or maintenance and support updates to such software as SIFF makes generally commercially available during the Subscription Term. SIFF Software does not include SIFF Applications.
    23. “Subscription” means SIFF’s provision of certain Services during the applicable Subscription Term.
    24. “Subscription Term” means the duration of Customer’s subscription to the applicable SIFF Products that begins on the Effective Date and ends on the date listed on the applicable Order. For the avoidance of doubt, “Subscription Term” shall include any authorized extensions or renewals.
    25. “Suggestion” means any suggested improvement or enhancement and any other recommendation or other feedback with respect to SIFF Products, which Customer provides to SIFF.
    26. “Third-Party Content” means any software, information, data, technology or materials licensed to Customer by a third party and used in connection with any SIFF Products.
    27. “User” means Customer and each individual Customer authorizes to use any SIFF Products that Customer has Subscribed to.