This Partie End User License Agreement (this "Agreement") is made between Partie Partners, LLC ("Partie", "we", or "us") and you, and if applicable, your organization ("you", "your", or "yours") (each a "Party" and together the "Parties"). The effective date of this Agreement is the date you accept these terms in accordance with Section 1 (Your Acceptance) (the "Effective Date").
By clicking the "Create Account" button presented during the account registration process on the Partie Platform, you acknowledge and agree that: (i) you have read all of the terms and conditions of this Agreement; (ii) you understand all of the terms and conditions of this Agreement; and (iii) you agree to be bound by all of the terms and conditions of this Agreement. If you do not accept the terms of this Agreement, Partie is unwilling to license the Partie Platform to you.
Your Authority to Accept.
You must be 13 years or older to use the Partie Platform. Do not use the Partie Platform unless you are at least 13 years of age. If you have reached the age of majority in your jurisdiction, then by accessing the Partie Platform you agree that you have read, understood, and accept to be bound by this Agreement. If you are 13 years or older, but have not reached the age of majority in your jurisdiction, then by accessing the Partie Platform, you agree that your parent or guardian has reviewed and accepts to be bound by these Terms. Moreover, if you are agreeing to this Agreement on behalf of a company or other legal entity ("Your Organization"), then (i) you represent and warrant that you have authority to act on behalf of, and to bind Your Organization and (ii) for all purposes in this Agreement, the term "you" means Your Organization on whose behalf you are acting.
"Intellectual Property" or "Intellectual Property Rights" means: (i) rights under patent law; (ii) rights under trademark law; (iii) rights under copyright law; (iv) rights in trade secrets and Confidential Information; and (v) other similar rights to exclude another from the use or enjoyment of an asset or process.
"Partie App" has the meaning set forth in Section 3.1 (Platform Configurations). The term "Partie App" includes any associated User Documentation and Updates.
"Partie Platform" means, as applicable: (i) the Partie Web Services; or (ii) the Partie App, depending on how you to choose to access our services. The term "Partie Platform" expressly excludes any Third Party Materials.
"Partie Web Services" has the meaning set forth in Section 3.1 (Platform Configurations). The term "Partie Web Services" includes any associated User Documentation and Updates.
"Updates" means additions, enhancements, security patches, new releases, and other work product relating to the Partie Platform that are developed by, at the direction of, or on behalf of, Partie.
"User Documentation" means user instructions, help information, service descriptions, system requirements information, data sheets, features information, and other similar materials that Partie provides to you for use with respect to the Partie Platform.
"User Materials" means all data, information, photographs, and other tangible or intangible material of any nature that you upload to or otherwise make available on the Partie Platform, including, for example, material containing your name, image, voice, and likeness. The term "User Materials" expressly includes Feedback.
Partie Grant of Rights.
Platform Configurations. We make the Partie Platform accessible in the following configurations: (i) as a web service accessible by your device's browser ("Partie Web Services"), and (ii) as a downloadable mobile (including tablet) or desktop software (the "Partie App").
Subscription License to the Partie Web Services. Subject to the terms and conditions of this Agreement, Partie hereby grants you, under Partie's Intellectual Property Rights and during the Term, a nonexclusive, non-sublicenseable, non-transferable, limited license to access and use the Partie Web Services through the Internet using your device's browser solely for the purposes permitted under this Agreement.
License to the Partie App. Subject to the terms and conditions of this Agreement, Partie hereby grants to you, under Partie's Intellectual Property Rights and during the Term, a nonexclusive, non-sublicenseable, non-transferable, limited license to download, install, and use the Partie App solely for the purposes permitted under this Agreement.
No Implied Rights.
There shall be no licenses or rights implied under this Agreement or based on any course of conduct.
End User Grant of Rights.
License to User Materials.
Subject to the terms and conditions of this Agreement, you hereby grant to Partie, under your Intellectual Property Rights, a perpetual, irrevocable, nonexclusive, sublicenseable, transferable, limited license to use, display, publish, and reproduce User Materials for Partie's business purposes, and without any obligation to account to you or to otherwise provide you with any consideration (including financial consider) in connection with such use.
License to Feedback.
The term "Feedback" means any comments, criticisms, reports, or other feedback, whether in oral or written form, that you provide to Partie regarding the function, features, and other characteristics of the Partie Platform including, without limitation, any errors, problems or defects in, or suggestions for changes or improvements to, the Partie Platform. Partie neither seeks nor requests Feedback, and this Agreement places no obligations on you to provide Partie with Feedback. To the extent you choose to provide Feedback to Partie, you agree that Partie shall be entitled to copy, modify, use, and otherwise exploit such Feedback without restriction and without compensation to you.
Other than those rights expressly granted to you under this Agreement, Partie and its licensors shall retain all right, title, and interest (including all Intellectual Property Rights) in and to the Partie Platform. You shall not acquire any rights in the Partie Platform by implication, course of conduct, or other means, apart from the express grant of rights provided in this Agreement. The Partie Platform is licensed to you, and not sold.
Restrictions Concerning Partie Web Services.
The Partie Web Services shall be hosted on servers controlled by Partie, and the Partie Web Services shall be accessed only using Partie-approved methods. In using the Partie Web Services, you, at all times, agree to comply with all applicable federal, state, local, and foreign laws and regulations pertaining to the use of the Partie Web Services including laws concerning privacy and Intellectual Property Rights. Without limiting the generality of the foregoing, you shall not, and shall not permit others to: (i) copy, reverse engineer, or download the Partie Web Services or any software in connection therewith without Partie's prior written consent; (ii) take actions that interferes with or disrupts the availability or operation of the Partie Web Services or any networks or servers on which they reside or operate; (iii) allow, by action or omission, anyone other than you to access or use the Partie Web Services by way of your access information; (iv) publish or upload to the Partie Web Services, or cause to be incorporated into or be available on the Partie Web Services, any information or data that (a) infringes upon the rights of any third party, (b) is unlawful, harassing, libelous, defamatory, abusive, threatening, harmful, vulgar, obscene, or objectionable (as determined by Partie), or (c) is false, untrue, libelous, or slanderous; (v) sell, license, or resell, or otherwise permit any third party, access to or use of the Partie Web Services; (vi) use the Partie Web Services in any service bureau or time sharing arrangement for the benefit of a third party or otherwise make the Partie Web Services available as an application service provider for a third party's use; (vii) sell, transfer, publish, disclose, display, copy, or otherwise make available to any third party, or translate or make derivative works of, the Partie Web Services; or (viii) take, or permit any person other than Partie to take, any action to cause the Partie Web Services to interact with any software program or database, or to otherwise make use of any application program interfaces (APIs) within the Partie Web Services.
Restrictions Concerning Partie App.
The Partie App shall be downloadable as mobile or desktop software. In using the Partie App, you, at all times, agree to comply with all applicable federal, state, local, and foreign laws and regulations pertaining to the use of the Partie App including laws concerning privacy and Intellectual Property Rights. Without limiting the generality of the foregoing, you shall not, and shall not permit others to: (i) reverse engineer, decompile, or disassemble the Partie App; (ii) modify or configure the Partie App other than expressly permitted in accordance with the applicable User Documentation; (iii) remove or modify copyright notices, digital watermarks, or other notices of Partie or its licensors that are included in the Partie App; (iv) seek to circumvent or otherwise work-around technical limitations in the Partie App; (v) publish the Partie App, including any application programming interfaces (APIs) included in the Partie App, for others to use or copy; (vi) transfer, sublicense, lease, lend, or otherwise provide the benefit of the Partie App to any person or entity other than you; (vii) publish, or upload, or cause to be incorporated into or be available on the Partie App, any information or data that (a) infringes upon the rights of any third party, (b) is unlawful, harassing, libelous, defamatory, abusive, threatening, harmful, vulgar, obscene, or objectionable (as determined by Partie), or (c) is false, untrue, libelous, or slanderous; or (viii) use the Partie App in any service bureau or time sharing arrangement for the benefit of a third party or otherwise make the Partie App available as an application service provider for a third party's use.
Third Party Software.
The Partie Platform may incorporate, embed, or be bundled with software or components that are owned by third parties (each, a "Partie Licensor"), including software or components that are subject to terms and conditions of "open source" software licenses (collectively, the "Third Party Materials"). Your use of Third Party Materials is governed by the terms and conditions contained in the applicable Partie Licensor's end user license agreement or other applicable agreement, a copy of which will be provided upon your request.
Certain services and features of the Partie Platform are accessible only to our users who have purchased paid subscriptions to such services and features (the "Premium Services"). More information about the perks of enrolling in the Premium Services is available on our website, located at [http://subscription.partie.com]. In consideration of Partie's provision of Premium Services during the applicable subscription term, you shall pay Partie the subscription fees (the "Fees"). Fees are due initially upon your subscription to the Premium Services, and then automatically charged to your credit card on a monthly or annual basis thereafter, based on the billing term you choose, and for so long as you choose to maintain your subscription. Fees are nonrefundable. If you choose to terminate your subscription to the Premium Services, upon the expiration of the then-current subscription term, your access to the applicable Premium Services shall immediately terminate.
All Fees are stated exclusive of taxes. Partie may charge you for, and you shall pay, all taxes, assessments, charges, duties, or levies imposed by any taxing authority relating to the Fees. Applicable taxes include sales, goods and services, use, lease, excise, consumption, stamp duty, value added, and gross receipts taxes. You are not required to pay or reimburse Partie for any of Partie's employment taxes or any taxes imposed on or measured by Partie's net or gross income or property ownership.
You agree that all Fees paid by you are non-refundable, including any Fees for Premium Services or other amounts paid to us.
Availability of Partie Services.
Partie shall, during the Term, using commercially reasonable efforts and commercially reasonable response and resolution times, as applicable, cause the Partie Platform to substantially conform to the User Documentation and be available to you without material interruption, subject to reasonable downtime for maintenance and error correction activities.
Disclaimer of Warranties.
THE PARTIE PLATFORM IS BEING PROVIDED ON AN "AS-IS" AND "AS-AVAILABLE" BASIS. PARTIE HEREBY DISCLAIMS ALL WARRANTIES REGARDING THE PARTIE PLATFORM, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY PARTIE, ITS LICENSORS, DISTRIBUTORS, AGENTS, OR EMPLOYEES WILL CREATE A WARRANTY, AND YOU MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE. PARTIE DOES NOT WARRANT THAT THE PARTIE PLATFORM WILL MEET YOUR REQUIREMENTS, THAT THE PARTIE PLATFORM WILL OPERATE IN COMBINATIONS OTHER THAN AS SPECIFIED IN THE USER DOCUMENTATION, THAT THE OPERATION OF THE PARTIE PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT THE PARTIE PLATFORM WILL PROTECT AGAINST SECURITY THREATS, INTERNET THREATS OR OTHER THREATS OR INTERRUPTIONS.
The term "Confidential Information" means information that Partie provides to, or that the you access from the Partie that meets one of the following two criteria: the information either (i) is identified by a "CONFIDENTIAL" legend or similar legend of Partie, or (ii) is obtained under circumstances such that you knew or reasonably should have known that the information should be treated as confidential to Partie. You shall not access, use, or disclose any of Partie's Confidential Information except as expressly permitted under this Agreement. You shall protect Partie's Confidential Information with the same level of care you use for your own Confidential Information; provided, however, that you shall at a minimum use reasonable care to protect Partie's Confidential Information. Nothing herein shall prevent you from disclosing any Confidential Information as necessary pursuant to any court order, lawful requirement of a governmental agency or when disclosure is required by operation of law (including disclosures pursuant to applicable securities laws and regulations); provided, however, that prior to any such disclosure, you promptly notify Partie in writing of such requirement to disclose and reasonably cooperate with Partie, at Partie's expense, in protecting against or minimizing such disclosure, or in obtaining a protective order.
Indemnification by End User.
You agree to defend Partie from and against any demand, suit, action, or other claim by a third party that is related to or arises from your breach of this Agreement (each, a "User-Related Claim"), and to indemnify Partie for settlement amounts or damages, liabilities, costs, and expenses (including reasonable attorneys' fees) awarded and arising out of any such User-Related Claim.
Indemnification by Partie.
Partie agrees to defend you against any demand, suit, action, or other claim by a third party that the Partie Platform misappropriates or infringes the Intellectual Property Rights of such third party (each, a "Partie-Related Claim"), and to indemnify you for settlement amounts or damages, liabilities, costs and expenses (including reasonable attorneys' fees) awarded and arising out of any such Partie-Related Claim. Partie shall be entitled, at its option, to modify the Partie Platform to resolve such third party infringement claims, provided such modifications do not materially degrade the features or performance of such Partie Platform. If Partie is unable at reasonable effort or expense to make such modifications, then Partie shall be entitled to terminate this Agreement without further liability to you. The foregoing states the entire liability of Partie, and your exclusive remedy, with respect to actual or alleged violation of third party Intellectual Property Rights by the Partie Platform or other performance by or deliverable from Partie under this Agreement.
The indemnifying Party's obligations hereunder are conditioned on (i) the Party seeking indemnification providing prompt written notice thereof and reasonable cooperation, information, and assistance in connection therewith (at the indemnifying Party's expense), and (ii) the indemnifying Party having sole control and authority to defend, settle, or compromise such claim. The indemnified Party may participate in the defense at its sole cost and expense. The indemnifying Party will not enter into any settlement that adversely affects the indemnified Party's rights or interest without its prior written approval, not to be unreasonably withheld. The indemnifying Party shall not be responsible for any settlement it does not approve in writing.
Limitations on Remedies.
Consequential Damages Waiver. NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL PARTIE, NOR ANYONE ELSE WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION, OR DELIVERY OF THE PARTIE PLATFORM, INCLUDING PARTIE'S LICENSORS, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, BUSINESS, GOODWILL, REVENUE, DATA OR USE, INCURRED BY YOU OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF PARTIE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, PARTIE'S LIABILITY FOR DAMAGES AND EXPENSES HEREUNDER OR RELATING HERETO (WHETHER IN AN ACTION IN CONTRACT, TORT OR OTHERWISE OR WHETHER RELATED TO PARTICULAR PRODUCTS OR SERVICES) SHALL IN NO EVENT EXCEED THE AMOUNT OF FEES PAID BY YOU TO PARTIE UNDER THIS AGREEMENT. YOU ACKNOWLEDGE THAT PARTIE'S PRICING REFLECTS THE ALLOCATION OF RISKS, OWNERSHIP OF INTELLECTUAL PROPERTY RIGHTS AND THE LIMITATION OF LIABILITY HEREUNDER.
Term and Termination.
This Agreement shall commence on the Effective Date and continue in full force and effect until terminated in accordance with this Section 13 (Term and Termination) (the "Term"). If either Party is in material breach of any obligation under this Agreement, the non-breaching Party may terminate this Agreement for cause upon written notice after first (i) providing the other Party with written notice of the breach (a "Notice of Breach"), and (ii) providing thereafter a thirty (30) day opportunity to cure beginning on the date of receipt by the alleged breaching Party of the Notice of Breach. You agree that, notwithstanding anything to the contrary, upon termination or expiration of this Agreement for any reason, the rights granted to you in Section 3 (Partie Grant of Rights) shall immediately terminate and you shall immediately stop accessing or otherwise using the Partie Platform.
This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to its conflicts of law provisions.
Dispute Resolution; Binding Arbitration.
All disputes, claims, or controversies arising out of or relating to this Agreement that are not resolved by the Parties' good faith attempt to negotiate a resolution will be submitted to final and binding arbitration before JAMS, or its successor, in Los Angeles, California, USA, pursuant to the United States Arbitration Act, 9 U.S.C. Sec. 1 et seq. The arbitration shall be conducted in accordance with the provisions of JAMS Streamlined Arbitration Rules and Procedures in effect at the time of filing of the demand for arbitration. The Parties shall cooperate with JAMS and each other in selecting a single arbitrator (the "Arbitrator") who shall be a former judge or justice with substantial experiences in resolving business disputes with particular experience in resolving disputes involving software. The costs of arbitration shall be shared equally by the Parties. The provisions of this Section 14.2 (Dispute Resolution; Binding Arbitration) may be enforced by any court of competent jurisdiction. THE ARBITRATOR IS NOT AND SHALL NOT BE EMPOWERED TO AWARD DAMAGES IN EXCESS OF THE COMPENSATORY DAMAGES (INCLUDING REASONABLE ATTORNEYS' FEES AND EXPERT WITNESS FEES) OR IN EXCESS OF THE LIMITATIONS OF LIABILITY AND DAMAGES SET FORTH IN THIS AGREEMENT, AND EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT TO RECOVER SUCH DAMAGES (INCLUDING, WITHOUT LIMITATION, PUNITIVE DAMAGES), IN ANY FORUM. THE ARBITRATOR SHALL BE REQUIRED TO FOLLOW THE APPLICABLE LAW AS SET FORTH IN SECTION 14.1 (GOVERNING LAW) OF THIS AGREEMENT AND FOLLOW THE TERMS OF THIS AGREEMENT. The Arbitrator may award equitable relief in those circumstances where monetary damages would be inadequate, such as a Party's violation of Section 6 (Use Restrictions) or 10 (Confidentiality). Neither Party shall have the right to act as a class representative or participate as a member of a class of claimants with respect to any claim. Either Party may, without waiving any remedy under the Agreement, seek from any court of competent jurisdiction any interim or provisional relief that such Party deems necessary to protect its Confidential Information and Intellectual Property Rights, pending the establishment of the arbitral tribunal (or pending the arbitral tribunal's determination of the merits of the claim).
Partie shall not be responsible to you for any failure or delay in its performance under this Agreement due to Acts of God or other unforeseen circumstances beyond Partie's reasonable control.
If a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision of the Agreement will be amended to achieve as nearly as possible the intent of the Parties, and the remainder of this Agreement will remain in full force and effect. The waiver by either Party of a breach of any provision of this Agreement in one instance shall not operate or be construed as a waiver of any subsequent breach of the same provision or any other provision of this Agreement.
You may not assign this Agreement, in whole or in part, without Partie's prior written consent. Any attempt to assign this Agreement without such consent will be null and void. Partie may assign this Agreement and all rights and obligations hereunder upon written notice to you. Subject to the foregoing, this Agreement will bind and inure to the benefit of each Party's permitted successors and assigns.
In addition to any right or obligation that by its nature or intent is intended to survive any termination or expiration of this Agreement, the following Sections shall survive any termination or expiration of this Agreement: 5 (Ownership); 7 (Fees; Payment); 10 (Confidentiality); 11 (Indemnity); 12 (Limitations on Remedies); and 14 (General Terms).
This Agreement constitutes the entire agreement between the Parties and supersedes all prior or contemporaneous agreements, written or oral, concerning the subject matter of this Agreement. This Agreement may not be modified or amended except in a writing signed by an authorized representative of each Party. If a copy of this Agreement in a language other than English is included with the Partie Platform or User Documentation, it is included for convenience only, and the English language version of this Agreement shall control.