TERMS OF SERVICE
Last Updated: November 29, 2017
These Terms of Service (these “Terms”) and, if applicable, any form (submitted online or otherwise) evidencing your engagement of our services and executed by FUEL CYCLE, Inc. (“FUEL CYCLE,” “us,” “we,” or “our”) and you (each an “Order” or “Service Agreement”), shall govern your access to and use of our products, software, services, applications, and website (the “Website,” currently located at the following URL: http://www.fuelcycle.com/) (individually and collectively, the “Services”). The term Services shall include, without limitation, all of our information, materials, data, documentation, reports, texts, images, software code, technology, hardware, algorithms, know-how, results, ideas, plans, sketches, files, photos, audio, video, inventions (whether or not patentable), notes, works of authorship, articles, feedback, and other content of any kind or nature made available or accessible, directly or indirectly, through the Services (individually and collectively referred to as the “Content,” which includes, without limitation, the Technology (as defined in Section 4, below)). By accessing or using our Services, you (use of the terms “you,” “your,” “user,” and “users” herein refers to you, the entity you represent, and/or any other person accessing our Services by any means or method on your or your entity’s behalf) acknowledge that you have read, understand, accept, and agree to be bound by these Terms in all respects. If you are entering into these Terms on behalf of an organization or other legal entity, you represent and warrant that you have the authority to bind such entity to these Terms (in which case, “you” or “your” shall refer to such entity). You may not use our Services, or accept these Terms, if: (a) you are not of legal age to form a binding contract with FUEL CYCLE, Inc. (and, in any event, at least 13 years of age); and/or (b) you are prohibited by any applicable law or other agreement from receiving or using the Services.
We may amend, discontinue, suspend, cancel, or terminate any of the Services (in whole or in part), and/or change, add, or remove any of the Services’ features or functionality at any time and from time to time in our sole discretion, subject to the terms hereof. Notwithstanding anything set forth herein to the contrary, we shall not be liable to you in any way in connection with any such changes other than as may be required pursuant to applicable law.
The Services (including without limitation the Content) are protected by all intellectual property rights and related, applicable laws of the United States and foreign countries. For the purposes hereof, “intellectual property rights” means any and all now known or hereafter existing: (i) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (ii) trademark or service mark rights; (iii) trade secret rights; (iv) patents, patent rights, and industrial property rights; (v) layout design rights, design rights, and other proprietary rights of every kind and nature; and (vi) registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world. The Services, and all intellectual property rights contained therein, including, without limitation, our Content (such term which includes any of our proprietary technology, including software, hardware, products, processes, algorithms, user interfaces, know-how, technologies, designs and other tangible or intangible technical material or information made available to you by us in providing the Services (individually and collectively, the “Technology”)), are, and shall remain, our exclusive property (and/or the property of our suppliers and/or third party licensors, as applicable), in whole and in part. Except as expressly set forth herein, no express or implied license or right of any kind is granted to you or any third party regarding the Services (which includes without limitation our Content and our Technology), or any part thereof, including without limitation any right to obtain possession of any source code, data, or other technical material or other information of any kind. All rights not expressly granted to you hereunder are reserved by us. Without limiting the generality of the foregoing, neither these Terms nor any Order grant you any right, title, or interest in the Services (which includes our Content and our Technology), any third-party content or information derived from or contained in the Services (on our Website or elsewhere), and/or any of our (or our third-party licensors’ and suppliers’) intellectual property, other than if and to the extent expressly provided hereunder.
You are granted a revocable, non-exclusive, non-sub-licensable, non-transferable, non-assignable, limited license to access and use the Services solely in accordance with these Terms and any applicable Order.
This Section 7 describes prohibited uses of the Services. If you violate this Section, authorize or help others to do so, and/or fail to report any known instances of violation, we may take immediate action, including, but not limited to, suspending or terminating your use of the Services and holding you in breach hereof and/or the applicable Order. The following is a non-exhaustive list of unacceptable actions:
A. Permitting any party to access and/or use the Services, other than those users authorized under these Terms or elsewhere by us in writing.
B. Renting, leasing, loaning, or selling access to the Services, in whole or in part, to any third party (including without limitation on a time share or service bureau basis).
C. Encouraging, promoting, facilitating, participating in, and/or instructing others to use the Services for any harassing, libelous, invasive of anyone’s privacy, defamatory, obscene, illegal, harmful, incendiary, deceptive, discriminatory, prejudice, offensive, hostile, and/or pornographic use, or to transmit, store, display, distribute, or otherwise make available content that is harassing, libelous, defamatory, illegal, harmful, incendiary, deceptive, discriminatory, prejudice, offensive, hostile, and/or pornographic.
D. Using the Services to violate the security or integrity of any network, computer, or communications system, software application, or other network or computing device of any kind or nature, including without limitation mobile phone technology.
E. Making network connections to any users, hosts, networks, or other persons or entities unless you have first obtained written permission to communicate with them. Any such permitted connections shall, at all times, comply with our anti-spam policies located at https://fuelcycle.com/anti-spam-policy/, as well as these Terms and any other policies which we have posted on our website.
F. Reverse engineering or attempting to hack into, or otherwise discover or access any source code or underlying ideas or algorithms contained in or used with the Services for any reason (including, without limitation, building a competitive product or service; building a product using or copying similar ideas, features, functions, or graphics of the Services; exceeding or attempting to exceed the scope of the access rights granted to you; introducing software, automated agents, or scripts to the Services so as to produce multiple accounts, generate automated searches, requests or queries, or to strip or mine data from the Services; performing or publishing any performance or benchmark tests or analyses relating to the Services or any use thereof; or covering or obscuring any page or part of the Services via HTML/CSS, scripting, or any other means). Tampering with the security of the Services in any way is expressly prohibited.
G. Using the Services other than in compliance with these Terms, the Order, our other policies as posted online, and all applicable federal, state, and local laws (including without limitation anti-stalking and harassing laws, laws protecting minors, financial crimes, anti-spam legislation, and identity theft laws).
H. Modifying and/or altering any element of our Services or any third-party user content (and/or any logo, trademark, or other identifying mark).
I. Uploading Your Content (or any other content) that infringes any intellectual property rights and/or proprietary rights (including without limitation privacy, publicity, and/or confidentiality rights) of any third party.
J. Interfering with, disrupting, altering, translating, or modifying the Services or any part thereof, or creating an undue burden on the Services or the networks or services connected to the Services (including, without limitation, any external websites that contain third party content and are linked to the Services).
K. Submitting to the Services any routine, device, or other undisclosed feature, including without limitation, a so-called time bomb, virus, software lock, drop dead device, malicious logic, worm, Trojan horse, trap, back-door, or software routine that is designed to delete, disable, deactivate, interfere with, or otherwise harm any software, program, data, device, system, or service, and/or which is intended to provide unauthorized access to, or to produce unauthorized modifications to, our Services and/or any user or third-party content at any time.
L. Using any robot, spider, data scraping, or other extraction tool or similar mechanism with respect to the Services.
M. Violating the terms of service (and/or any other applicable policy or agreement) of any Non-FUEL CYCLE Applications (as defined below) which may be used in conjunction with your use of the Services.
N. Exploiting our (or any of our suppliers’ or third party licensors’) trademarks, trade names, logos, or other marks at any time without prior express written permission in each instance.
“Non-FUEL CYCLE Applications” means a web-based or offline software application that is provided by you or a third party and inter-operates with the Services. The manner in which Non-FUEL CYCLE Applications use, store, and/or disclose your information is governed solely by the policies of the third parties operating the Non-FUEL CYCLE Applications. We shall have no liability or responsibility for the privacy practices or other actions or inactions of any Non-FUEL CYCLE Applications (including the actions or inactions of their owners and licensors), and we are not responsible for the accuracy, availability, or reliability of any information, materials, content, goods, services, data, opinions, advice, or statements made available in connection with Non-FUEL CYCLE Applications. We shall not be liable for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Non-FUEL CYCLE Applications no matter the cause. We enable Non-FUEL CYCLE Application features merely as a convenience, and the integration or inclusion of such features does not imply an endorsement or recommendation. Additionally, you may not introduce or use Non-FUEL CYCLE Applications without our prior consent in each instance, and any use by you shall, at all times, be made at your sole risk and expense.
A. Reservation of Rights. Subject to the limited rights expressly granted hereunder, we and our licensors reserve all of our and our licensors’ right, title and interest in and to the Services, including all of our and our licensors’ related intellectual property rights. No rights are granted to you hereunder other than as expressly set forth herein.
B. Cooperation and Assistance. As a condition precedent to our obligations hereunder, you shall provide us with full, good faith cooperation and such information as may be requested by us in order to render the services as required hereunder.
C. License to FUEL CYCLE by You to Host Your User Content. You hereby grant us a worldwide, non-exclusive, royalty-free, fully paid-up, sub-licensable, assignable, irrevocable, limited-term license (i.e., during the term of any applicable Order entered into hereunder, as may be extended, and for a reasonable period thereafter) to host, copy, transmit, and display Your Content (along with your trademarks, service marks, and logos or other marks), solely as necessary for us to provide the Services in accordance with these Terms, comply with any applicable law, and/or exercise the rights set forth in Section 17N, below. Subject to the limited license granted herein and the terms hereof, we acquire no right, title or interest from you or your licensors under these Terms in or to Your Content.
Notwithstanding anything set forth herein to the contrary, you hereby assign to us any suggestions, ideas, enhancement requests, feedback, recommendations, or other information or materials of any kind or nature provided by you to us when using the Services.
Each Order shall commence on the effective date set forth in such Order and shall continue in effect for the initial term and any renewal term as specified therein. If you materially breach any provision of these Terms and/or any Order, we shall have the right to terminate the applicable Order (along with all licenses granted to you therein and herein), but only after we provide you with written notice of any such breach (along with a reasonable cure period, if capable of cure). Notwithstanding the foregoing, you shall not be entitled to a cure period with respect to any breach of Section 7 (Usage Guidelines) as our right to suspend and/or terminate in such instance shall be immediate. Upon expiration or termination of an Order, your access to the Services shall be immediately terminated (including your ability to use any passwords or other login credentials provided). You will not be entitled to any refund of fees already paid when termination is made as a result of your breach, and/or your negligence or misconduct. If you are not in breach of these Terms or any Order, we may still terminate your Order (along with all licenses granted to you therein and herein) for any reason at all in our sole discretion, subject to the following conditions: (i) we will provide you with 30 days’ advance written notice of our desire to so terminate; and (ii) we will refund any unused portion of any fees paid in advance by you in connection with your Order. Furthermore, you may terminate your Order for any reason at all in your sole discretion, subject to your provision of written notice to us of your desire to so terminate. In such instance, you will not be entitled to a refund of any paid but unaccrued fees (unless otherwise specifically set forth to the contrary in the applicable Order).
Any non-public technical, financial, or other business information, trade secrets, Orders, other agreements between you and us, or any other proprietary information provided by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) and designated as confidential or proprietary, or that which should be reasonably understood as confidential given the nature of the information and the circumstances of disclosure (the “Confidential Information”), shall be held in strict confidence by the Receiving Party and not disclosed without the Disclosing Party’s prior written consent in each instance. Neither party shall use any of the other party’s Confidential Information other than to the extent reasonably necessary to carry out the Receiving Party’s obligations or express rights hereunder, except as otherwise authorized by the Disclosing Party in writing in each instance. The Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care). These obligations shall not apply to information that: (i) was previously and rightfully known by the Receiving Party, as demonstrated by documents or files in existence at the time of disclosure; (ii) is generally and freely publicly available through no fault of the Receiving Party and/or any third party; (iii) the Receiving Party otherwise rightfully obtains from third parties without restriction or violation of any applicable law or agreement; or (iv) is independently developed by the Receiving Party without reference to or reliance on the Disclosing Party’s Confidential Information, as demonstrated by documents or files in existence at the time of disclosure. Notwithstanding the foregoing, the Receiving Party may disclose the Confidential Information of the Disclosing Party to the extent required by law to do so, provided that the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s expense, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party and the Disclosing Party is not contesting the disclosure, the Disclosing Party shall reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to any such Confidential Information. If such protective order or other remedy is not obtained, the Receiving Party shall furnish only that portion of the Confidential Information that is legally required, and use commercially reasonable efforts to obtain assurance that confidential treatment shall be accorded to the Confidential Information.
You acknowledge and agree that your use of the Services is dependent upon access to telecommunications and Internet services. You shall be solely responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access, or otherwise use the Services (collectively, the, “Equipment”). You shall also be responsible for maintaining the security of the Equipment, your account, any passwords (including but not limited to administrative and user passwords) and all related files. You shall be responsible for all uses of your account with us and/or the Equipment, irrespective of whether such use is made with or without your knowledge and/or consent. Specifically, when you register with us, we may ask you to provide a unique username and password to enable you to access the Services pursuant to these Terms. We reserve the right to require you to change your username and password in our 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 a third party to use your account, username, or password at any time; and (ii) to notify us promptly of any actual or suspected unauthorized use of the Services, your account, username, or password, or any other breach or suspected breach of these Terms. We reserve the right to terminate any username, password, and/or access to our Services in general if we reasonably believe that they have been accessed by an unauthorized third party or otherwise used in any unauthorized way. We hereby disclaim any and all responsibility for loss, damage, or destruction caused by any Equipment used by you in connection with the Services or otherwise, and/or any loss, cost, damage, claim, injury, or expense caused by any unauthorized use of your username or password.
A. We warrant to you that the Services will be performed in a workmanlike manner and in accordance with generally accepted industry standards. If you report to us any non-compliance with the foregoing warranty, and, if applicable, provide to us such detailed information as we may reasonably require to permit us to cure such non-conformity, then we, at our expense and in our sole good faith discretion, shall use commercially reasonable efforts to correct any such non-conformity. In no event shall we be liable for the procurement costs of substitute products or services, however. The foregoing states our sole obligation, and your exclusive remedy, in the event of our breach of this warranty.
B. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 13(A) ABOVE, THE SERVICES ARE PROVIDED “AS IS,” AND WE EXPRESSLY DISCLAIM ALL WARRANTIES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WHETHER EXPRESS, IMPLIED, OR STATUTORY, AS TO ANY ASPECT OF THE SERVICES, OR ANY OTHER ASPECT OF THESE TERMS OR ANY ORDER, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND/OR NON-INFRINGEMENT, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. WE DO NOT WARRANT THAT THE SERVICES (AND/OR THE INTERNET OR ANY EQUIPMENT YOU MAY USE TO ACCESS THE SERVICES) WILL MEET ALL OF YOUR REQUIREMENTS OR THAT ITS ACCESSIBILITY OR OPERATION WILL BE UNINTERRUPTED, SECURE, OR ERROR-FREE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TO THE EXTENT PERMITTED BY APPLICABLE LAW, WE WILL NOT BE RESPONSIBLE OR HAVE ANY LIABILITY TO YOU IN CONNECTION WITH YOUR USE OF THE SERVICES, INCLUDING WITHOUT LIMITATION ANY OF YOUR POLICIES (INCLUDING PRIVACY POLICIES), POSTS, COMMUNICATIONS OR AGREEMENTS WITH ANY THIRD PARTY (INCLUDING OTHER SERVICE USERS OR COMMUNITY MEMBERS) AND/OR ANY SWEEPSTAKES, PRIZE GIVEAWAYS, CONTESTS, OR SIMILAR ACTIVITIES PROMULGATED, DISSEMINATED, OR ADVERTISED ON THE SERVICES BY ANY PARTY. YOU ACKNOWLEDGE AND AGREE THAT ACCESS TO YOUR CONTENT AND INFORMATION (I.E., AS STORED IN OUR DATABASE) IS NOT GUARANTEED, AND AS SUCH, YOU AGREE THAT YOU WILL EMPLOY APPROPRIATE BACK-UP PROCEDURES AT ALL TIMES IN CONNECTION WITH ANY SUCH DATA OR INFORMATION IN ORDER TO PROTECT YOUR CONTENT FROM LOSS, DAMAGE, OR DESTRUCTION THERETO FOR ANY REASON. TO THE EXTENT THAT ANY LIMITATION SET FORTH HEREIN IS NOT PERMITTED BY ANY APPLICABLE LAW, RULE, OR REGULATION, IT SHALL BE AMENDED BUT ONLY TO THE EXTENT NECESSARY TO COMPLY WITH ANY SUCH LAW.
SUBJECT TO ALL APPLICABLE LAWS, WE (ALONG WITH OUR AFFILIATES, SUPPLIERS, AGENTS, EMPLOYEES, USERS, ASSIGNS, AND/OR LICENSORS) SHALL NOT BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, OR PUNITIVE DAMAGES AND/OR LOST PROFITS, INCLUDING ANY SUCH DAMAGES OR COSTS DUE TO LOSS OF DATA, USE, GOODWILL, PERSONAL OR PROPERTY DAMAGE, ARISING IN ANY WAY FROM OUR PROVISION OF THE SERVICES, THESE TERMS, AND/OR ANY ORDER, EVEN IF WE WERE PROVIDED WITH ADVANCE NOTICE OF SUCH POSSIBLE DAMAGES. IN ADDITION, OUR AGGREGATE LIABILITY FOR ANY AND ALL DAMAGES, LOSSES, INJURIES, OR CLAIMS OF ANY NATURE ARISING OUT OF THESE TERMS WILL NOT EXCEED THE FEES ACTUALLY PAID TO US BY YOU UNDER THESE TERMS DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THESE TERMS WILL NOT INCREASE OUR AGGREGATE LIABILITY HEREUNDER. ANY CLAIM MADE HEREUNDER MUST BE MADE WITHIN 12 MONTHS OF THE INCIDENT TO WHICH IT RELATES OR FOREVER BE BARRED. THE PARTIES ACKNOWLEDGE AND AGREE THAT THESE TERMS AND ANY APPLICABLE ORDER(S) HAVE BEEN ENTERED INTO IN RELIANCE UPON THESE LIMITATIONS AND THAT THEY FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN US. CERTAIN STATES AND/OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL, CONSEQUENTIAL, OR CERTAIN OTHER TYPES OF DAMAGES, SO THE EXCLUSIONS SET FORTH ABOVE MAY NOT APPLY TO YOU.
A. Indemnification by Us. Subject to your indemnification of us, and provided that you are not in breach or default hereof, we shall, at our sole cost and expense, defend, indemnify, save, and hold harmless you (along with your officers, directors, agents, and employees) from and against any and all damages, losses, liabilities, costs or expenses, including reasonable outside attorneys’ fees (collectively, “Losses”), actually incurred by you, but only to the extent resulting directly from third-party claims, demands, suits, or proceedings (collectively, “Claims”) to the extent arising directly out of: (i) our material, uncured breach of any of our representations, warranties, or covenants as set forth in these Terms; (ii) our gross negligence or willful misconduct; and/or (iii) our violation of any third party’s valid U.S. registered copyright solely in connection with our development of the Services, but only if and to the extent that the Services are used exactly as authorized hereunder at all times and without modification thereto (for clarification and without limitation on the foregoing, we are not providing an indemnification with respect to Your Content and/or any third-party content, including other users of the Services).
B. Indemnification by You. You shall, at your sole cost and expense, defend, indemnify, save, and hold harmless us (along with our officers, subsidiaries, parent, directors, agents, affiliates, assigns, and employees) from and against any and all Losses resulting from any Claims arising out of or relating to: (i) your breach of any representations, warranties, or covenants set forth in these Terms, any Order, or otherwise made by you concerning any aspect of the Services; (ii) Your Content; (iii) the infringement of any third-party rights by you (including without limitation intellectual property and/or other proprietary rights); (iv) your acts or omissions in connection with your use and/or management of the Services (including, but not limited to, violations of your obligations of privacy with respect to any Authorized Participant); and/or (v) your negligence, willful misconduct, or violation of any applicable law, rule, or regulation.
C. Requirements. Any party seeking indemnification under these Terms shall: (i) promptly notify the indemnifying party in writing regarding any facts that may give rise to a claim for indemnification under these Terms (provided that any delay in notification shall not relieve the indemnifying party of its obligations hereunder except to the extent that the indemnifying party is actually materially prejudiced by such delay); (ii) provide the indemnifying party with reasonable information, assistance, and cooperation in defending the lawsuit or proceeding (at the indemnifying party’s expense, to the extent of any out-of-pocket expenses); and (iii) give the indemnifying party full control and sole authority over the defense and settlement of such claim, subject to the indemnified party’s right to approve any such settlement, which approval shall not be unreasonably withheld, conditioned, or delayed.
The Services are controlled and offered by FUEL CYCLE from its facilities in the United States, and the servers and data centers used by FUEL CYCLE are located in the United States. If you choose to access and use the Services from outside the United States, you acknowledge and agree that you are transferring Your Content (as well as other content) across United States lines (i.e., internationally) for storage and processing, and that you are, therefore, responsible for compliance with all applicable local (non-US) laws respecting any such transfer, storage, and processing, as well as all U.S. laws applicable to your actions (including without limitation any export laws).
A. Equitable Relief. The parties hereto acknowledge and agree as follows: (i) the covenants contained in these Terms are reasonable and necessary to protect the legitimate interests of the parties; (ii) the parties would not have agreed to these Terms in the absence of such covenants; and (iii) any violation or threatened violation of any such covenants would cause irreparable harm for which monetary damages would not be adequate. Therefore, the parties agree that, in the event of a breach of these Terms by one party, the non-breaching party shall be entitled to seek equitable relief (without the obligation of posting a bond) in addition to whatever other remedies it may have in law or in equity.
B. Entire Agreement; Amendments. These Terms, together with all Orders, constitute the entire agreement between the parties, and supersede all prior agreements or representations, whether oral or written, regarding the subject matter hereof. These Terms may be amended by us at any time in our sole discretion. If we make any material changes, we agree to notify you by sending to you an e-mail to the last e-mail address you have provided us with and/or by posting notice of the changes on the Website. Any material changes to these Terms will be effective thirty (30) calendar days following: (i) our dispatch of the e-mail notice to you; or (ii) our posting of notice of the changes on our Website, as applicable. These changes will be effective immediately for new users of our Services and/or any new Orders. We may require you to provide consent to the updated Terms in a specified manner before your further use of the Services is permitted. Otherwise, your continued use of the Website or the Services constitutes your acceptance of the changes. It shall be your responsibility to regularly check the Website to view the most current version of these Terms.
C. Waiver, Severability & Assignment. Our failure to enforce any provision hereof shall not be deemed a waiver of our right to later make any such enforcement. If any provision hereof is found by a court to be unenforceable, the remaining provisions of these Terms will remain in full force and effect, and an enforceable term will be substituted in place of any non-enforceable term in order to reflect our intent as closely as possible. You may not, at any time, assign any of your rights or responsibilities under these Terms, in whole or in part, without our prior written consent in each instance; provided, however, that you may assign these Terms in connection with a merger, acquisition, reorganization, or sale of all, or substantially all, of your assets and liabilities to a third party that assumes any and all such assets and liabilities in writing. Any such attempted assignment in violation hereof shall be null and void. We may assign our rights and/or responsibilities hereunder to any of our affiliates or subsidiaries, and/or to any third party that assumes such rights and/or responsibilities in writing. These Terms shall be binding upon the parties and their respective successors and permitted assigns.
D. Relationship. The relationship of the parties established by these Terms is that of independent contractors, and nothing contained in these Terms shall create or be construed to create any partnership, joint venture, agency, franchise, or sales representative, employment or fiduciary relationship between the parties or any of its respective agents or employees. As such, you may not represent to any third party that you have the authority to act on our behalf, and you may not make any agreement, express or implied, that would bind us and/or any of our affiliates to any obligation of any kind.
E. Choice of Law; Venue; Attorneys’ Fees. Terms shall be governed by and construed in accordance with the laws of the State of California, without giving effect to any contrary choice of law rules. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. Any action or proceeding brought by either party hereunder shall be brought exclusively in a state or federal court located in Los Angeles County, California. Each party consents to the exclusive jurisdiction of such courts (and the appropriate appellate courts) in any such action or proceeding, and waives any objection to venue laid therein. If any legal action, including, without limitation, an action for arbitration or equitable relief, is brought by one party against the other party hereunder, the prevailing party in any final judgment or arbitration award shall be entitled to reimbursement from the other party for the full amount of all of the prevailing party’s reasonable expenses, including all reasonable court costs, arbitration fees, and actual outside attorneys’ fees paid or incurred in good faith by the prevailing party. You and we agree that any dispute resolution proceedings will be conducted only on an individual basis and never in a class, consolidated, or representative action of any kind or nature. You and we each waive any right to a jury trial. 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 your use of the Services hereunder.
F. Notices. All notices, permissions, waivers, approvals, and other communications provided under these Terms and/or any Order shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing; (iii) receipt of confirmation that a facsimile was received; or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim unless a confirmation of receipt is sent by the receiving party). Billing-related notices to you shall be addressed to the relevant billing contact designated by you. All notices to you shall be addressed to your Chief Legal Officer, General Counsel, or other designated point of contact (as specified by you in writing to us) at the contact information set forth in the relevant Order. All notices sent to us shall be addressed to: FUEL CYCLE, Inc. 12100 Wilshire Blvd., Suite 1950, Los Angeles, CA 90025 USA, Attention: Legal Department (and/or delivered to whatever other contact information we provide you with for communication).
G. Export Regulations. You must comply at all times with all applicable export, re-export, and transfer restrictions and regulations as promulgated by the Department of Commerce and any other applicable United States or foreign agency.
H. Force Majeure. Except for your obligations to pay us pursuant to each applicable Order or otherwise, neither party shall be liable to the other party for any failure or delay in performance caused by reasons beyond its reasonable control (including without limitation failures or delays caused by: labor disputes, shortage of materials, fire, earthquake, flood, terrorist attack, war, and/or supplier delay or non-delivery). Notwithstanding the foregoing, the party whose performance has been interrupted or prevented by any event of force majeure shall give prompt notice to the other party informing such other party of this situation.
I. Headings. The captions and section and paragraph headings used in these Terms are inserted for convenience only and shall not affect the meaning or interpretation of these Terms.
J. Survival. The terms hereof that are intended by their very nature to survive any expiration or termination of any Order or other termination of your use of, or your right to use, the Services (including without limitation those terms respecting confidentiality, ownership, indemnification, representations & warranties, termination, disclaimers, limitation of liability, and governing law), shall so survive. .
K. No Third-Party Beneficiaries. The parties hereto acknowledge and agree that these Terms 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 upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these terms. Notwithstanding the foregoing, FUEL CYCLE’s users, directors, officers, subsidiaries, parent company, employees, affiliates, representatives, and agents shall be entitled to enforce the indemnification provisions set forth herein as third party beneficiaries thereto.
L. Third Party Links. Our Website may contain links to other websites operated by third parties. Such third-party web sites are not under our control. We are not responsible for the content of any third-party website or any link contained in a third-party website. We provide these links only as a convenience and do not review, approve, monitor, endorse, warrant, or make any representations with respect to third-party websites and/or any such links.
M. User Disputes and Release. Your interactions with other users found on or through the Services are solely between you and such other users. If there is a dispute between you and any third party (including, without limitation, any user of our Services), we are under no obligation to become involved; however, we reserve the right, but have no obligation, to monitor disputes between you and any such other users of our Services. Furthermore, you hereby release and forever discharge us (and our officers, employees, agents, affiliates, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or relates directly or indirectly to, any interactions with, or act or omission of, other users of our Services. If you are a California resident, you hereby waive California Civil Code Section 1542 in connection with the foregoing, which states: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.”
N. Use of Name and Logo. You hereby grant us (and our affiliates and assigns) the right to use your name and/or logo (or other identifying marks) in order to identify you as a customer of ours in materials promoting the Services, online or elsewhere. You may request that we cease further use of your name and logo in newly created materials at any time by submitting a written request to us. We will use commercially reasonable efforts to honor such request within thirty (30) calendar days after our receipt of such request.