This Agreement is made and entered into by and between Cofactor Ltd. (“Cofactor”), a company incorporated under the laws of New Zealand, and the entity or person agreeing to these terms ("Customer") and governs Customer’s use of the Services provided by Cofactor.
This Agreement is effective as of the date Customer successfully creates an Account and clicks to accept the Agreement (the "Effective Date").
1. Provision of the Services.
1.1 Services Use. Subject to this Agreement, during the Term, Customer may use the Services and integrate the Services into any Application that has material value independent of the Services.
1.2 Console. Cofactor will provide the Services to Customer. As part of receiving the Services, Customer will have access to the Admin Console, through which Customer may administer the Services.
1.3 Request Data. By using the Services, Customer consents to processing and storage of any Request Data.
1.4 Accounts. Customer is responsible for the information it provides to create the Account, the security of the Keys and its passwords for the Account, and for any use of its Account and the Keys. If Customer becomes aware of any unauthorized use of its password, its Account or any of the Keys, Customer will notify Cofactor as promptly as possible.
1.5 New Services. Cofactor may add new services to the "Services" definition from time to time, the use of which may be contingent upon Customer’s agreement to additional terms.
a. To the Services. Cofactor may make commercially reasonable updates to the Services from time to time. If Cofactor makes a material change to the Services, Cofactor will inform Customer.
b. To the Agreement. Cofactor may make changes to this Agreement from time to time. Unless otherwise noted by Cofactor, material changes to the Agreement will become effective 30 days after they are posted, except if the changes apply to new functionality in which case they will be effective immediately. If Customer does not agree to the revised Agreement, please stop using the Services. Cofactor will post any modification to this Agreement to the Terms URL.
1.7 Service Specific Terms. The Service Specific Terms are incorporated by this reference into the Agreement.
2. Payment Terms.
2.1 Billing. All Cofactor Services are provided free of charge.
3. Customer Obligations.
3.1 Compliance. Customer is solely responsible for its Applications and Request Data and for making sure it complies with the AUP. Cofactor reserves the right to review the Request Data for compliance with the AUP. Customer is responsible for ensuring all Customer End Users comply with Customer’s obligations under the AUP, the Service Specific Terms, and the restrictions in Sections 3.2 and 3.3 below.
3.2 Restrictions. Customer will not: (a) create a derivative work of, reverse engineer, decompile, disassemble, or otherwise attempt to extract any or all of the source code of the Services; (b) use the Services for High Risk Activities; (c) sublicense, resell, or distribute any or all of the Services separate from any integrated Application.
3.3 Documentation. Cofactor may provide Documentation for Customer’s use of the Services. The Documentation may specify restrictions on how the Services may be used and Customer will comply with any such restrictions specified.
4. Suspension and Removals.
4.1 Emergency Security Issues. If there is an Emergency Security Issue, Cofactor may automatically suspend the offending Account. If Cofactor suspends an Account, for any reason, without prior notice to Customer, at Customer’s request, Cofactor will provide Customer the reason for the suspension as soon as is reasonably possible.
5. Intellectual Property Rights; Use of Request Data; Feedback.
5.1 Intellectual Property Rights. Except as expressly set forth in this Agreement, this Agreement does not grant either party any rights, implied or otherwise, to the other’s content or any of the other’s intellectual property.
5.2 Use of Request Data. Cofactor will not access or use Request Data, except as necessary to provide the Services to Customer.
5.3 Customer Feedback. If Customer provides Cofactor Feedback about the Services, then Cofactor may use that information without obligation to Customer, and Customer hereby irrevocably assigns to Cofactor all right, title, and interest in that Feedback.
6. Customer is responsible for technical support of its Applications.
7. Deprecation of Services
7.1 Cofactor may, for any reason and at any time without liability to Customer: (a) discontinue any Services or any portion or feature; and (b) make backwards incompatible changes to any of its Services.
8. Term and Termination.
8.1 Agreement Term. The “Term” of this Agreement will begin on the Effective Date and continue until the Agreement is terminated as set forth in Section 8 of this Agreement.
8.2 Termination for Breach. Cofactor may terminate any, all, or any portion of the Services, if Customer is in breach of the Agreement and fails to cure that breach.
8.3 Termination for Convenience. Customer may stop using the Services at any time. Customer may terminate this Agreement for its convenience at any time by removing their Account. Cofactor may terminate this Agreement for its convenience at any time without liability to Customer.
8.4 Effect of Termination. If the Agreement is terminated, the rights granted by one party to the other will immediately cease.
9. Publicity. Customer is permitted to state publicly that it is a customer of the Services. Cofactor may include Customer’s name or Brand Features in a list of Cofactor customers, online or in promotional materials. Cofactor may also verbally reference Customer as a customer of the Services.
10. Representations and Warranties. Each party represents and warrants that: (a) it has full power and authority to enter into the Agreement; and (b) it will comply with all laws and regulations applicable to its use of the Services, as applicable.
11. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COFACTOR AND ITS SUPPLIERS DO NOT MAKE ANY OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND NONINFRINGEMENT. CUSTOMER IS SOLELY RESPONSIBLE FOR SECURING ITS APPLICATION AND REQUEST DATA. NEITHER COFACTOR NOR ITS SUPPLIERS, WARRANTS THAT THE OPERATION OF THE SOFTWARE OR THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED. NEITHER THE SOFTWARE NOR THE SERVICES ARE DESIGNED, MANUFACTURED, OR INTENDED FOR HIGH RISK ACTIVITIES.
12. Limitation of Liability.
12.1 Limitation on Indirect Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY, NOR COFACTOR’S SUPPLIERS, WILL BE LIABLE UNDER THIS AGREEMENT FOR LOST REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY.
12.2 Limitation on Amount of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY, NOR COFACTOR’S SUPPLIERS, MAY BE HELD LIABLE UNDER THIS AGREEMENT FOR MORE THAN THE AMOUNT PAID BY CUSTOMER TO COFACTOR UNDER THIS AGREEMENT DURING THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
13.1 Notices. All notices must be in writing and addressed to the other party’s primary point of contact. The email address for notices being sent to Cofactor is firstname.lastname@example.org.
13.2 Force Majeure. Neither party will be liable for failure or delay in performance to the extent caused by circumstances beyond its reasonable control.
13.3 No Agency. This Agreement does not create any agency, partnership or joint venture between the parties.
13.4 Severability. If any term (or part of a term) of this Agreement is invalid, illegal, or unenforceable, the rest of the Agreement will remain in effect.
13.5 Amendments. Except as set forth in Section 1.6(b), any amendment must be in writing, signed by both parties, and expressly state that it is amending this Agreement.
13.6 Survival. The following Sections will survive expiration or termination of this Agreement: 5, 8.4, 12, and 13.
13.7 Entire Agreement. This Agreement sets out all terms agreed between the parties and supersedes all other agreements between the parties relating to its subject matter. In entering into this Agreement, neither party has relied on, and neither party will have any right or remedy based on, any statement, representation or warranty (whether made negligently or innocently), except those expressly set out in this Agreement.