9G BACKUP™ END USER LICENSE AGREEMENT
THIS 9G BACKUP™ END USER LICENSE AGREEMENT (“EULA”)
REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS
TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMITS THE
REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
PLEASE READ THIS EULA CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION
BEFORE CLICKING THE “ACCEPT” BUTTON OR DOWNLOADING OR USING THE 9G BACKUP™
SOFTWARE (“Software”) ACCOMPANYING THIS
EULA AND RELATED SERVICES (together with Software, the “Cogitate
Services”). BY CLICKING THE “ACCEPT” BUTTON OR DOWNLOADING OR USING THE
SOFTWARE, YOU ARE ENTERING INTO AND AGREEING TO BE BOUND BY THE TERMS OF THIS EULA
AND THE TERMS AND CONDITIONS OF THE:
• 9G BACKUP™ Account Registration Form;
• Cogitate Privacy Statement located at
privacy.aspx
• 9G BACKUP™ Website Terms of Use located at
webterms.aspx
• Cogitate Pricing Policy located at
paymentpolicy.aspx
• Cogitate Business Associate Agreement located at
hipaa-baa.aspx, to the extent that You indicated on the 9G BACKUP™ Account
Registration Form that You are subject to the requirements set forth in Health Insurance
Portability and Accountability Act of 1996 (“HIPAA”) or (2) provided a written notification,
consistent with the terms hereof, to Cogitate explicitly stating that You are subject
to HIPAA,
(collectively, the “Underlying Agreements”) AND
INCORPORATED HEREIN BY THIS REFERENCE.
AS DESCRIBED BELOW, CLICKING THE “ACCEPT” BUTTON OR DOWNLOADING OR USING THE
SOFTWARE ALSO OPERATES AS YOUR CONSENT TO AUTOMATIC UPDATES
OF THIS SOFTWARE WITHOUT FURTHER NOTICE TO YOU.
IF YOU COMPLY WITH THIS EULA, YOU HAVE THE RIGHTS BELOW FOR EACH LICENSE YOU
ACQUIRE.
1. GENERAL. The terms “Cogitate,”
“Our” or “Us” refer to Cogitate Inc., a Michigan corporation, and its subsidiaries
and affiliates. The terms “You” or “Your” refer to an individual or entity that
is using Cogitate Services (each individually, as a “Party”
and, collectively, as the “Parties”).
2. ACCOUNT REGISTRATION AND MAINTENANCE.
2.1. To use the Cogitate
Services, You must register for an account at 9gbackup.com (“Account”)
by completing the account registration form presented to You on the “sign up” page
(“Account Registration”). You must have a valid electronic
mail (“E-Mail”) address to have an account with Us. COGITATE’S PRIMARY MODE
OF COMMUNICATION WITH YOU IS THROUGH E-MAIL. You are solely responsible
for maintaining accurate, complete and current contact information. If an E-mail
sent to You is returned, Cogitate may suspend Your account until You provide Us
with a current E-mail address.
2.2. You are solely responsible
for maintaining the confidentiality of Your user name and password. We shall assume
that every login for the Cogitate Services using Your username and password is You.
You shall be solely liable for any and all actions and activities that occur under
Your username and password. If You are a business entity, whether profit or non-profit
(“Business Entity”), You shall be solely liable for
any and all actions committed by anyone to whom You granted permission to use the
Services on Your behalf.
3. DATA OWNERSHIP. The credit card
holder associated with the Account Registration is the owner of the data (“Data”) stored on the Cogitate Services. For Evaluation
Versions, as defined below, of the Software, a credit card may not be required.
If there is no credit card associated with the Account Registration, Your email
address and correct answers to the security questions shall identify You as the
owner of the Data. If Your Account Registration identifies a Business Entity, such
Business Entity is the owner of the Data.
4. LICENSE AND RESTRICTIONS.
4.1. Subscription
Based License. Subject to the terms of this EULA, Cogitate hereby grants
You and You hereby accept a limited, non-exclusive, non-sublicensable, non-transferable,
revocable license (the “License”) to use the Cogitate
Services and any related documentation for (i) internal business purposes if You
are a Business Entity, or (ii) for personal uses if You are an individual and solely
by the individual identified on the Account Registration. Business entities, whether
profit or non-profit, may assign multiple administrators to access, control, manage
and use the Business Entity’s account on behalf of such Business Entity. The Cogitate
Services shall be used solely in connection with the backup of Your Data.
4.2. Trial
and Evaluation Licenses. Cogitate may give You the opportunity to evaluate
the Cogitate Services prior to paying a License Fee, by providing You an option
to license a trial, evaluation, or other limited version of the Software (an “Evaluation Version”). For the Evaluation Version, Cogitate
hereby grants you and You hereby accept a limited, non-exclusive, non-sublicenseable,
non-transferable, revocable license (the “Evaluation License”).
Your Evaluation License shall automatically terminate upon the earlier of (i) the
expiration or cancellation of the evaluation period, (ii) when the Cogitate Service
is no longer made available, (iii) when Cogitate cancels Your Evaluation License,
or (iv) when Your computer has not accessed the Cogitate server for more than fifteen
(15) calendar days. You acknowledge and agree that Cogitate shall automatically
delete any Data stored upon termination of Your Evaluation License for any reason.
4.3. Archival
Copies. You may make one (1) copy of the Software and any related documentation
for backup or archival purposes. You must reproduce the copyright and all other
proprietary notices displayed on the Software and related documentation on such
backup or archival copy.
4.4. Restricted
Uses. You shall use the Software strictly in accordance with the terms
of this EULA and shall not: (a) decompile, reverse engineer, disassemble, attempt
to derive the source code of, or decrypt the Software; (b) make any modification,
adaptation, improvement, enhancement, translation or derivative work from the Software;
(c) violate any applicable laws, rules or regulations in connection with Your access
or use of the Software; (d) remove, alter or obscure any proprietary notice (including
any notice of copyright or trademark) of Cogitate or its affiliates, partners, suppliers
or the licensors of the Software; (e) use the Software for any revenue generating
endeavor, commercial enterprise, or other purpose for which it is not designed or
intended; (f) make the Software available over a network or other environment permitting
access or use by multiple users at the same time, provided, however, that
Business Entity users may assign multiple administrators; (g) use the Software for
creating a product, service or software that is, directly or indirectly, competitive
with or in any way a substitute for any services, product or software offered by
Cogitate; (h) use any proprietary information or interfaces of Cogitate, its affiliates,
or its suppliers or other intellectual property of Cogitate, its affiliates or its
suppliers in the design, development, manufacture, licensing or distribution of
any applications, accessories or devices for use with the Software; or (i) store,
backup, or distribute child pornography or other files or data including but not
limited to copyrighted works, that may be prohibited by applicable laws, rules and
regulations.
4.5. Reservation
of Rights. Except as provided in Section 4.1, Cogitate retains all right,
title and interest in the Software, Services and any related documentation and nothing
contained herein shall be construed as the relinquishment on the part of Cogitate
of any of Cogitate’s ownership interest in the Software, Services and any related
documentation.
5. LICENSE FEE AND AUTO RENEWAL.
5.1. License
Fee. In consideration of the rights and License granted under this EULA,
You shall pay Cogitate a license fee (“License Fee”)
as provide in Cogitate’s Pricing Policy, located at www.9gbackup.com\pricing-policy.aspx.
From time to time, Cogitate may increase its License Fees. Cogitate shall use commercially
reasonable efforts to give You three (3) months prior written notice of any License
Fee increases. From time to time, Cogitate may need to update License Fees due to
changes in laws and the general commercial environment and, under such circumstances,
Cogitate shall give You notice as soon as commercially reasonable.
5.2. Auto
Renewal. Cogitate’s Services are subscription based. You may pre-pay
as specified in Cogitate’s Pricing Policy. The default billing option for each Account
is automated billing. You agree that Cogitate shall automatically bill the credit
card associated with Your Account in accordance with Cogitate’s Pricing Policy at
the then-current renewal fee for Your Account when Your Account is due.
5.3. Removing Your Account
from Auto Billing. You may remove Your Account from Auto Billing at any time. You
may do this by selecting the appropriate settings in Your Account preferences or
notifying Cogitate that You want Your Account removed from Auto Billing. Such notification
must be sent from the E-mail address associated with the Account.
6. SELECTION OF THE APPROPRIATE COGITATE PRODUCT.
Cogitate Services are designed to serve the needs of various types of users, and
certain Cogitate Services are designed solely for individual use, while others are
designed for use by Business Entities, as determined solely by Cogitate and communicated
via Cogitate’s website and marketing materials. If You are using a Cogitate Product
for business or network purposes, or to backup server data, You must use the appropriate
Cogitate Service. Cogitate may terminate or suspend Your Account to the Cogitate
Services if You are using a Cogitate Service that is inappropriate for Your usage.
7. INTELLECTUAL PROPERTY RIGHTS.
7.1. Rights
to Cogitate Services. You acknowledge and agree that the Cogitate Services
and all copyrights, patents, trademarks, trade secrets and other intellectual property
rights associated therewith are, and shall remain, the property of Cogitate, its
affiliates, partners, suppliers or licensors. Furthermore, You acknowledge and agree
that the source and object code of the Software and the format, directories, queries,
algorithms, structure and organization of the Software are the intellectual property
and proprietary and confidential information of Cogitate and its affiliates, its
partners, licensors and suppliers. Except as expressly provided in this EULA, You
are not granted any intellectual property rights in or to the Cogitate Services
by implication, estoppel or other legal theory, and all rights in and to the Cogitate
Services not expressly granted in this EULA are hereby reserved and retained by
Cogitate, its affiliates, partners, suppliers or licensors.
7.2. Third Party Software.
The Software may use or include third party software that is subject to open source
and third party license terms (“Third Party Software”).
You acknowledge and agree that Your right to use such Third Party Software as part
of the Software is subject to and governed by the terms and conditions of the open
source or third party license applicable to such Third Party Software, including,
without limitation, any applicable acknowledgements, license terms and disclaimers
contained therein. In the event of a conflict between the terms of this EULA or
the Underlying Agreements and the terms of such open source or third party licenses,
the terms of the open source or third party licenses shall control with regard to
Your use of the relevant Third Party Software. In no event, shall the Software or
components thereof be deemed to be “open source” or “publically available” software.
The third party terms and conditions applicable to the third party components of
this Software may be found at: 9g-backup-eula.aspx. BY ACCEPTING THIS EULA,
YOU ACKNOWLEDGE THAT YOU HAVE REVIEWED AND AGREE TO THESE THIRD PARTY TERMS AND
CONDITIONS.
8. ENHANCEMENTS AND FEEDBACK.
8.1. Enhancements.
Cogitate may at any time and from time-to-time in its sole discretion (i) automatically
update the Software installed on Your computer without Your prior notice, (ii) upgrade,
enhance, change and modify the Software (collectively, with (i) the “Enhancements”),
or (iii) discontinue or retire the Cogitate Services or any aspect or feature of
the Cogitate Services, including but not limited to file extension support or device
support. All Enhancements are subject to this EULA. Cogitate shall use commercially
reasonable efforts to provide prior notice of material changes to the Cogitate Services.
8.2. Feedback.
You may provide feedback to Cogitate with respect to the Cogitate Services. You
understand and agree that Cogitate may use Your feedback for any purpose without
obligation to You of any kind. If You provide Feedback, You hereby grant Cogitate
and its affiliates an unrestricted, nonexclusive, royalty-free, perpetual, irrevocable
and fully sublicensable right to use, reproduce, modify, adapt, publish, translate,
create derivative works from, distribute and display such material throughout the
world in any media. You further agree that Cogitate is free to use without limitation
and without any compensation to You any ideas, concepts, or know-how that You or
individuals acting on Your behalf provide to Cogitate. You grant us the right to
use the name you submit in connection with such material. Cogitate retains any and
all rights granted in this EULA in and to any Feedback after termination.
8.3. Beta
Applications. From time to time Cogitate may designate certain Enhancements
and new releases of the Software as “Beta Software.”
Beta Software is not ready and is not intended for use in a production environment.
Operation of the Beta Software may be unpredictable and lead to erroneous results.
You acknowledge and agree that (i) the Beta Software is experimental in nature and
has not been fully tested, (ii) the Beta Software may not meet Your requirements
or perform as intended, (iii) use of the Beta Software may not be uninterrupted,
error free, or free of faults, (iv) Beta Software may contain bugs, faults or errors
that may cause damage to Your systems or processes and You agree to use the Beta
Software at Your own risk; (v) Your use of the Beta Software is for the sole purpose
of evaluating and testing the product and providing feedback to Cogitate, and (vi)
You shall inform your employees, staff members and other users regarding the nature
of the Beta Software. Your use of the Beta Software is subject to the terms of this
EULA.
9. TERM AND TERMINATION.
9.1. Term.
This EULA and the License or Evaluation License granted to You hereunder shall commence
at the time and on the day You click the “I AGREE” button or install, access, or
use the Cogitate Services, whichever is earlier.
9.2. Termination.
This EULA and the License or Evaluation License granted to You hereunder shall automatically
terminate or expire upon the earlier of (i) non-payment of a License Fee, cancellation
of Your Account, or expiration of Your subscription, (ii) Cogitate’s discontinuance
of the Cogitate Services, or (iii) Your failure to comply with this EULA or the
Underlying Agreements. If any party claims that You have infringed their intellectual
property in any manner, Cogitate may immediately terminate Your Account without
prior notice to You. COGITATE MAY, IN ITS SOLE AND ABSOLUTE DISCRETION, DENY
USE OF AND ACCESS TO ALL OR ANY PORTION OF THE COGITATE SERVICES, INCLUDING SUSPENDING
OR TERMINATING YOUR LICENSE, AN EVALUATION LICENSE, AND YOUR ACCOUNT IF COGITATE
DETERMINES THAT YOU ARE USING THE COGITATE SERVICES IN A MANNER INCONSISTENT WITH
THIS EULA, THE UNDERLYING AGREEMENTS OR IN VIOLATION OF LAW. Upon the
termination of this License or an Evaluation License, You shall cease all use of
the Cogitate Services and uninstall the Software.
9.3. Effect
of Non-Payment or Termination. Upon any non-payment, termination, or
expiration of Your Account (i) the License granted to You herein will automatically
and immediately terminate and You shall have no further right to possess the Software
or otherwise use the Cogitate Services, (ii) the Software may be disabled by Cogitate
without prior notice to You, and (iii) Your Account access shall be disabled. You
hereby acknowledge and agree that Cogitate shall automatically delete all of Your
Data upon termination of Your Account consistent with this Section 9.
10. DISCLAIMER OF WARRANTIES.
YOU ACKNOWLEDGE AND AGREE THAT THE SOFTWARE, BETA SOFTWARE AND THIRD PARTY SOFTWARE
IS PROVIDED ON AN “AS IS,” “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS, AND THAT
YOUR USE OF OR RELIANCE UPON THE COGITATE SERVICES, THE BETA SOFTWARE AND ANY THIRD
PARTY SOFTWARE ACCESSED THEREBY IS AT YOUR SOLE RISK AND DISCRETION. COGITATE AND
ITS AFFILIATES, PARTNERS, SUPPLIERS AND LICENSORS HEREBY DISCLAIM ANY AND ALL REPRESENTATIONS,
WARRANTIES AND GUARANTIES REGARDING THE COGITATE SERVICES, THE BETA SOFTWARE AND
THIRD PARTY SOFTWARE, WHETHER EXPRESS, IMPLIED OR STATUTORY, AND INCLUDING, WITHOUT
LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, AND NON-INFRINGEMENT. FURTHERMORE, COGITATE AND ITS AFFILIATES, PARTNERS,
SUPPLIERS AND LICENSORS MAKE NO WARRANTY THAT (I) THE COGITATE SERVICES, THE BETA
SOFTWARE OR THIRD PARTY SOFTWARE WILL MEET YOUR REQUIREMENTS; (II) THE COGITATE
SERVICES, THE BETA SOFTWARE OR THIRD PARTY SOFTWARE WILL BE UNINTERRUPTED, ACCURATE,
RELIABLE, TIMELY, SECURE OR ERROR-FREE; (III) THE QUALITY OF ANY PRODUCTS, SERVICES,
INFORMATION OR OTHER MATERIAL ACCESSED OR OBTAINED BY YOU THROUGH THE COGITATE SERVICES,
THE BETA SOFTWARE OR THIRD PARTY SOFTWARE WILL BE AS REPRESENTED OR MEET YOUR EXPECTATIONS;
(IV) ANY ERRORS IN THE SOFTWARE, THE BETA SOFTWARE OR THIRD PARTY SOFTWARE WILL
BE CORRECTED; OR (V) THAT ENCRYPTION ALGORITHMS, ASSOCIATED KEYS AND OTHER SECURITY
MEASURES WILL BE SECURE OR EFFECTIVE. YOU UNDERSTAND AND AGREE THAT YOUR INSTALLATION,
USE AND ACCESS OF THE COGITATE SERVICES, BETA SOFTWARE AND THIRD PARTY COMPONENTS
IS AT YOUR SOLE DISCRETION AND RISK AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY
DAMAGES TO YOUR COMPUTER, SOFTWARE AND THE LOSS OF DATA THAT RESULTS FROM ANY USE
THEREOF.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM COGITATE
SHALL CREATE ANY REPRESENTATION, WARRANTY OR GUARANTY. FURTHERMORE, YOU ACKNOWLEDGE
THAT COGITATE HAS NO OBLIGATION TO CORRECT ANY ERRORS OR OTHERWISE SUPPORT OR MAINTAIN
THE COGITATE SERVICES.
THE COGITATE SERVICES ARE USED TO ACCESS AND TRANSFER INFORMATION OVER THE INTERNET.
YOU HEREBY AGREE AND ACKNOWLEDGE THAT COGITATE DOES NOT OPERATE OR CONTROL THE INTERNET
AND THAT (I) VIRUSES, WORMS, TROJAN HORSES, AND OTHER UNDESIRABLE DATA, OR SOFTWARE,
OR (II) UNAUTHORIZED USERS MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE YOUR DATA,
WEB SITES, COMPUTERS, OR NETWORKS. YOU ARE SOLELY RESPONSIBLE FOR THE SECURITY AND
INTEGRITY OF YOUR DATA AND SYSTEMS.
In certain jurisdictions, the law may not permit the disclaimer of warranties, so
the above disclaimer may not apply to You.
11. LIMITATION OF LIABILITY.
UNDER NO CIRCUMSTANCES SHALL COGITATE OR ITS AFFILIATES, PARTNERS, SUPPLIERS
OR LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY
DAMAGES ARISING OUT OF OR IN CONNECTION WITH YOUR ACCESS OR USE OF OR INABILITY
TO ACCESS OR USE THE COGITATE SERVICES, THE BETA SOFTWARE OR ANY THIRD PARTY SOFTWARE,
WHETHER OR NOT THE DAMAGES WERE FORESEEABLE AND WHETHER OR NOT COGITATE WAS ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING,
COGITATE’S AGGREGATE LIABILITY TO YOU (WHETHER UNDER CONTRACT, TORT, STATUTE OR
OTHERWISE) SHALL NOT EXCEED THE AGGREGATE LICENSE FEES PAID BY YOU TO COGITATE IN
THE TWELVE (12) CALENDAR MONTHS PRECEDING THE ALLEGED DAMAGES. IF THE COGITATE PRODUCTS
ARE PROVIDED TO YOU WITHOUT CHARGE, THEN COGITATE SHALL HAVE NO LIABILITY TO YOU
WHATSOEVER. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY
FAILS OF ITS ESSENTIAL PURPOSE. YOU EXPRESSLY RECOGNIZE AND ACKNOWLEDGE THAT SUCH
LIMITATION OF LIABILITY IS AN ESSENTIAL PART OF THIS EULA AND THE UNDERLYING AGREEMENTS
AND IS AN ESSENTIAL FACTOR IN ESTABLISHING THE PRICE OF THE COGITATE SERVICES.
In certain jurisdictions, the law may not permit the exclusion of incidental or
consequential damages, so some of the above limitation may not apply to You.
12. INDEMNIFICATION. You shall indemnify,
defend and hold harmless Cogitate and its affiliates, partners, suppliers and licensors,
and each of their respective officers, directors, agents and employees (the “Indemnified
Parties”) from and against any claim, proceeding, loss, damage, fine, penalty, interest
and expense (including, without limitation, fees for attorneys and other professional
advisors) arising out of or in connection with the following: (i) Your access to
or use of the Cogitate Services, the Beta Software or Third Party Software; (ii)
Your breach of this EULA or the Underlying Agreements; (iii) Your violation of applicable
laws, rules and regulations; (iv) Your negligence or willful misconduct; or (v)
Your violation of the rights of a third party, including the infringement by You
of any intellectual property or misappropriation of any proprietary right or trade
secret of any person or entity.
13. GOVERNING LAW AND ARBITRATION.
13.1. Governing
Law. All questions concerning the validity, interpretation and performance
of this EULA and the Underlying Agreements shall be governed by and decided in accordance
with the laws of the State of Michigan, without regard to any conflicts of laws
and principles thereof. This EULA, the Underlying Agreements and the transactions
contemplated herein are not and will never be subject to the Uniform Computer Information
Transactions Act (prepared by the National Conference of Commissioner on Uniform
State Laws) as currently enacted by any jurisdiction or as may be codified or amended
from time to time by any jurisdiction.
13.2. Dispute
Resolution by Binding Arbitration.
13.2.1. Any
arbitration under this EULA or the Underlying Agreements will take place on an individual
basis; class arbitrations and class actions are not permitted. Arbitration is more
informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead
of a judge or jury, allows for more limited discovery than in court, and is subject
to very limited review by courts. Arbitrators have the authority to award the same
damages and relief that a court can award.
13.2.2. The
terms of this Section 13.2 are intended to be interpreted broadly. It shall include
but not be limited to: (i) claims arising out of or relating to any aspect of the
relationship between the Parties, whether based in contract, tort, statute, fraud,
misrepresentation or any other legal theory; (ii) claims that arose before this
or any prior EULA (including, but not limited to, claims relating to advertising);
or (iii) claims that may arise after the termination of this EULA or the Underlying
Agreements.
13.2.3. You
agree that, by entering into this EULA, You and Cogitate are each waiving the right
to a trial by jury or to participate in a class action. This EULA evidences a transaction
in interstate commerce, and thus the Federal Arbitration Act governs the interpretation
and enforcement of this provision. This arbitration provision shall survive termination
of this Agreement.
13.2.4. A
party who intends to seek arbitration must first send to the other a written Notice
of Dispute (“Notice”). The Notice shall be provided in accordance with Section 15.2
of this EULA. The Notice must (a) describe the nature and basis of the claim or
dispute; and (b) set forth the specific relief sought (“Demand”). If Cogitate and
You do not reach an agreement to resolve the claim within 30 days after the Notice
is received, You or Cogitate may commence an arbitration proceeding. During the
arbitration, the amount of any settlement offer made by Cogitate or You shall not
be disclosed to the arbitrator until after the arbitrator determines the amount,
if any, to which You or Cogitate is entitled. The Parties may submit the Notice
by submitting the AAA Supplementary Procedures for Consumer-Related Disputes Form
located on the American Arbitration Association (“AAA”) website at
http://www.adr.org/sp.asp?id=22014.
13.2.5. The
arbitration will be governed by the Commercial Arbitration Rules and the Supplementary
Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the AAA,
as modified by this EULA, and will be administered by the AAA. The AAA Rules are
available online at http://www.adr.org or by calling the AAA at 1-800-778-7879.
The arbitrator is bound by the terms of this EULA. All issues are for the arbitrator
to decide, except issues relating to the scope and enforceability of the arbitration
provision are for the court to decide. Unless the Parties agree otherwise, any arbitration
hearings will take place in Washtenaw County, Michigan. If your claim is for $5,000
or less, Cogitate agrees that You may choose whether the arbitration will be conducted
solely on the basis of documents submitted to the arbitrator, through a telephonic
hearing, or by an in-person hearing as established by the AAA Rules. If Your claim
exceeds $5,000, the right to a hearing will be determined by the AAA Rules. Regardless
of the manner in which the arbitration is conducted, the arbitrator shall issue
a reasoned written decision sufficient to explain the essential findings and conclusions
on which the award is based. The payment of these fees will be governed by the AAA
rules.
13.2.6. The
Parties shall be entitled to attorneys’ fees and expenses as they would be under
applicable law.
13.2.7. The
arbitrator may award declaratory or injunctive relief only in favor of the individual
party seeking relief and only to the extent necessary to provide relief warranted
by that party’s individual claim. YOU AND COGITATE AGREE THAT EACH MAY BRING
CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF
OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
Further, unless the Parties agree otherwise, the arbitrator may not consolidate
more than one person’s claims, and may not otherwise preside over any form of a
representative or class proceeding. If this specific provision is found to be unenforceable,
then the entirety of this arbitration provision shall be null and void.
13.2.8. Notwithstanding
any provision in this EULA to the contrary, Cogitate agrees that if Cogitate makes
any future change to this Section 13.2 (other than a change to the Notice address)
during the Term of this EULA, You may reject any such change by sending Cogitate
written notice within 30 days of the change consistent with 15.2 hereof. By rejecting
any future change, You are agreeing that You will arbitrate any dispute between
You and Cogitate in accordance with the language of this provision.
14. REPRESENTATIONS AND WARRANTIES.
14.1. By
Cogitate. Cogitate represents and warrants to You that Cogitate has all
rights and authority necessary to grant You the Licenses or Evaluation License and
the rights granted herein.
14.2. By
You. You represent and warrant to Cogitate that You (i) provided complete
and accurate information during Account Registration and that You shall keep your
contact information current, (ii) if You agreed to this EULA on behalf of an entity,
You represent and warrant that You have the full authority to bind that entity to
this EULA and Your agreement to this EULA will be treated as the agreement of the
entity, (iii) that You have read this EULA and the Underlying Agreements, (iv) that,
unless You notified Cogitate, You are not using Cogitate Services to store Data
subject to HIPAA, and that (v) You are not engaging in any activities that are inconsistent
with this EULA or the Underlying Agreements.
15. MISCELLANEOUS
15.1. Export
Controls. You understand and acknowledge that the Software may be subject
to the export administration regulations of the United States Government relating
to the export of technical data and products. This EULA is subject to, and You agree
to comply with, any laws, regulations, orders or other restrictions on the export
of the Software from the United States which may be imposed by the United States
Government or agencies thereof.
15.2. Notices.
All notices which are required or permitted to be given pursuant to this EULA shall
be in writing and shall be sufficient in all respects if delivered to Cogitate personally,
by registered or certified mail, postage prepaid, addressed to a party as indicated
below, or to Cogitate or You if delivered by electronic mail (the “E-Mail Notice”)
and shall be deemed received as of the date such e-mail is sent; provided, however,
if the sender of the E-Mail Notice receives an e-mail undeliverable notice within
twenty-four (24) hours of sending the E-Mail Notice, then such E-Mail Notice shall
not be deemed received, via e-mail or otherwise.
If to Cogitate:
Cogitate, Inc.
Attn: Legal Department
P. O. Box 980685
Ypsilanti, Michigan 48198 president@cogitateinc.com
If to You, to:
To the E-mail address(es) listed in
the customer account settings.
Notice shall be deemed to have been given upon transmittal thereof as to communications
which are personally delivered and, as to communications made by United States mail,
on the date of receipt. Cogitate may change the above address by giving notice of
such change in the manner provided above for giving notice.
15.3. Force
Majeure. Neither Party shall be liable for any failure to perform, or
delay in performing, any obligations under this EULA or the Underlying Agreements
to the extent such failure or delay is due to fire, flood, earthquake, war (declared
or undeclared), an occurrence commonly referred to as a terrorist attack and any
armed hostilities associated therewith, embargo, legal prohibition, riot, insurrection
or any other cause beyond the control of the Party failing to perform or delaying
the performance of such obligations. The Party so failing or delaying shall be entitled
to a reasonable extension of time for the performance of such obligations.
15.4. Severability.
If any provision of this EULA is held to be illegal, invalid or unenforceable in
any respect, then the Parties hereto shall substitute such provision with a legal,
valid and enforceable provision which attempts to obtain the same result as the
provision declared illegal, invalid or unenforceable. The provisions hereof are
severable, and in the event any provision of this EULA is held to be illegal, invalid
or unenforceable in any respect, then the remaining provisions of this EULA shall
remain binding on the Parties.
15.5. Waiver.
No waiver by any Party of any of the provisions hereof shall be effective unless
expressly set forth in writing and executed by the Party so waiving. The waiver
by any Party of a breach of any provision of this EULA shall not operate or be construed
as a waiver of any subsequent breach.
15.6. Usage.
Wherever any provision of this EULA uses the term “including” (or “includes”), such
term shall be deemed to mean “including without limitation” and “including but not
limited to” (or “includes without limitation” and “includes but is not limited to”)
regardless of whether the words “without limitation” or “but not limited to” actually
follow the term “including” (or “includes”).
15.7. Headings.
The descriptive headings of the several Sections of this EULA are inserted for convenience
only and do not constitute a part of this EULA.
15.8. Survival.
The following Sections shall survive termination or expiration of this EULA: 3 (Data
Ownership), 7 (Intellectual Property Rights), 8 (Enhancements and
Feedback), 10 (Disclaimer of Warranties), 11 (Limitation of Liability),
12 (Indemnification), 13 (Governing Law and Arbitration), and
14 (Representations and Warranties).