These Unblocked Brand Terms of Service are entered into by and between Unblocked Brands, Inc. (“Unblocked”), and the customer (“Customer”) identified in an Order Form that references these Terms and is effective as of the date the Order Form is signed by Customer (“Effective Date”).
IF YOU ARE ENTERING INTO THESE TERMS ON BEHALF OF CUSTOMER, THEN YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS, THEN YOU MUST NOT ACCEPT THESE TERMS.
As used herein, references to the “Terms” means these Unblocked Brand Terms of Service, all Order Forms hereunder, hyperlinked policies, terms, and addenda, subsequent amendments, and such other attachments and exhibits that the parties’ authorized representatives mutually agree to in writing. In the event of any conflict or inconsistency between the terms of any Order Form and the body of these Terms, the Order Form will control solely to the extent of the conflict or inconsistency.
1. Definitions
1.1 “Authorized User” means any person or affiliate of Customer for whom Customer has created an account to access and use the Platform (which may include employees, contractors, or third-party service providers).
1.2 “Consumer” means Customer’s consumers who obtain a Pass and/or receive Push Notifications.
1.3 “Consumer Data” means data and information, which may include personal information, collected by Unblocked via the Services, such as when a Consumer adds a Pass, triggers a Push Notification, or engages in activities collected via the Services, and may include without limitation: (i) device information (such as the device type and configuration, device identifiers, and permission settings); (ii) information about the Consumer’s interaction with a Pass; (iii) information about Consumer’s receipt and response to Push Notifications; and (iv) location information.
1.4 “Customer Data” means the data, information, and other materials transmitted to or through the Platform by Customer or Authorized Users. Customer Data includes Customer Marketing Content, but excludes Feedback and Platform Diagnostic Data.
1.5 “Customer Marketing Content” means trademarks, trade names, service marks, slogans, logos, other source identifiers, and marketing and promotional content, including content in Push Notifications provided or transmitted by Customer or its Authorized Users to the Services.
1.6 “Data Protection Laws” means the laws and regulations that are applicable to the processing of Personal Data by Unblocked on Customer’s behalf under the Agreement, including but not limited to the California Consumer Privacy Act as amended by the California Privacy Rights Act (“CCPA”), the Colorado Privacy Act, Connecticut’s Act Concerning Personal Data Privacy and Online Monitoring, the Montana Consumer Data Privacy Act, the Oregon Consumer Privacy Act, the Texas Data Privacy and Security Act, the Utah Consumer Privacy Act, the Virginia Consumer Data Protection Act, and any implementing regulations thereunder, in each case as applicable to this DPA as and when legally effective.
1.7 “Feedback” means feedback, analysis, suggestions and/or comments related to the Services.
1.8 “Fee(s)” means the fees paid for access to the Services, including subscription fees and one-time purchases.
1.9 “Order Form” means Unblocked’s standard order form that specifies the Services or products purchased by Customer.
1.10 “Pass” refers to a digital pass that can be added to the consumer’s wallet application on their device.
1.11 “Platform” means Unblocked’s software-as-a-service product made available to Customer that allows Customer to create and send push notifications to Consumers via wallet applications.
1.12 “Platform Diagnostic Data” means data regarding use of the Services and the Platform’s performance that is aggregated and de-identified such that it cannot identify Customer, any third-party entity, or any natural persons.
1.13 "Push Notification" refers to a message or communication that is sent to Customer’s consumers via the Pass in their wallet applications, subject to their device notification settings.
1.14 “Services” means the service offering(s) provided by Unblocked as set forth in the Order Form(s), including any updates thereto, as may be available online, via mobile application, or other forms.
1.15 “Third-Party Services” means any applications, products, websites, or services not provided by Unblocked that may be used by Customer in conjunction with the Services.
2. Scope
Scope of Agreement; Precedent. These Terms govern Customer’s and its Authorized Users’ use of the Services. The Services that Unblocked is to provide to Customer are described in one or more Order Form(s) and may include use of the Platform. These Terms hereby incorporate by reference any such Order Form(s).
3. Right to Use The Services
3.1 Use of Services. Subject to the terms and conditions of these Terms, Unblocked hereby grants to Customer during the Term a non-exclusive, non-transferable (except pursuant to Section 13.9 (Assignment) below) and non-sublicensable license to allow the Authorized User to access and use the Services for Customer’s business purposes.
3.2 Customer Obligations. Customer is solely responsible for: (i) providing all hardware, software, networking, and communications capabilities necessary for Customer’s access to the Services; (ii) all activities conducted by each of its Authorized Users and each Authorized User’s compliance with these Terms; (iii) the accuracy, quality, integrity, and legality of Customer Data and the means by which it acquired Customer Data and the contents thereof. Customer represents and warrants that it has provided all legally required disclosures and obtained all legally required consents from individuals prior to adding such individuals as an Authorized User.
3.3 Account Registration and Credentials. Customer must provide accurate and complete information to register for an account to use the Services. Customer shall be responsible for ensuring that each Authorized User has unique login credentials and that each Authorized User keeps their login credentials confidential. Customer will notify Unblocked promptly in the event Customer becomes aware of any unauthorized use of login credentials.
4. Customer Restrictions
4.1 Platform Restrictions. Customer and Authorized Users may not: (i) copy, modify, translate, or create derivative works of the Platform; (ii) reverse engineer, decompile, disassemble, or otherwise attempt to reconstruct, identify, or discover any source code, underlying ideas, underlying Authorized User interface techniques, or algorithms of the Platform; (iii) lend, lease, offer for sale, sell, or otherwise use the Platform for the benefit of any third party or provide any third party except for Authorized Users with access to the Services; (iv) attempt to disrupt the integrity or performance of the Platform; (v) attempt to gain unauthorized access to the Platform or its related systems or networks; (vi) access the Platform to build a competitive product or service, or copy any ideas, features, functions, or graphics; or (vii) remove or destroy any copyright notices or other proprietary markings contained on or in the Platform. Customer acknowledges and agrees that it is responsible for the use or misuse of the Platform by Authorized Users. Any action taken or breach of these Terms by an Authorized User will be deemed an action taken or a breach of these Terms by Customer. Without limiting the foregoing, Customer is responsible for the proper care and use of Customer’s and Authorized Users’ access credentials and any actions resulting from the use of Customer’s or its Authorized Users’ login credentials.
4.2 Acceptable Use. Customer will use the Services only for its management and operation of its own business, and not for any business, services or offerings of non-affiliated third parties. Without limiting the foregoing, Customer will not use the Services to: (i) promote, condone, encourage or facilitate hate, violence or discrimination against people based on race, ethnicity, color, national origin, religion, age, gender, gender identity, sexual orientation, disability, medical condition, veteran status or any other characteristic; (ii) engage in, promote, or facilitate any illegal activity or violate any applicable local, state, national or international law or regulation (including without limitation data privacy and consumer protection law); (iii) violate the rights of others (including privacy rights); (iv) impersonate others or falsely state or otherwise misrepresent Customer’s affiliation with any person, group, or entity (including by “spoofing,” “phishing,” or manipulating headers or other identifiers) including falsely implying that Customer is affiliated with or endorsed by Unblocked or any other third party; (v) send Push Notifications to individuals to whom Customer is not authorized to send such communications or those that have not consented to receive communications from Customer; (vi) harvest or otherwise collect information about others without their consent; (vii) interact with or target people under the age of thirteen; (viii) use the Services in violation of applicable industry standards, including all applicable standards, rules, or regulations regarding push notifications or electronic communications; (ix) disparage Unblocked; or (x) authorize, permit, enable, induce, or encourage any third party to do any of the aforementioned.
4.3 Customer Communications. Without limiting any other obligation under these Terms, Customer shall comply with all applicable laws and regulations applicable to Customer’s use of the Services, including transmission of Push Notifications and Customer Marketing Content. Customer acknowledges and agrees that Unblocked does not control the content of Push Notifications or Customer Marketing Content. Furthermore, Unblocked is not responsible for obtaining any necessary consents or permissions from recipients of Push Notifications. Customer acknowledges that Push Notifications rely on third-party services which are not subject to control by Unblocked (e.g., Apple’s Push Notification Service). Unblocked is not responsible for any errors, delays, throttling, omissions, rejections, or other problems associated with the electronic transmission of Push Notifications.
4.4 Suspension or Termination of Services. Unblocked may suspend, terminate, or otherwise deny Customer’s or any Authorized User’s access to and use of the Services without incurring any resulting obligation or liability, if: (i) Unblocked receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Unblocked to do so; or (ii) Unblocked believes, in its good faith and reasonable discretion, that: (a) Customer or any Authorized User has failed to comply with any of these Terms, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under these Terms; (b) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with any of the Services; or (c) these Terms expire or are terminated. This section does not limit any of Unblocked's other rights or remedies, whether at law, in equity, or under these Terms.
5. Content and Materials
5.1 Unblocked’s Intellectual Property. Except as expressly set forth in these Terms, all intellectual property rights in and to the Services remain the sole property of Unblocked and its licensors. Unblocked owns all content, data, software, inventions, ideas, and other technology and intellectual property that it develops in connection with its products and the Services.
5.2 Customer Data. Customer Data is, as between Unblocked and Customer, the exclusive property of Customer. Customer grants Unblocked a non-exclusive, sublicensable, transferable, worldwide, royalty-free and fully paid license to process and use the Customer Data as necessary for purposes of providing the Services, promoting Customer Passes to consumers, and as otherwise permitted in these Terms. Customer warrants that Customer is the owner or legal custodian of, or otherwise has the right and has or will obtain the necessary permissions, valid consents and releases to lawfully transmit, store, and use all Customer Data in connection with the Services and to grant the rights granted to Unblocked under these Terms. Unblocked shall maintain reasonable and appropriate technical and organizational measure to maintain the security of the Services and Customer Data while in the possession of Unblocked.
5.3 Data Privacy. To the extent Personal Data subject to the Data Protection Laws is processed by Unblocked on Customer’s behalf in connection with Customer’s use of the Services, Unblocked's Data Processing Addendum (as may be updated from time to time) is hereby incorporated by reference.
5.4 Consumer Data. Customer acknowledges and agrees that, in the course of providing the Services to Customer, both Unblocked and Customer will collect, store, and use Consumer Data for their own, independent purposes. Each Party’s use of Consumer Data shall be in compliance with applicable laws, including data protection laws. Customer understands and agrees that Unblocked is permitted to provide notice of its data collection and use practices to Consumers consistent with its obligations under applicable data protections laws, including via links or other notifications within the Pass details.
5.5 Feedback. Customer hereby grants Unblocked a perpetual and irrevocable right to use and exploit Feedback without restriction, compensation, or attribution.
5.6 Aggregated Data. Notwithstanding anything to the contrary in these Terms, Unblocked may create anonymized or aggregated data from Customer Data, Consumer Data, and/or Personal Information that does not identify Customer, any Consumers, any Authorized Users, or any other identifiable individual. Such anonymized or aggregated data may be used for any lawful purposes, including, to use, disclose, compile, distribute, and publish anonymous statistical or analytical data regarding the performance, provision, and operation of the Services, the development of new products or services, or otherwise. Unblocked shall own and retain all intellectual property rights in and to such anonymized or aggregated data entirely without obligation to Customer or restriction of any kind.
5.7 Training and Support. Unblocked may provide commercially reasonable training and support in connection with the Services, in its sole discretion. Any such training or support may be available via email to [email protected]. Unblocked will respond to requests for training or support only from the Authorized Users.
6. Fees
6.1 Fees. Customer will pay Unblocked the fees set forth in the Order Form (“Fees”). All Fees will be due and payable upon receipt of the applicable invoice issued by Unblocked. All Fees are non-cancellable and non-refundable. Late Fee payments will accrue interest at the rate of one and a half percent (1.5%) of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. If Customer’s unpaid invoices are referred to an attorney or collections agency, Customer shall pay all reasonable costs of collections, including attorney’s fees or collections agency fees actually incurred by Unblocked. All Fees shall be payable in USD unless agreed separately in an Order Form.
6.2 Automatic Renewal. Unless otherwise specified in an Order Form, Customer’s subscription Term will automatically renew at Unblocked’s then-current rates for: (i) if Customer’s prior subscription was for a period less than twelve (12) months, another Term of a period equal to Customer’s prior Term, or (ii) if Customer’s prior Term was for twelve (12) months or more, twelve (12) months. Either party may elect not to renew a Term by giving notice to the other party before the end of the current Term. Customer must provide any notice of non-renewal through account settings in the Services or by otherwise providing notice consistent with these Terms.
6.3 Taxes. The Fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any applicable taxing authorities (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with the rights and benefits it receives under these Terms. If Customer is compelled to make any deduction of Taxes, it will pay to Unblocked such additional amounts as are necessary to ensure receipt by Unblocked of the full amount that Unblocked would have received but for the deduction. If Unblocked has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section 6.3, then Unblocked will invoice Customer and Customer will pay that amount unless Customer provides Unblocked with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Unblocked is solely responsible for Taxes assessable against Unblocked based on its net income, property, and employees.
7. Confidentiality
7.1 Confidential Information. “Confidential Information” means any and all code, inventions, know-how, and business, technical, and financial information disclosed by one party (“Discloser”) to the other party (“Recipient”) that is identified as confidential at the time of disclosure or should be reasonably understood by Recipient to be confidential under the circumstances. Feedback regarding Unblocked products or services will not be considered Customer’s Confidential Information.
7.2 Non-Use and Non-Disclosure. The Recipient shall, with respect to Confidential Information of the Discloser: (i) not disclose such Confidential Information to any third party at any time and limit disclosure to its employees, contractors, or its legal, financial, and accounting advisors that have a need to know and who have agreed to be bound by confidentiality obligations that are at least as restrictive as these Terms; and (ii) protect the confidentiality of the Confidential Information with at least the same degree of care as Recipient uses to protect its own Confidential Information of a like nature, but no less than a reasonable degree of care. Notwithstanding the foregoing, Recipient may disclose Confidential Information solely to the extent necessary to comply with a court order or as otherwise required by law or a government body, provided that Recipient must give Discloser prompt written notice and obtain or allow for a reasonable effort by Discloser to obtain a protective order prior to disclosure.
7.3 Exclusions. The obligations with respect to Confidential Information shall not apply with respect to Confidential Information Recipient can demonstrate: (i) is now or becomes publicly available through no fault of Recipient; (ii) is lawfully obtained from a third party without a duty of confidentiality; (iii) is known to Recipient without obligation of confidentiality prior to such disclosure; or (iv) is, at any time, independently developed by Recipient without use of Discloser’s Confidential Information.
7.4 Equitable Relief. The Recipient acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Recipient the Discloser will be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.
8. Term and Termination
8.1 Term. These Terms will commence on the date that Customer first enters into an Order Form and continue until all Order Forms have expired or are terminated according to their terms (the “Term”).
8.2 Termination for Cause. Either party may terminate these Terms upon thirty (30) days’ prior written notice if the other party is in material breach of these Terms and the breaching party fails to remedy the breach within such thirty (30) day notice period.
8.3 Termination for Convenience. Customer may choose to stop using the Services and terminate these Terms (including all Order Forms) at any time for any reason upon written notice to Unblocked, but, upon any such termination (i) Customer will not be entitled to a refund of any pre-paid fees and (ii) if Customer has not already paid all applicable fees for the then-current Subscription Term or related services period (as applicable), any such fees that are outstanding will become immediately due and payable.
8.4 Effects of Termination. Upon expiration or termination of these Terms for any reason, the licenses granted to Customer in Section 3.1 (Use of Services) will automatically terminate and all Fees owed pursuant to Section 6 (Fees) will become immediately due and payable. Any usage by Customer of the Services specified in an Order Form beyond the expiration or termination of such Order Form shall be (i) paid for by Customer at Unblocked’s standard monthly fees for such Services and (ii) subject to these Terms. Any such continued Services after expiration of an Order Form shall not affect Unblocked’s right to discontinue or terminate the Services at any time post-expiration.
8.5 Survival. The provisions set forth in the following sections, and any other right or obligation of the parties in the Agreement that, by its nature, should survive termination or expiration of the Agreement, will survive any expiration or termination of the Agreement: Section 4.1 (Customer Restrictions); Section 5.1 (Unblocked’s Intellectual Property); 5.2 (Customer Data); 5.5 (Feedback); 5.6 (Aggregated Data); Section 6 (Fees); Section 7 (Confidentiality); Section 8.5 (Survival), Section 9 (Warranties and Disclaimers), Section 10 (Limitation of Liability), Section 11 (Indemnification), Section 12 (Dispute Resolution), and Section 13 (Miscellaneous Provisions).
9. Warranties and Disclaimers
9.1 Mutual Warranties. Each party represents and warrants that: (i) it is duly organized, validly existing, and in good standing under the laws and regulations of its jurisdiction of incorporation, organization, or chartering; (ii) it has the right, power, and authority to enter into these Terms and to grant the rights and licenses granted hereunder and to perform all of its obligations hereunder; (iii) the execution of these Terms has been duly authorized by all necessary corporate or organizational action of the party; and (iv) when executed and delivered by both parties, these Terms will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.
9.2 Unblocked. Unblocked represents and warrants that it will use commercially reasonable efforts to make the Services available at all times during the Term, except for planned downtime.
9.3 Customer. Customer represents and warrants that: (i) it owns or otherwise has sufficient rights to the Customer Data to grant the license set forth in Section 5.2 (Customer Data); (ii) the posting and use of Customer Data on or through the Platform does not and will not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights, or other rights of any person or entity, and Customer will not upload any Customer Data to the Platform that contains any sensitive or special categories of information as defined in Data Protection Laws; (iii) the upload, posting, or other submission of Customer Data to the Platform does not and will not result in a breach of contract between Customer and any third party; and (iv) Customer will not knowingly collect personally identifiable information from children under thirteen (13) when using the Services. Customer’s responsibilities as set forth in this Section and these Terms will remain the sole responsibility and liability of Customer notwithstanding that Unblocked may offer guidance or suggestions relating to any of the matters that are Customer’s responsibility and notwithstanding that Unblocked may be engaged to provide services related to such responsibilities of Customer.
9.4 WARRANTY DISCLAIMER. ALL SERVICE, SUPPORT, AND ADD-ON SERVICES ARE PROVIDED “AS IS,” AND UNBLOCKED AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY, OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED, OR STATUTORY. WITHOUT LIMITING UNBLOCKED’S EXPRESS OBLIGATIONS IN THESE TERMS, UNBLOCKED DOES NOT WARRANT THAT CUSTOMER’S USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT UNBLOCKED WILL REVIEW CUSTOMER DATA FOR ACCURACY OR THAT UNBLOCKED WILL PRESERVE OR MAINTAIN CUSTOMER DATA WITHOUT LOSS. CUSTOMER UNDERSTANDS THAT USE OF THE SERVICE NECESSARILY INVOLVES TRANSMISSION OF CUSTOMER DATA OVER NETWORKS THAT UNBLOCKED DOES NOT OWN, OPERATE, OR CONTROL, AND UNBLOCKED IS NOT RESPONSIBLE FOR ANY CUSTOMER DATA LOST, ALTERED, INTERCEPTED, OR STORED ACROSS SUCH NETWORKS. UNBLOCKED CANNOT GUARANTEE THAT UNBLOCKED’S SECURITY PROCEDURES WILL BE ERROR-FREE, THAT TRANSMISSIONS OF CUSTOMER DATA WILL ALWAYS BE SECURE, OR THAT UNAUTHORIZED THIRD PARTIES WILL NEVER BE ABLE TO DEFEAT UNBLOCKED’S SECURITY MEASURES OR THOSE OF ITS THIRD-PARTY SERVICE PROVIDERS. UNBLOCKED WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES, OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE UNBLOCKED’S REASONABLE CONTROL. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.
10. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, EXCEPT FOR INDEMNITY OBLIGATIONS ARISING UNDER SECTION 11 (INDEMNIFICATION) AND CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 6 (FEES), (I) IN NO EVENT WILL EITHER PARTY’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS EXCEED THE FEES THAT CUSTOMER HAS PAID TO UNBLOCKED DURING THE TERM; AND (II) IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THESE TERMS (INCLUDING, WITHOUT LIMITATION, FOR LOST PROFITS, DATA, OR OTHER BUSINESS OPPORTUNITIES), HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE PARTIES AGREE THAT THE FOREGOING LIMITATIONS REPRESENT A REASONABLE ALLOCATION OF RISK UNDER THESE TERMS. This Section 10 will not apply to any actual or alleged infringement by Customer or any Authorized User of Unblocked’s intellectual property or other proprietary rights.
11. Indemnification
11.1 Customer. If a third party asserts a claim, or any proceeding, investigation, or inquiry is initiated by a regulator (each, a “Third-Party Claim”) against Unblocked, its affiliates or any of their respective affiliates, officers, employees, or contractors (each, an “Unblocked Released Party”) arising out of or in connection with any (i) use of the Services by Customer or any Authorized User in violation of these Terms; (ii) breach by Customer of Customer’s representations or warranties contained herein, including Section 9.3 (Customer); or (iii) Customer Data uploaded or transmitted to or through the Services or generated by the Services by Customer or an Authorized User; then, in each case, Customer will indemnify and defend each Unblocked Released Party from the Third-Party Claim and hold such parties harmless from all penalties, losses, liabilities, costs, and expenses, including, but not limited to, reasonable attorneys’ fees, consultants’ fees, court costs, and damages finally awarded or costs of settlements entered into with respect to the Third-Party Claim. This Section 11.1 states Customer’s entire and sole liability for Third-Party Claims.
11.2 Unblocked. If a Third-Party Claim is asserted against Customer or any of its affiliates, officers, employees, or contractors (each, a “Customer Released Party”) alleging that the Platform infringes such third party’s patent rights, then Unblocked will indemnify and defend the Customer Released Party from the Third-Party Claim and hold such party harmless from any damages finally awarded or costs of settlements entered into with respect to the Third-Party Claim. In the event of an infringement claim, Unblocked, at its sole option and expense, may: (a) procure for Customer the right to continue using the Platform or infringing part thereof; (b) modify or amend the Platform or infringing part thereof; (c) replace the Platform or infringing part thereof with other software having substantially the same or better capabilities; or, (d) if the foregoing are not commercially practicable, terminate these Terms and repay to Customer a pro-rata portion of the Fees. Notwithstanding the foregoing sentences of this Section 11.2, Unblocked will have no liability for a Third-Party Claim to the extent it arises out of or results from (A) any breach of these Terms by Customer or any Authorized User; (B) any modification, alteration, or addition made to the Platform by Customer or any Authorized User, including any combination of the Platform with software not provided by Unblocked; or (C) any Customer Data. This Section 11.2 states Unblocked’s entire and sole liability with respect to Third-Party Claims.
11.3 Procedure. The party seeking indemnity under this Section 11 (“Indemnified Party”) will provide the other party (“Indemnifying Party”) with prompt written notice of any claim for which the Indemnified Party seeks an indemnity, provided that failure to provide such notice will not relieve Indemnifying Party of its obligations hereunder, except to the extent that Indemnifying Party was materially prejudiced by such failure. The Indemnifying Party shall, at its own expense, defend the Indemnified Party using legal counsel reasonably acceptable to the Indemnified Party. The Indemnified Party will reasonably cooperate in the defense of any such claim, at the Indemnifying Party’s sole expense. The Indemnifying Party will have the sole authority to settle a claim, provided that it may not settle any claim against the Indemnified Party without the Indemnified Party’s prior express written consent, which may not be unreasonably withheld, conditioned, or delayed, unless such settlement consists solely of monetary damages for which the Indemnifying Party is responsible hereunder. The Indemnified Party may participate in the defense of a claim through counsel of its own choice at its own expense; provided, however, that if the Indemnified Party reasonably determines that the Indemnifying Party is unwilling or unable to defend the Indemnified Party’s interests, then the Indemnified Party may assume the defense against any claims at the Indemnifying Party’s sole expense.
12. Dispute Resolution
Customer agrees to the following mandatory arbitration and class action waiver provisions:
12.1 Informal Dispute Resolution. Customer and Unblocked agree to resolve any claims arising out of or relating to these Terms or the Services, regardless of when the claim arose, even if it was before these Terms existed (a “Dispute”), by first engaging in informal dispute resolution. Before either party files a claim against the other, both parties agree to try to resolve the Dispute informally by sending notice to the other party using the notice mechanism described in these Terms. If Customer’s notice mechanism is not specified, notice of a Dispute will be sent to the email address associated with Customer’s administrator account. If the parties are unable to resolve a Dispute within sixty (60) days, either party has the right to initiate arbitration. Any statute of limitations will be tolled during this informal resolution process. All negotiations pursuant to this Section 12.1 will be confidential and treated as compromise and settlement negotiations for purposes of all rules and codes of evidence of applicable legislation and jurisdictions.
12.2 Arbitration Forum. Both Customer or Unblocked may commence binding arbitration through JAMS, or, if not available, Customer and Unblocked will select an alternative arbitral forum. The initiating party must pay all filing fees for the arbitration and payment for other administrative and arbitrator’s costs will be governed by the arbitration provider’s rules.
12.3 Arbitration Procedures. The arbitration will be conducted by telephone, based on written submissions, video conference, or in person in Los Angeles, California or at another mutually agreed location. The arbitration will be conducted by a sole arbitrator by JAMS under its then-prevailing Comprehensive Arbitration Rules. All issues are for the arbitrator to decide, except a California court has the authority to determine (a) whether any provision of this arbitration agreement should be severed and the consequences of said severance, (b) whether Customer has complied with conditions precedent to arbitration, and (c) whether an arbitration provider is available to hear the arbitration(s) under Section 12.2. The arbitrator is not empowered to award punitive or exemplary damages, except as may be required by statute, or any pre-award interest. The arbitrator shall issue a reasoned final award. A final award rendered in connection with arbitration pursuant to this section shall be binding upon the parties, and if fully satisfied within thirty (30) days of being issued, no party may seek to confirm the final award. If a final award is not fully satisfied within thirty (30) days, then a party may apply to have judgment upon such an award entered and enforced in any court of competent jurisdiction. The amount of any settlement offer will not be disclosed to the arbitrator by either party until after the arbitrator determines the final award, if any.
12.4 Exceptions. Nothing in these Terms requires arbitration of the following claims: (a) individual claims brought in small claims court; and (b) injunctive or other equitable relief to stop unauthorized use or abuse of the Services or intellectual property infringement. Each party acknowledges that irreparable harm could result in the event of a breach or threatened breach of such provisions of these Terms.
12.5 NO CLASS ACTIONS. Disputes must be brought on an individual basis only and may not be brought as a plaintiff or class member in any purported class, consolidated, or representative proceeding. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed. If for any reason a Dispute proceeds in court rather than through arbitration, each party knowingly and irrevocably waives any right to trial by jury in any action, proceeding, or counterclaim. This does not prevent either party from participating in a class-wide settlement of claims.
12.6 Severability. If any part of this Section 12 is found to be illegal or unenforceable, the remainder will remain in effect, except that if a finding of partial illegality or unenforceability would allow class or representative arbitration, this Section 12 will be unenforceable in its entirety. Nothing in this section will be deemed to waive or otherwise limit the right to seek public injunctive relief or any other non-waivable right, pending a ruling on the substance of that claim from the arbitrator.
13. Miscellaneous Provisions
13.1 Headings. Headings in these Terms are inserted solely for convenience and are not intended to affect the meaning or interpretation of these Terms.
13.2 Electronic Records and Signature. The parties agree that an electronic signature is the legal equivalent of a manual signature on the Agreement, and that, if applicable, selecting a button or other mechanism indicating consent to these Terms constitutes Customer’s electronic signature.
13.3 Entire Agreement. The Agreement is the entire agreement between Customer and Unblocked with respect to its subject matter and supersedes all prior or contemporaneous agreements, communications, and understandings, whether written or oral. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance, or warranty that is not set out in the Agreement. To the extent there is any conflict or inconsistency between these Terms and any Order Form, the Order Form will prevail to the extent of such conflict or inconsistency. Additional terms or conditions proposed by Customer are hereby expressly excluded.
13.4 Relationship of the Parties. For all purposes under these Terms, Customer and Unblocked will be and act as an independent contractor and will not bind nor attempt to bind the other to any contract.
13.5 Third-Party Interactions. Customer’s use of any third-party products, packages, or services that are not provided by Unblocked which link to the Services, or which are enabled in conjunction with the Services (“Third-Party Interactions”) shall be at Customer’s choice and sole discretion. To the extent Customer decides to use Third-Party Interactions, Customer’s access and use of such Third-Party Interactions shall be governed solely by the terms and conditions of such Third-Party Interactions as between Customer and the third party. In the event Customer enables, installs, connects, or provides access to any Third-Party Interactions for use with the Services, Customer (i) permits the transmission of Customer Data to such Third-Party Interactions at Customer’s direction; (ii) permits such Third-Party Interactions to access the Customer Data at Customer’s direction; and (iii) will provide notice to Unblocked of any transmission of Customer Data and provide notice to Unblocked of the identity of such third party (unless notice is provided in connection with an API call). Unblocked does not license, support, control, endorse, or otherwise make any representations or warranties regarding any Third-Party Interactions, notwithstanding that Unblocked may have identified such Third-Party Interactions that Customer subsequently decided to use, and notwithstanding that Customer has directed Unblocked to implement or configure such Third-Party Interactions on Customer’s behalf.
13.6 No Third-Party Beneficiaries. There are no intended third-party beneficiaries to these Terms, and it is the parties’ specific intent that nothing contained in these Terms will give rise to any right or cause of action, contractual or otherwise, in or on behalf of any third party.
13.7 Injunctive Relief. Customer agrees that any violation or threatened violation of these Terms may cause irreparable injury to Unblocked, entitling Unblocked to seek injunctive relief in addition to all legal remedies.
13.8 Force Majeure. Except for payment obligations, neither Customer nor Unblocked will have any liability for failures or delays resulting from conditions beyond Customer’s or Unblocked’s reasonable control, including but not limited to governmental action or acts of terrorism, earthquakes or other acts of God, labor conditions, or power failures.
13.9 Assignment. These Terms cannot be assigned other than as permitted under this Section 13.9 (Assignment). Unblocked may assign these Terms to an affiliate without notice or Customer’s consent. Both Customer and Unblocked may assign these Terms to a successor to substantially all the respective party’s assets or business, provided that the assigning party provides reasonable (at least thirty (30) days’) prior written notice of the assignment. These Terms will be binding upon the parties and their respective successors and permitted assigns.
13.10 Export Regulations. Customer agrees to comply with all applicable export and re-export control laws and regulations, including trade and economic sanctions maintained by the Treasury Department’s Office of Foreign Assets Control. Specifically, Customer covenants that it will not directly or indirectly sell, export, re-export, transfer, divert, or otherwise dispose of any products, service, or technology (including products derived from or based on such technology) received from Unblocked under these Terms to any destination, entity, or person prohibited by the laws or regulations of the United States, without obtaining prior authorization from the competent government authorities as required by those laws and regulations.
13.11 Notices. All notices will be in writing. Unblocked may provide Customer notice using the registration information or the email address associated with Customer’s account. Services will be deemed given on the date of receipt if delivered by email or on the date sent via courier if delivered by post. The official address identified for Unblocked is 9000 Washington Blvd Culver City, CA 90232.
13.12 Marketing. Unblocked may use Customer’s name and logo in both print and electronic media to identify Customer as an Unblocked customer.
13.13 Severability. In the event that any provision of these Terms is determined to be illegal or unenforceable, that provision will be limited or eliminated so that these Terms will otherwise remain in full force and effect and enforceable.
13.14 Jurisdiction, Venue, and Choice of Law. These Terms will be governed by the laws of the State of California, excluding California’s conflicts of law rules or principles. Except as provided in Section 12 (Dispute Resolution), all claims arising out of or relating to these Terms will be brought exclusively in the federal or state courts of Los Angeles, California, USA.