Terms of Service
Tenjin Software as a Service License Agreement
Last Updated: Ноя 6, 2023
This Tenjin Software as a Service License Agreement (“Agreement”) is made by and between Tenjin, Inc., a Delaware corporation (“Tenjin”) and you (“Customer”, “You” or “Your”). This Agreement explains the terms and conditions under which You may access and/or use the Tenjin Platform (as defined below). By accessing or using the Tenjin Platform, You signify that you have read, understood, and agree to be bound by this Agreement whether or not You are a registered user of the Tenjin Platform. If you access or use the Tenjin Platform on behalf of a company, organization, or other entity, then (a) “You” includes you and that entity, and (b) You represent and warrant that You are an authorized representative of the entity with the authority to bind the entity to this Agreement, and that You agree to this Agreement on the entity’s behalf.
“Ad Network Terms” means all terms, conditions, and/or policies applicable to any advertising activities on or in connection with any third-party advertising network through which You intend to place advertisements or have otherwise integrated.
“Authorized User” means Your employees that You have expressly authorized to use and access the Tenjin Platform through Your Tenjin account.
“Documentation” means any proprietary documentation made available by Tenjin for use with the Tenjin Platform, including any documentation available online or otherwise.
“Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
“Attribution”: Installs that are tracked by Tenjin and come from a Paid channel (non-organic).
“Tenjin Content” means all content, including without limitation software (in object or source code form), script, programming code, data, information, structural hierarchies, interfaces, processes, HTML code, trademarks, service marks, proprietary logos, distinctive brand features, images, illustrations, graphics, multimedia files and/or text, contained in the Tenjin Platform, as well as the structure, selection, coordination, expression, “look and feel”, and arrangement of the Tenjin Platform, and all Intellectual Property Rights therein or relating thereto.
“Tenjin Data” means any data or information (i) collected by the Tenjin Platform (excluding Your Data) or (ii) generated, developed, or provided by Tenjin or the Tenjin Platform in connection with the provision of the of the Tenjin Platform to You or otherwise, including without limitation, analytics data, optimization data, output data, and aggregated data (including Aggregate Data, as defined in Section 5.2).
“Tenjin Platform” means Tenjin’s proprietary online software as a service (“SaaS”) platform located at tenjin.com (including, without limitation, any successor domains or subdomains thereof), together with any fixes, updates, enhancements and upgrades thereto. Without limiting the foregoing, the Tenjin Platform shall include the Tenjin Content, the Documentation, and the Tenjin Data.
“Your Data” means advertising campaign data or information made available to Tenjin or the Tenjin Platform by or on behalf of You or any Authorized User or via Your use of the Tenjin Platform.
“GDPR” means the General Data Protection Regulation (GDPR) (EU) 2016/679.
“Marketing Channels” means the companies and services added to the Tenjin account on this page: https://dashboard.tenjin.com/dashboard/channels.
- LICENSE GRANT.
Subject to the terms and conditions of this Agreement, including, without limitation, Your payment of all applicable fees, Tenjin grants You a limited, revocable, non-exclusive, non-transferable license (without the right to sublicense) during the Subscription Term (as defined in Section 9) to access and use the Tenjin Platform solely for Your internal business purposes and in accordance with any applicable Documentation. The foregoing license grant is not a sale of the Tenjin Platform or any copy thereof, and Tenjin or its third-party partners or suppliers retain all right, title, and interest in the Tenjin Platform (and any copy thereof). Any attempt by You to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in this Agreement, is void. Tenjin reserves all rights not expressly granted under this Agreement.
- LICENSE RESTRICTIONS.
You and Your Authorized Users shall not, directly or indirectly, nor shall You or any Authorized User permit any third party to: (i) copy, distribute, or disclose any part of the Tenjin Platform in any medium, including without limitation by any automated or non-automated “scraping”; (ii) use any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Tenjin Platform in a manner that sends more request messages to the Tenjin servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser; (iii) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the Tenjin Platform; (iv) modify or create derivative works based on the Tenjin Platform; (v) rent, lease, distribute, sell, resell, assign, or otherwise transfer Your rights to use the Tenjin Platform or any portion thereof; (vi) use the Tenjin Platform for timesharing or service bureau purposes or otherwise for the benefit of a third party; (vii) remove any proprietary notices from the Tenjin Platform or any other Tenjin materials furnished or made available hereunder; (viii) use the Tenjin Platform in violation of any law, rule, regulation, or third-party right; (ix) use the Tenjin Platform in violation of any terms or policies of any advertising network, including, without limitation, any Ad Network Terms; (x) take any action that imposes, or may impose at Tenjin’s sole discretion an unreasonable or disproportionately large load on the Tenjin infrastructure; (xi) upload any data that infringes the Intellectual Property Rights of any third party or is otherwise unlawful, or that contains malware viruses, Trojan horses, spyware, worms, or other malicious or harmful code through the Tenjin Platform; or (xii) bypass the measures Tenjin may use to prevent or restrict access to the Tenjin Platform, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Tenjin Platform or the content therein.
- YOUR ACCOUNT; AUTHORIZED USERS.
You are solely responsible for the activity that occurs under Your account, and You must keep Your account password secure. You should use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with Your account. You must notify Tenjin immediately of any breach of security or unauthorized use of Your account. Tenjin will not be liable for any losses caused by any unauthorized use of Your account. During the Subscription Term (as defined in Section 9), You may allow Your Authorized Users to access the Tenjin Platform under Your account, provided that You shall ensure that Your Authorized Users are bound by and comply with the terms and conditions of this Agreement. You acknowledge and agree that You shall be liable and responsible for any and all use of and access to the Tenjin Platform by Your Authorized Users and any liability incurred by such Authorized Users.
- PROPRIETARY RIGHTS.
5.1 Your Proprietary Rights and License. Tenjin hereby acknowledges and agrees that, as between You and Tenjin and subject to Section 5.2 below, You own all legal right, title, and interest in and to (i) Your Data, (ii) Your trade names, trademarks, service marks, logos, domain names, and other distinctive brand features (collectively, “Your Marks”), (iii) any images and other content You make generally available on or in connection Your website or other online service (“Your Content”) and (iv) all Intellectual Property Rights in the foregoing. You are solely responsible for the content of Your Data and Your use of the Tenjin Platform to store Your Data. You agree that You have all the necessary rights in Your Data to permit the activities provided for under this Agreement. Except as expressly set forth in this Agreement, nothing will confer on Tenjin any right of ownership or interest in Your Data, Your Marks, Your Content, or the Intellectual Property Rights therein. You reserve all rights in Your Data, Your Marks, and Your Content not expressly granted under this Agreement.
5.2 Tenjin Proprietary Rights and Data Usage.
A) You hereby acknowledge and agree that, as between You and Tenjin, Tenjin owns all legal right, title and interest in and to (i) the Tenjin Platform (including, without limitation, the Tenjin Content and the Tenjin Data), and (ii) all Intellectual Property Rights in the foregoing. Nothing in this Agreement will confer on You or any Authorized User any right of ownership or interest in the Tenjin Platform, the Tenjin Data, or the Intellectual Property Rights therein. Tenjin reserves all rights in the Tenjin Platform not expressly granted under this Agreement.
- C) In connection with the operation of the Tenjin Platform, Tenjin analyzes the use and effectiveness of online advertising and related activities. You hereby perpetually and irrevocably agree that, unless Tenjin is required to do otherwise under applicable law or pursuant to the Ad Network Terms applicable to the ad network from which You or Tenjin obtained Your Data, Tenjin is authorized to aggregate Your Data such that it is not reasonably identifiable with You or any individual (“Aggregate Data”) and use and disclose such Aggregate Data for any of the following purposes: (i) to provide the Tenjin Platform and related services, including to other customers, (ii) to develop, maintain, support, and improve Tenjin’s products and services, including, without limitation, the Tenjin Platform; (iii) to market, promote, and advertise Tenjin’s products or services, including without limitation the Tenjin Platform; (iv) to create and distribute reports to third parties for industry research and analysis, demographic profiling and other similar purposes; and/or (v) for any other purposes to operate Tenjin, Inc. You acknowledge and agree that Tenjin will exclusively own all right, title, and interest in and to all Aggregate Data and other analytics and output data generated or provided by Tenjin and/or the Tenjin Platform.
- D) You agree that Tenjin may use Your Marks in connection with providing the Tenjin Platform hereunder, and/or in presentations, marketing materials, customer lists, financial reports and website listings (including links to Your website) for the purpose of advertising or publicizing the Tenjin Platform and/or Tenjin’s business with Your written consent in each case.
- E) If You provide Tenjin with any suggestions, ideas, feedback, reports, error identifications or other information related to the Tenjin Platform or Your use or evaluation thereof (“Feedback”), You hereby assign to Tenjin all right, title and interest in and to all Feedback, including all Intellectual Property Rights therein, and agree to assist Tenjin in perfecting such rights and obtaining assignments of such rights from all individuals involved in generating the Feedback.
- SECURITY. Tenjin uses reasonable administrative, physical and electronic measures designed to preserve the integrity and security of Your Data and to protect it from unauthorized access, use or disclosure. You acknowledge that, notwithstanding such security precautions, use of, or connection to, the Internet provides the opportunity for unauthorized third parties to circumvent such precautions and illegally gain access to the Tenjin Platform and Your Data. Accordingly, Tenjin cannot and does not guarantee the privacy, security, integrity or authenticity of any information so transmitted over or stored in any system connected to the Internet or that any such security precautions will be adequate or sufficient.
- YOUR OBLIGATIONS.
7.1 Hardware. You are solely responsible for obtaining and maintaining all computer hardware, software and communications equipment needed to access and use the Tenjin Platform, and for paying all third-party fees and access charges (e.g., ISP, telecommunications, etc.) incurred while using the Tenjin Platform.
7.2 Cooperation. You shall cooperate with Tenjin in providing services to You in connection with Your use of the Tenjin Platform.
7.3.1 Compliance with the General Data Protection Regulation (GDPR). For the avoidance of doubt, this Section 7.3 shall apply to GDPR. You shall obtain all necessary consents from the user of the mobile app in order for you to send Your Data to Tenjin for processing. Under GDPR, Tenjin is a data processor; You are the data collector or data agent (whichever is appropriate in Your case). Your written instruction to Tenjin under GDPR shall be the following: “Tenjin shall process the data sent to the Tenjin Platform for the purpose of providing marketing analytics (and any additional services or products) in accordance with these Terms of Service.” Any other written instructions shall be submitted to Tenjin in writing by You.
7.3.2 Do Not Sell User Data. You may not use Tenjin’s Platform or DataVault to facilitate the sale of end user data (unless the end user has given you specific consent to sell their data).
7.3.3. For the purposes of install attribution and other aspects of the Service, Tenjin may send device information, including advertising ID and IP address, to certain Marketing Channels that you add to Your Tenjin account. Tenjin will do so via Your agreement with the Marketing Channels and according to the applicable Terms of Service. You represent and warrant that all Marketing Channels that You add to Your account are compliant with all applicable laws, including GDPR, and there is a legally valid basis for the data transfer.
7.3.4. If You use Tenjin’s DataVault, You represent and warrant that any data that is considered Personal Information by all applicable privacy laws, including GDPR, was obtained, and is being stored, with the informed consent of the Data Subject (as defined by GDPR). You also hereby represent and warrant that you will not use DataVault and the data contained therein for any purpose that violates any applicable law, including GDPR.
7.3.5. Developers may not use the Tenjin SDK for any purpose not expressly permitted by the Tenjin’s Purchase Order. Except to the extent required by applicable third party licenses, Developer may not copy (except for backup purposes), modify, adapt, redistribute, decompile, reverse engineer, disassemble, attempt to derive the source code, underlying ideas, algorithm, or structure, or create derivative works of the Tenjin SDK or any part of the Tenjin SDK.
- FEES AND TAXES.
8.1 Fees and Payment. Certain aspects of the Tenjin Platform may be provided for a fee or other charge. If You elect to use paid aspects of the Tenjin Platform, You agree to the pricing and payment terms set forth in this Agreement, any applicable purchase order and/or on the Tenjin Platform, as Tenjin may update them from time to time, in its sole discretion.
Customers who do not elect a dedicated purchase order at the time of placing an order on this website, shall be subject to the default pricing as specified in the separate dashboard notification or email.
Dedicated Purchase Orders: Customers have the option to submit a dedicated purchase order when placing an order via Tenjin’s website. Customers submitting a dedicated purchase order will be charged according to the terms specified therein. The absence of a dedicated purchase order will result in the application of default pricing. In the event of any discrepancies between the pricing stated in the dedicated purchase order and the Default Pricing, the pricing detailed in the dedicated purchase order shall prevail.
The default pricing for Customers without dedicated purchase orders is subject to change at the sole discretion of Tenjin. Any modifications to Default Pricing will be communicated through appropriate channels, including updates to the dashboard notification or email. .
Tenjin may add new services for additional fees and charges, or add or amend fees and charges for existing services, at any time in its sole discretion. Notwithstanding the foregoing, except if otherwise specified in a Tenjin Purchase Order: (i) the fees for each unit of pricing during any renewed subscription term may be increased by up to 5% (five percent) of the applicable fees in the immediately preceding subscription term; and (ii) any free period provided during the expiring Subscription shall not apply to the renewed subscription term. Any change to Tenjin’s pricing or payment terms shall become effective in the billing cycle following notice of such change to You as provided in this Agreement. In the event Tenjin changes its pricing from this Agreement in the attached Tenjin Purchase Order, You may terminate this Agreement by giving Tenjin thirty (30) days notice of your intention to cancel Your Subscription.
8.2 Quarterly Payment Plan. Attribution Allocation: Customer shall have an annual Attribution limit as agreed upon in advance by both parties to this Agreement, which allows Customer to utilize the entire Attribution limit within the 12-month period, irrespective of the quarter. However, such annual Attribution limit shall be allocated pro rata by quarter for billing and invoicing purposes. Quarterly Payment Schedule: The quarterly payment schedule shall be based on the actual Attribution usage by the Customer. In the event that Customer exceeds their quarterly Attribution usage limit before the end of the quarter, the subsequent quarterly payment shall be invoiced in advance and Customer notified within a reasonable time frame.
8.3 Payment Information; Taxes. All information that You provide in connection with a purchase or transaction or other monetary transaction interaction with Tenjin or the Tenjin Platform must be accurate, complete, and current. You agree to pay all charges invoiced to You or incurred by users of Your credit card, debit card, or other payment method used in connection with a purchase or transaction or other monetary transaction interaction with Tenjin or the Tenjin Platform. You shall pay all applicable subscription fees, including any sales, excise, service, use or other taxes now or hereafter imposed upon or required to be collected by Tenjin by any authority in connection with or arising from the Tenjin Platform and/or this Agreement, excluding taxes based upon Tenjin’s net income. You shall pay each invoice issued by Tenjin by the applicable due date and in the currency specified by Tenjin. Any amounts not paid when due shall bear interest at the rate of one and one-half percent (1.5%) per month or the maximum rate allowed by law, whichever is less.
8.4 No Refunds. In the event You cancel your Subscription (as defined below), You are not guaranteed any refund or exchange for any unused time on a Subscription, any license or Subscription fees for any portion of the Tenjin Platform, any content or data associated with Your account, or for anything else; however, Tenjin reserves the right to provide refunds and exchanges in appropriate circumstances in its sole discretion.
9.1 Agreement Term. This Agreement is effective unless terminated in accordance with the terms and conditions of this Agreement.
9.2 Subscription Term. Your subscription to the Tenjin Platform (“Subscription”) shall commence on the subscription start date indicated on the applicable Tenjin’s purchase order (“Purchase Order” or “PO”), and unless earlier terminated pursuant to the terms and conditions of this Agreement, shall continue until the subscription end date set forth on the Tenjin Purchase Order (the “Initial Subscription Term”), except as otherwise provided below. Thereafter, Your Subscription will automatically renew for additional successive terms equal to the period of the Initial Subscription Term (each, a “Renewal Subscription Term;” the Initial Subscription Term together with each Renewal Subscription Term shall be collectively referred to as the “Subscription Term”), unless either party provides the other party with written notice of its intent to prevent the renewal of Your Subscription at least thirty (30) days prior to the expiration of the then-current Subscription Term. If you have not registered for a paid Subscription, the Subscription Term shall commence on the date of registration for the Tenjin Platform and continue until the earlier of (a) the termination or expiration of this Agreement or (b) the date you are notified (as provided under this Agreement) that the services to which you have subscribed have become paid services. Upon registration for the paid services, the previous free Subscription Term shall immediately terminate, and an additional paid Initial Subscription Term shall commence.
9.3 Upgrade Or Downgrade. An upgrade of the chosen package leads to a new start of the current Subscription Term. A downgrade is only possible from the beginning of the next Subscription Term with at least thirty (30) days written notice prior to the expiration of the current Subscription Term provided to Tenjin.
10.1 Termination. If a party defaults in the performance of any material provision of this Agreement, then the other party may give written notice to the defaulting party that if the default is not cured within thirty (30) days, the Agreement will be automatically terminated. Notwithstanding the foregoing, Tenjin may immediately terminate this Agreement and the rights granted hereunder in the event of any breach or alleged breach by You or any Authorized User of Sections 3, 5.2, or 7.3 of this Agreement (or any portion thereof), as determined by Tenjin. Notwithstanding anything to the contrary and without limiting the foregoing, Tenjin may permanently or temporarily terminate or suspend Your access to the Tenjin Platform or any portion thereof immediately without liability if: (i) Tenjin suspects that You or any of Your Authorized Users is using the Tenjin Platform in a way that violates this Agreement and/or could expose Tenjin or any other entity to harm or legal liability; or (ii) if Tenjin in its sole discretion believes it is required to do so by law.
10.2 Effect of Termination. Upon the effective date of expiration of the Subscription Term or termination of this Agreement for any reason, whether by You or Tenjin: (i) all licenses granted to You hereunder shall terminate; (ii) Your right to use and access the Tenjin Platform shall cease; and (iii) You shall immediately cease accessing and using the Tenjin Platform. Sections 1, 3, 5, 7.3, 8 (to the extent not satisfied during the term of the Agreement), 10.2, and 11 – 15 of this Agreement shall survive its expiration or termination for any reason. Any outstanding balance through the date of termination shall immediately become due and payable in full.
11.1 Obligations. Each of the parties agrees to maintain in confidence any information disclosed by either party to the other party, either directly or indirectly, in writing, orally or by inspection of tangible objects, which is designated as “Confidential,” “Proprietary” or some similar designation, or if given orally, is confirmed in writing as having been disclosed as confidential or proprietary within a reasonable time (not to exceed thirty (30) days) after the oral disclosure, or that reasonably should be understood to be confidential given the nature of the information and the circumstances of the disclosure (“Confidential Information”). The receiving party shall not (a) disclose, use, transmit, inform or make available to any third party any Confidential Information of the disclosing party, other than to (i) the receiving party’s employees who have a “need to know” for the receiving party to exercise its rights or perform its obligations hereunder and (ii) professional advisers, and actual or prospective investors, provided that such employees, investors, acquirers and professional advisers are bound by agreements or, in the case of professional advisers, ethical duties respecting such Confidential Information in accordance with the terms of this Section 11, or (b) use any Confidential Information of the other party except as a necessary part of performing its obligations under this Agreement or as otherwise permitted by this Agreement. Each party shall take all actions as are reasonably necessary and appropriate to preserve and protect the Confidential Information of the other party and such party’s’ respective rights therein, at all times exercising at least the same degree of care that it uses to protect its own Confidential Information of a similar nature, which shall be at least a reasonable degree of care.
11.2 Exclusions. Confidential Information shall not include any information that is (i) already rightfully known to the receiving party at the time of the disclosure; (ii) publicly known at the time of the disclosure or becomes publicly known through no wrongful act or failure of the receiving party; (iii) subsequently disclosed to the receiving party on a non-confidential basis by a third party not having a confidential relationship with the other party hereto that rightfully acquired such information; (iv) communicated to a third party by the receiving party with the express written consent of the disclosing party; or (v) independently developed by the receiving party. A disclosure of Confidential Information that is legally compelled to be disclosed pursuant to a subpoena, summons, order or other judicial or governmental process shall not be considered a breach of this Agreement; provided the receiving party provides prompt notice of any such subpoena, order, or the like to the disclosing party so that the disclosing party will have the opportunity to obtain a protective order or otherwise oppose the disclosure.
- WARRANTY DISCLAIMER. YOU ACKNOWLEDGE THAT THE TENJIN PLATFORM AND ANY RELATED SERVICES ARE PROVIDED ON AN ‘”AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TENJIN, ITS LICENSORS AND SUPPLIERS EXPRESSLY DISCLAIM ALL, AND MAKE NO, WARRANTIES OF ANY KIND (WHETHER EXPRESS, STATUTORY, IMPLIED OR OTHERWISE ARISING IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE) WITH RESPECT TO THE TENJIN PLATFORM OR SERVICES, INCLUDING, WITHOUT LIMITATION, THE CONDITIONS AND/OR WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. TENJIN DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE TENJIN PLATFORM WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE TENJIN PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS WILL BE CORRECTED. TENJIN IS NOT OBLIGATED TO PROVIDE YOU WITH ANY UPDATES TO THE TENJIN PLATFORM BUT MAY ELECT TO DO SO IN ITS SOLE DISCRETION.
- INDEMNIFICATION. You agree to defend (including responsibility for all court costs, costs of professionals and reasonable attorneys’ fees) and/or settle any and all claims, suits, actions or proceedings brought by a third party (including governmental entities) against (i) Tenjin; (ii) its affiliates, licensors, and suppliers; and (iii) each of their respective employees, contractors, agents, officers and directors, arising out of or in connection with (a) use of the Tenjin Platform by You or any Authorized User in a manner that violates this Agreement, including but not limited to a breach of Sections 3 or 7.3, 7.3.1, 7.3.2, 7.3.3 or 7.3.4; or (b) injury, damage or loss resulting from Your or any Authorized User’s use of the Tenjin Platform (“Claim(s)”), and shall pay all damages, fines, penalties, and other liabilities awarded or settlement amounts entered into to the extent based upon such Claim. Your obligations under this Section are contingent upon: (A) Tenjin providing You with prompt written notice of such Claim; (B) Tenjin providing reasonable cooperation to You, at Your expense, in the defense and settlement of such Claim; and (C) You having sole authority to defend or settle such Claim.
- LIMITATION OF LIABILITY.
14.1 Consequential Damages Waiver. UNDER NO CIRCUMSTANCES SHALL TENJIN, OR ITS LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND THE LIKE) ARISING OUT OF OR RELATING TO THE USE AND/OR INABILITY TO USE THE TENJIN PLATFORM OR THIS AGREEMENT, EVEN IF TENJIN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
14.2 Limitation of Damages. IN NO EVENT SHALL TENJIN’S TOTAL AGGREGATE LIABILITY TO YOU OR ANY AUTHORIZED USER FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT, INCLUDING NEGLIGENCE, OR OTHERWISE) ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNTS PAID BY YOU TO TENJIN HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO THE DATE THE LAST CAUSE OF ACTION AROSE.
14.3 Essential Purpose. The parties agree that the limitations set forth in this Section 14 shall apply even if this Agreement or any limited remedy specified herein is found to have failed of its essential purpose. These limitations are integral to the calculation of fees in connection with the license of the Tenjin Platform, and were Tenjin to assume any further liability, such consideration would out of necessity been substantially increased.
15.1 Notices. Tenjin may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to You via email notice, written or hard copy notice, or through posting of such notice on the Tenjin Platform, as determined by Tenjin in its sole discretion. Tenjin is not responsible for any automatic filtering You or Your network provider may apply to email notifications Tenjin sends to the email address provided by You.
15.2 Platform Modifications. We may, without prior notice, change the Tenjin Platform; stop providing the Tenjin Platform or features of the Tenjin Platform, to You or to users generally; or create usage limits for the Tenjin Platform.
15.3 Modifications to this Agreement. Tenjin may, in its sole discretion, modify or update this Agreement from time to time, and so You should review this page periodically. When Tenjin changes the Agreement in a material manner, Tenjin will update the ‘last updated’ date at the top of this page and communicate the changes to You. Your continued use of the Tenjin Platform after notice of any such change constitutes Your acceptance of the terms of the amended Agreement. If You do not agree to any of these terms or any future terms, do not use or access (or continue to access) the Tenjin Platform.
15.4 Assignment. Neither party may assign this Agreement without the other party’s prior written consent, provided, however, that Tenjin may assign this Agreement without Your prior written consent to any entity that acquires all or substantially all of the business or assets of Tenjin, whether by merger, reorganization, acquisition, sale or otherwise. Any assignment made in conflict with this provision shall be void, and this Agreement shall benefit and bind the permitted successors and assigns of the parties.
15.5 Relationship of Parties. Tenjin and Your relationship is solely that of independent contractors, and this Agreement will not establish any partnership, joint venture, employment, franchise or agency between Tenjin and You. Neither Tenjin nor You will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.
15.6 Export Control. You understand and acknowledge that the Tenjin Platform and technology are subject to regulation by agencies of the United States, including, but not limited to, the U.S. Department of Commerce, which prohibit export or diversion of certain products and technology to certain countries. Any and all obligations of Tenjin to provide the Tenjin Platform and technology shall be subject in all respects to such laws and regulations as shall from time to time govern the license and delivery of technology and products abroad by persons subject to the jurisdiction of the United States, including without limitation the U.S. Export Administration Act of 1979, as amended, any successor legislation, and the Export Administration Regulations issued by the U.S. Department of Commerce, Bureau of Export Administration. You represent and warrant that You will comply with the U.S. Export Administration Regulations and other laws and regulations governing exports in effect from time to time.
15.7 U.S. Government-restricted Rights. If the Tenjin Platform is licensed to the United States government or any agency thereof, then the Tenjin Platform will be deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFARS Section 227.7202 and FAR Section 12.212, as applicable. Any use, reproduction, release, performance, display or disclosure of the Tenjin Platform and any accompanying Documentation by the U.S. Government will be governed solely by this Agreement and is prohibited except to the extent expressly permitted by this Agreement.
15.8 Counterparts. This Agreement may be executed in counterparts, each of which so executed will be deemed to be an original and such counterparts together will constitute one and the same agreement.
15.9 Governing Law; Arbitration. This Agreement shall be governed by the laws of the State of California, excluding its conflict of laws rules. The parties agree that the United Nations Convention for the International Sale of Goods is excluded in its entirety from this Agreement. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in San Francisco County, California before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. The arbitrator’s decision shall be based upon the substantive laws of the State of California without regard to its principles of conflicts of law. Arbitration proceedings shall be conducted in English and shall be conducted in a manner that preserves confidentiality. The arbitrator’s decision shall follow the plain meaning of the relevant documents and shall be final and binding. The award rendered by the arbitrator(s) may be confirmed and enforced in any court having jurisdiction thereof. Notwithstanding any of the foregoing, nothing herein shall preclude Tenjin from seeking any injunctive relief or other provisional remedy in U.S. state or federal courts for protection of its intellectual property rights (including the rights of its licensors), and You agree to exclusive jurisdiction of the state and federal courts located in Santa Clara County, CA, and waive any jurisdictional, venue or inconvenient forum objections to such courts.
15.10 Waiver. Any waiver of the provisions of this Agreement or of a party’s rights or remedies under this Agreement must be in writing to be effective. Failure, neglect, or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time, will not be construed and will not be deemed to be a waiver of such party’s rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice such party’s right to take subsequent action. Except as expressly stated in this Agreement, no exercise or enforcement by either party of any right or remedy under this Agreement will preclude the enforcement by such party of any other right or remedy under this Agreement or that such party is entitled by law to enforce.
15.11 Severability. If any provision of this Agreement, or portion thereof, is found to be invalid, unlawful or unenforceable to any extent, such invalid provision or portion thereof will be severed from the remaining provisions, which will continue to be valid and enforceable to the fullest extent permitted by law.
15.12 Force Majeure. Neither party shall be in default if its failure to perform any obligation under this Agreement is caused by supervening conditions beyond that party’s reasonable control, including acts of God, civil commotion, war, strikes, labor disputes, third party Internet service interruptions or slowdowns, vandalism or “hacker” attacks, acts of terrorism or governmental demands or requirements.
15.13 Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes all prior or contemporaneous agreements and understandings between the parties relating to the subject matter hereof.