Directed Edge - Terms of Service

Directed Edge Terms of Service

Effective Date: 3 August 2009

Last Modified: 18 November 2009

1. Introduction

These Terms of Service govern your access to and use of Directed Edge's website (the “Site”) and any services and/or software provided through the Site or by Directed Edge (the “Services”).

These Terms of Service limit Directed Edge's liability and obligations to you, grant Directed Edge certain rights and allow Directed Edge to change, suspend or terminate your access to and use of the Site and Services. Your access to and use of the Site and/or Services are expressly conditioned on your compliance with these Terms of Service. By accessing or using the Site and/or Services you agree to be bound by these Terms of Service.

YOU UNDERSTAND THAT BY CLICKING THE “I AGREE” BUTTON, BY USING THE SITE AND/OR SERVICES OR YOUR ACCOUNT YOU ARE AGREEING TO BE BOUND BY THESE TERMS OF SERVICE. IF YOU DO NOT ACCEPT THESE TERMS OF SERVICE IN THEIR ENTIRETY, YOU MAY NOT ACCESS OR USE THE SITE OR SERVICES.

If you agree to these Terms of Service on behalf of a business, you represent and warrant that you have the authority to bind that business to these Terms of Service and your agreement to these terms will be treated as the agreement of the business. In that event, “you ” and “your” will refer and apply to that business.

2. Services

2.1. Description of Services

A basic description of the Service interaction is as follows:

(a)You install widgets or plug-ins provided by Directed Edge within the pages of your site so that the Service may automatically capture information about the content on those pages (the ‘Catalog’) and provide recommendations.

(b)You integrate your site with the Directed Edge Web Services API using the language bindings provided by Directed Edge or your own code so that you can manage your own recommendation database on our server.

The Services capture content metadata as well as user preference data in the form of clickstream data and other implicit and explicit data (the ‘Preference Information’). In response to the Preference Information, Directed Edge provides a set of links (’Recommendation Links’) for suggested items in the Catalog. These Recommendations Links appear in widgets and/or API calls and display discovery and personalization capabilities which Directed Edge may provide through the Services. All Recommendation Links provided by Directed Edge to users of your Sites shall be links to items contained within the latest version of the Catalog that has been processed by Directed Edge.

2.2. Attribution

All Widgets or Plugins displaying Recommendation Links shall conspicuously display a Directed Edge service graphic provided by Directed Edge that indicates that the Service is provided by Directed Edge, unless otherwise agreed upon by Directed Edge. The graphic shall link to the Directed Edge site or such other address as Directed Edge may designate from time to time during the Term.

2.3. Modification of Services

Unless explicitly stated otherwise, the Services may be modified or terminated at any time by Directed Edge for any reason, and without notice, without liability to you, any user, or any third party. Any new features that augment or enhance the current Service shall be subject to the Terms of Service.

2.4. Modifications of Terms

Directed Edge will notify all paying customers via email when these Terms of Service change. You may always review the most current version of the Terms of Service online at any time from within your customer dashboard. If a modification is unacceptable to you, you may cancel the Service on the Site and terminate the Terms of Service by canceling your account from within your customer dashboard. If you continue to use the Service on a Site, you will be deemed to have accepted the modifications.

2.5. Non-Exclusivity

You understand that Directed Edge will provide the Services on a nonexclusive basis, and that Directed Edge will continue to customize and provide its services to other parties for use in connection with a variety of applications.

2.6. Non-Site Use

The Services have been designed for Site-specific use in mind. If you would like to access the Services through any means other than a Site, including but not limited to through an application such as a toolbar, plug-in, or other executable code that runs on a user’s computer or through a standalone digital media player or mobile device, then you must first obtain Directed Edge’s prior written consent by contacting Directed Edge at info@directededge. com.

2.7. Government Use

If you are part of an agency, department, or other entity of the United States Government ("Government"), the use, duplication, reproduction, release, modification, disclosure or transfer of the Service is restricted in accordance with the Federal Acquisition Regulations as applied to civilian agencies and the Defense Federal Acquisition Regulation Supplement as applied to military agencies. The Service and the Data each are a "commercial item," "commercial computer software" and "commercial computer software documentation. " In accordance with such provisions, any use of such items by the Government shall be governed solely by the terms of these Terms of Service.

2.8. Your Service Obligations

Your Site shall receive inputs from users, which are to be forwarded by the Recommendations Code to Directed Edge. You shall be responsible for providing all hardware and software and network connectivity required to perform your obligations under the Terms of Service, including but not limited to the following: (a) implementing and maintaining the Site, (b) implementing and maintaining the interface and connectivity between the Site and the Services, and (c) receiving inputs from a user and transmitting the inputs to Directed Edge.

3. Accounts

3.1. Types of Accounts

Currently, Directed Edge offers both a restricted free account (“Free Account”) for non-commercial use and paid accounts for commercial use (“Paid Accounts”). More information on the types of accounts that Directed Edge offers and the costs involved can be found on our Website at http://www. directededge. com/pricing. Please read this document in its entirety regarding account restrictions. Directed Edge reserves the right, at any time, to change or impose fees for access to and use of the Site and/or Services.

3.2. Free Accounts

Directed Edge allows you to use the service for non-commercial purposes free of charge. Directed Edge reserves the right to terminate Free Accounts at any time, with or without notice. Without limiting the generality of the foregoing, if a Free Account is inactive for ninety (90) days, then Directed Edge may delete any or all of Your data without providing additional notice.

3.3. Paid Accounts

Directed Edge offers a range of paid accounts with different feature sets and limitations. Directed Edge accepts credit cards and will automatically charge your credit card monthly or yearly, depending upon which Paid Account you select. If any fee is not paid in a timely manner, or Directed Edge is unable to process your transaction using the credit card information provided, Directed Edge reserves the right to revoke access to your Directed Edge account and data.

3.4. Billing

The fees for your Account will be billed from the date you elect, or convert to, a Paid Account and on each monthly or yearly renewal thereafter unless and until you cancel your account. Click on the link on your "Account" page to see the commencement date for your next renewal period. Directed Edge will automatically bill your credit card each month or year on the calendar day corresponding to the commencement of your Paid Account. In the event your Paid Account began on a day not contained in a given month or year, Directed Edge will bill your credit card on the last day of such month or year. For example, if your Paid Account began on January 31st, February 28th is the next time your credit card would be billed.

You acknowledge that the amount billed each month or year may vary for reasons including, but not limited to, differing amounts due to promotional offers, differing amounts due to changes in your account, or changes in the amount of applicable sales tax, and you authorize us to charge your credit card for such varying amounts. Directed Edge may also periodically authorize your credit card in anticipation of account or related charges. All fees and charges are nonrefundable and there are no refunds or credits for partially used periods.

Should you elect to upgrade your Paid Account to a larger amount of items, links and queries, the commencement date for your next renewal period will be reset and you will be billed for the first month or year of the upgraded level of service on a pro-rata basis. For example, if you begin your monthly billed Paid Account on February 15th, your next payment would be due on March 15th. On March 22, you upgrade your Paid Account to a larger amount of items, links and queries and pay the new amount associated with the upgraded Paid Account you have selected, less the amount equal to 7 days at your previous Paid Account rate. Your next payment would then be due on April 22.

Directed Edge may change the fees and charges in effect, or add new fees and charges from time to time, but we will give you advance notice of these changes by email. If you want to use a different credit card or if there is a change in your credit card validity or expiration date, you may edit your information by accessing your "Account" page. If your credit card reaches its expiration date, your continued use of the Service constitutes your authorization for us to continue billing that credit card and you remain responsible for any uncollected amounts. It is your responsibility to keep your contact information and payment information current and updated.

3.5. Cancelling Your Account

Your Directed Edge Paid Account will continue in effect unless and until you cancel your Paid Account or we terminate it. You must cancel your Paid Account before it renews each month or year in order to avoid billing of the next month's or year's fees to your credit card. Directed Edge will bill the monthly or yearly fees associated with your Paid Account plus any applicable tax to the credit card you provide to us during registration (or to a different credit card if you change your account information).

3.6. Refund Policy

ALL ACCOUNTS ARE PREPAID AND DIRECTED EDGE DOES NOT PROVIDE REFUNDS OR CREDITS FOR ANY PARTIAL MONTHS OR YEARS.

You may cancel your Directed Edge Paid Account at anytime, and cancellation will be effective immediately. If you wish to cancel your Paid Account you may so via your "Account" page. Should you elect to cancel your Paid Account, please note that you will not be issued a refund for the most recently (or any previously) charged monthly fees.

By signing up for a Directed Edge Paid Account and providing Directed Edge with your payment account information, you agree to these payment terms and conditions.

4. Your Responsibilities

4.1. Conduct

You shall be responsible for compliance with all applicable laws, rules and regulations, if any, related to the performance of your obligations under the Terms of Service. You shall not, and shall not allow any third party to:

(a) obscure any portion of a Widget or edit, modify, truncate, filter or change the order of the information contained in or sent or received by any Widget;

(b) display any Widget in pop-up, pop-under, exit windows, expanding buttons, or animation;

(d) transfer, sell, lease, syndicate, sub-syndicate, lend, or use for co-branding, timesharing, service bureau or other unauthorized purposes any Service or access thereto

(e) directly or indirectly generate queries, or impressions of or clicks on advertisements, through any automated, deceptive, fraudulent or other invalid means (including, but not limited to, click spam, robots, macro programs, and Internet agents);

(f) modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from any Service or any other Directed Edge technology, content, data, routines, algorithms, methods, ideas design, user interface techniques, software, materials, and documentation;

(g) remove, deface, obscure, or alter Directed Edge’s copyright notice, trademarks or other proprietary rights notices affixed to or provided as a part of any Service or any other Directed Edge technology, software, materials and documentation;

(h) crawl, spider, index or in any non-transitory manner store or cache information obtained from the Services (including, but not limited to, Recommended Links, or any part, copy or derivative thereof);

(i) attempt to hack into or access without authorization any non-Site related metrics from the Service platform;

(j) create or attempt to create a substitute or similar service or product through use of or access to any of the Service or proprietary information related thereto;

(k) engage in any action or practice that reflects poorly on Directed Edge or otherwise disparages or devalues Directed Edge’s reputation or goodwill.

(l) post, publish or transmit any text, graphics, or material that: (i) is false or misleading; (ii) is defamatory; (iii) invades another's privacy; (iv) is obscene, pornographic, or offensive; (v) promotes bigotry, racism, hatred or harm against any individual or group; (vi) infringes another's rights, including any intellectual property rights; or (vii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability;

(m) access, tamper with, or use non-public areas of the Site (including but not limited to user folders not designated as 'public' or that you have not been given permission to access), Directed Edge's computer systems, or the technical delivery systems of Directed Edge's providers;

(n) attempt to probe, scan, or test the vulnerability of any system or network or breach any security or authentication measures;

(o) attempt to access or search the Site or Services with any engine, software, tool, agent, device or mechanism other than the software and/or search agents provided by Directed Edge or other generally available third-party web browsers (such as Mozilla Firefox or Microsoft Internet Explorer), including but not limited to browser automation tools;

(p) send unsolicited email, junk mail, “spam,” or chain letters, or promotions or advertisements for products or services;

(q) forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Site or Services to send altered, deceptive or false source-identifying information;

(r) attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Site or Services;

(s) interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Site; or plant malware on Directed Edge's computer system, those systems of Directed Edge's providers, or otherwise use the Site or Services to attempt to distribute malware; and/or

(t) impersonate or misrepresent your affiliation with any person or entity.

Directed Edge will have the right to investigate and prosecute violations of any of the above, including intellectual property rights infringement and Site security issues, to the fullest extent of the law. Directed Edge may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms of Service.

You acknowledge that Directed Edge has no obligation to monitor any user's access to or use of the Site and Services, but has the right to do so for the purpose of operating the Site and the Services, to ensure users' compliance with these Terms of Service, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body.

4.2. Account Security

You are responsible for safeguarding the password that you use to access the Site and Services. You agree not to disclose your password to any third party. You agree to take sole responsibility for any activities or actions under your password, whether or not you have authorized such activities or actions. You will immediately notify Directed Edge of any unauthorized use of your password. You acknowledge that if you wish to protect your transmission of data to Directed Edge, it is your responsibility to use a secure encrypted connection to communicate with and/or utilize the Site and Services.

5. Proprietary Rights

5.1. Directed Edge Rights

You acknowledge that Directed Edge owns all right, title and interest, including without limitation all Intellectual Property Rights, in and to the Services (including Directed Edge’s recommendation and personalization technology, but excluding items licensed by Directed Edge from third parties), and that you shall not acquire any right, title, or interest in or to the Services, except as expressly set forth in the Terms of Service. ‘Intellectual Property Rights’ shall mean any and all rights existing from time to time under patent law, copyright law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide.

5.2. Brand Marks

You hereby grant to Directed Edge a nontransferable, nonexclusive license during the Term to use your Brand Marks to advertise that you are using the Services. Directed Edge hereby grants to you a nontransferable, non-sublicenseable, nonexclusive license during the Term to display Directed Edge’s Brand Marks within the Widgets, without modification or distortion for the purpose of promoting or advertising that you use the Services. Directed Edge may modify Directed Edge’s Brand Marks at any time. Except as set forth in this Section 5. 2, nothing in the Terms of Service shall grant or shall be deemed to grant to one party any right, title or interest in or to the other party’s Marks. All use by you of Directed Edge’s Brand Marks (including any goodwill associated therewith) shall inure to the benefit of Directed Edge. Directed Edge, the Directed Edge logo, and Directed Edge Recommendations are trademarks of Directed Edge. ‘Brand Marks’ shall be defined as the trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of each party, respectively, as secured by such party from time to time.

5.3. Copyright Infringement

Use of the Services for purposes that encourage or induce copyright infringement is strictly prohibited. You will only upload, post, submit or otherwise transmit data and/or files: (i) that you have the lawful right to use, copy, distribute, transmit, or display; or (ii) that does not infringe the intellectual property rights or violate the privacy rights of any third party (including, without limitation, copyright, trademark, patent, trade secret, or other intellectual property right, or moral right or right of publicity).

5.4. Directed Edge Property and Feedback

All right, title, and interest in and to the Site and Services are and will remain the exclusive property of Directed Edge and its licensors, including all Intellectual Property Rights (as defined below) therein, even if Directed Edge incorporates any of your Feedback (as defined below) into subsequent versions. The Site and Services are protected by copyright, trademark, and other laws of both the United States and foreign countries. Except as expressly permitted in these Terms of Service, you may not reproduce, modify or prepare derivative works based upon, distribute, sell, transfer, publicly display, publicly perform, transmit, or otherwise use the Site or Services. You may not copy or modify the HTML or other code used to generate web pages on the Site.

All feedback, comments, and suggestions for improvements (the “Feedback”) that you provide to Directed Edge, in any form, and any contributions you make to the Site by posting content and communicating with other Directed Edge users via posts to forums on the site (“User Posts”) will be the sole and exclusive property of Directed Edge. You hereby irrevocably transfer and assign to Directed Edge and agree to irrevocably assign and transfer to Directed Edge all of your right, title, and interest in and to all of your Feedback and User Posts, including all worldwide patent rights (including patent applications and disclosures), copyright rights, trade secret rights, and other intellectual property rights (collectively, the “Intellectual Property Rights”) therein. At Directed Edge's request and expense, you will execute documents and take such further acts as Directed Edge may reasonably request to assist Directed Edge in acquiring, perfecting and maintaining its Intellectual Property Rights and other legal protections for your Feedback and User Posts. You will not earn or acquire any rights or licenses in the Site and Services or in any Directed Edge Intellectual Property Rights on account of these Terms of Service or your performance under these Terms of Service.

6. Privacy Policy

6.1. Site Registration Information

You understand and agree that Directed Edge may access, preserve, and disclose registration information regarding the Site and the contents of your account if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to comply with legal process or protect the rights, property and/or safety of Directed Edge, its affiliates or the public and that such information may contain personal information. Registration information collected by Directed Edge may be stored and processed in the United States or any other country in which Directed Edge or its agents maintain facilities. By using the Services, you consent to any such transfer of information outside of your country.

6.2. End User Information

The Services may make use of cookies as a way to identify users and associate them with their Preferences. The Services do not accept or make use of any personally identifiable information such as names or addresses. Although you may gather such information as part of your registration process, Directed Edge specifically disclaims any association of personally identifiable information with preference information. Attempts by you or third parties under your direction or control to associate personally identifiable information with Preference information without the explicit permission of your users is prohibited.

7. Warranties and Disclaimer

7.1. Your Warranties

You warrant and represent that:

(1) All information provided by you to Directed Edge in connection with the Services is true and accurate;

(2) You have read and agree to the Terms of Service,

(3) You have full power and authority to enter into the Terms of Service;

(4) Your Marks, Content, or Site do not:

(a) infringe any Intellectual Property Rights of any third party,

(b) constitute defamation, slander, libel or obscenity,

(c) result in any consumer fraud, product liability, breach of contract to which you are a party or cause injury to any third party,

(d) promote violence or contain hate speech,

(e) promote explicit or illegal activities, gambling, or the sale of tobacco or alcohol to persons under 21 years of age, or

(f) violate any applicable law, statute, ordinance, or regulations;

(5) You shall perform all of your obligations under the Terms of Service in accordance with applicable laws.

7.2. Use at Your Own Risk

Your access to and use of the Site and/or Services and is at your own risk. Directed Edge will have no responsibility for any harm to your computer system, loss or corruption of data, or other harm that results from your access to or use of the Site or Services.

7. 3. Disclaimer of Warranties

THE SITE AND SERVICES ARE PROVIDED “AS IS”, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, DIRECTED EDGE EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. YOU ACKNOWLEDGE THAT USE OF THE SITE AND SERVICES MAY RESULT IN UNEXPECTED RESULTS, LOSS OR CORRUPTION OF DATA OR COMMUNICATIONS, PROJECT DELAYS, OTHER UNPREDICTABLE DAMAGE OR LOSS, OR EXPOSURE OF YOUR DATA OR YOUR FILES TO UNINTENDED THIRD PARTIES.

DIRECTED EDGE MAKES NO WARRANTY THAT THE SITE OR SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. DIRECTED EDGE MAKES NO WARRANTY REGARDING THE QUALITY OF ANY PRODUCTS, SERVICES, OR INFORMATION PURCHASED OR OBTAINED THROUGH THE SITE OR SERVICES, OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SITE OR SERVICES.

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM DIRECTED EDGE OR THROUGH THE SITE OR SERVICES, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.

8. Indemnity

You will indemnify, defend, and hold Directed Edge harmless from any third party lawsuit or proceeding brought against Directed Edge based upon a claim that would constitute a breach of any warranty, representation, or covenant made by you under the Terms of Service, including but not limited to any third party lawsuit or proceeding brought against Directed Edge based upon a claim that any materials or products on your Site or your Brand Marks infringe any copyright, trade secret, or trademark of the third party or slanders or libels any person, firm, corporation, or association. Your indemnification will include (1) all attorneys’ fees and costs associated with the defense of such a claim, (2) all damages and costs finally awarded, and (3) the full cost of any settlement entered into by you. Directed Edge shall (1) notify you of any such claim, (2) provide you with reasonable information, assistance, and cooperation in defending the lawsuit or proceeding (to the extent requested by you), and (3) give you full control and sole authority over the defense and settlement of such claim. You will not enter into any settlement or compromise of any such claim without Directed Edge’s prior consent, which shall not be unreasonably withheld.

9. Limitation of Liability

IN NO EVENT WILL DIRECTED EDGE BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, DIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, OR FROM YOUR ACCESS TO OR USE OF, OR INABILITY TO ACCESS OR USE, THE SITE AND/OR SERVICES, OR FOR ANY ERROR OR DEFECT IN THE SITE OR SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, OR ANY OTHER LEGAL THEORY, WHETHER OR NOT DIRECTED EDGE HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. YOU SPECIFICALLY ACKNOWLEDGE THAT DIRECTED EDGE IS NOT LIABLE FOR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU. FURTHER, DIRECTED EDGE WILL HAVE NO LIABILITY TO YOU OR TO ANY THIRD PARTY FOR ANY THIRD PARTY CONTENT UPLOADED ONTO OR DOWNLOADED FROM THE SITE OR THROUGH THE SERVICES AND/OR THE FILES, OR IF YOUR DATA IS LOST, CORRUPTED OR EXPOSED TO UNINTENDED THIRD PARTIES.

FREE ACCOUNT HOLDERS: YOU AGREE THAT THE AGGREGATE LIABILITY OF DIRECTED EDGE TO YOU FOR ANY AND ALL CLAIMS ARISING FROM THE USE OF THE SITE AND/OR SERVICES IS LIMITED TO TWENTY ($20) U. S. DOLLARS. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN DIRECTED EDGE AND YOU.

PAID ACCOUNT HOLDERS: YOU AGREE THAT THE AGGREGATE LIABILITY OF DIRECTED EDGE TO YOU FOR ANY AND ALL CLAIMS ARISING FROM THE USE OF THE SITE AND/OR SERVICES IS LIMITED TO LOWER OF THE AMOUNTS YOU HAVE PAID TO DIRECTED EDGE DURING THE THREE MONTH PERIOD PRIOR TO SUCH CLAIM, FOR ACCESS TO AND USE OF THE SITE OR SERVICES, OR ONE-HUNDRED ($100) DOLLARS. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN DIRECTED EDGE AND YOU.

10. Term and Termination

10.1. Term

The term of the Terms of Service (the ‘Term’) shall commence on the date upon which you add the Service to your Site and shall continue in force thereafter, unless terminated as provided herein.

10.2. Termination

Directed Edge may change, suspend or discontinue all or any aspect of the Service, including their availability, at any time, and may terminate your use of the Service at any time. In addition, either party may terminate the Terms of Service at any time, for any reason, or for no reason including, but not limited to, if you engage in any action that reflects poorly on Directed Edge or otherwise disparages or devalues the Directed Edge’s Brand Marks or Directed Edge’s reputation or goodwill. If you desire to terminate the Terms of Service, you must remove the Service from your Site.

If you violate any of these Terms of Service, your permission to use the Site and/or Services will automatically terminate. Directed Edge reserves the right to revoke your access to and use of the Site and Services at any time, with or without cause, and with or without notice. Directed Edge also reserves the right to cease providing or to change the Site or Services at any time and without notice.

Directed Edge reserves the right to terminate Free Accounts at any time, with or without notice. Without limiting the generality of the foregoing, and without further notice, Directed Edge may choose to delete and/or reduce: (i) any or all of your data if your Free Account is inactive for 90 days; and (ii) previous versions and/or prior backups of Your Files.

10.3. Rejection of Application

Directed Edge shall have the right, in its sole discretion, to reject any request to use the Service at any time and for any reason, and such rejection shall render null and void the Terms of Service between you and Directed Edge. Directed Edge shall not be liable to you for damages of any sort resulting from its decision to reject such a request.

10.4. Effect of Termination

Upon the termination of the Terms of Service for any reason (i) all license rights granted herein shall terminate and (ii) You shall immediately remove the Service and delete any and all Directed Edge Brand Marks from the Site.

10.5. Survival

In the event of any termination or expiration of the Terms of Service for any reason, Sections 5. 1, 7, 8, 9, 10. 4, 10. 5, 10. 6 and 11 shall survive termination. Neither party shall be liable to the other party for damages of any sort resulting solely from terminating the Terms of Service in accordance with its terms.

10. 6. Remedies

You acknowledge that your breach of any of the terms and conditions contained herein may cause irreparable harm to Directed Edge, the extent of which would be difficult to ascertain. Accordingly, you agree that, in addition to any other remedies to which Directed Edge may be legally entitled, Directed Edge shall have the right to seek immediate injunctive relief in the event of a breach of such sections by you or any of your officers, employees, consultants, or other agents.

11. Miscellaneous

11.1. Non-Assignment

You may not assign your rights or delegate your obligations under the Terms of Service without Directed Edge’s prior written consent. Nothing in the Terms of Service should be construed to confer any rights to third party beneficiaries.

11.2. Notices

Any notice to Directed Edge required for or permitted by the Terms of Service shall be in writing and shall be delivered as follows with notice deemed given as indicated:

(i)by personal delivery when delivered personally,

(ii)by overnight courier upon written verification of receipt, or

(iii)by certified or registered mail, return receipt requested, upon verification of receipt. All notices to Directed Edge must be sent to the attention of the Directed Edge Legal Department as provided for below.

11.3. Governing Law and Venue

These Terms of Service and any action related thereto will be governed by and construed in accordance with the laws of the State of California without regard to conflict of law principles. Any dispute or claim arising out of or in connection with the Terms of Service shall be adjudicated in Santa Clara County, California, and each of the parties hereto waives any objection to jurisdiction and venue in such courts.

11.4. Independent Contractors

The parties are independent contractors. Neither party shall be deemed to be an employee, agent, partner or legal representative of the other for any purpose and neither shall have any right, power or authority to create any obligation or responsibility on behalf of the other.

11.5. Force Majeure

Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, earthquakes, acts of God, war, governmental action, or any other cause, which is beyond the reasonable control of such party.

11.6. Waiver

The failure of Directed Edge to require performance by you of any provision shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by Directed Edge of a breach of any provision hereof be taken or held to be a waiver of the provision itself.

11.7. Severability

If any provision of the Terms of Service is held by a court of competent jurisdiction to be contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of the Terms of Service shall remain in full force and effect.

11.8. Entire Agreement

These Terms of Service constitute the entire agreement between the parties with respect to the subject matter hereof. The Terms of Service supersede, and the terms of the Terms of Service govern, any other prior or collateral agreements with respect to the subject matter hereof.