ILLUMINOTE Terms of Services
Last Updated October 8, 2021
BY ACCEPTING THESE TERMS OF SERVICE, ORDERING OUR SERVICES OR USING OUR SERVICES, YOU UNDERSTAND THAT THIS IS A LEGALLY BINDING AGREEMENT BETWEEN YOU AND ILLUMINOTE AND ITS AFFILIATES AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS HEREIN. PLEASE READ THESE TERMS OF SERVICE IN THEIR ENTIRETY. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, DO NOT ACCESS OR USE OUR SERVICES.
THESE TERMS OF SERVICE CONTAIN IMPORTANT TERMS AND CONDITIONS THAT AFFECT YOU AND YOUR USE OF THE SERVICES, INCLUDING A PROVISION REGARDING BINDING ARBITRATION OF DISPUTES AND A WAIVER OF CERTAIN RIGHTS TO JURY TRIALS AND/OR CLASS ACTIONS. PLEASE READ THE “DISPUTE RESOLUTION” SECTION (SECTION 11.2) IN ITS ENTIRETY.
ILLUMINOTE, a California corporation (“Illuminote,” “we,” “us” or “our”), is pleased to provide you access to, and use of certain platform services, software, websites, documentation, mobile applications (“Apps”), and content relating to our DARCI™ service (collectively, the “Services”). The Services are more fully described at https://www.illuminote.io/ (the “Website”). These Terms of Services (“Terms”) apply to your purchase, access to, and use of, any Services. These Terms do not alter in any way the terms or conditions of any other agreement you may have with Illuminote for products, services or otherwise. If you are using the Services on behalf of any entity, as used herein “you” and “your” refer to you and any entity on whose behalf you are using the Services (the “Entity”).
Illuminote may change or modify these Terms on a going-forward basis at any time and in our sole discretion. Illuminote will provide notice of each such change as appropriate, such as by sending an email notification to an address you have provided, providing notice through the Services and/or updating the “Last Updated” date at the top of these Terms. Your or your Entity’s continued use of the Services will confirm your acceptance of the revised Terms. If you do not agree to the revised Terms, you must stop using the Services. We encourage you to review the Terms from time to time to ensure you understand the terms and conditions that apply to your access to, and use of, the Services.
1. DEFINITIONS
The terms in this Section have the meanings described below. Other terms may be defined within the context of these Terms.
“Derived Data” means all data and information created, processed, or provided to you by Illuminote in performing the Services, or that result from the Member Data provided to Illuminote through the Services.
“Documentation” means any documentation distributed by Illuminote or its affiliates pertaining to the Services, including without limitation any accompanying or online user guides or technical information relating to the Services, User documentation, and technical data sheets, in each case, as updated or amended by or on behalf of Illuminote.
“Member” means you or an individual who is an employee or contractor of the Entity who is authorized to use the Services and anyone or any entity you authorize to access your account (each an “Authorized Member”).
“Member Data” means all documents, data and information inputted by you to the Services.
“Personal Data” includes payment card data or other financial account information, driver’s license numbers, birthdates, social security numbers, government-issued identifiers, passwords or other log-in credentials, racial or ethnic origin, political opinions, religious or philosophical beliefs, genetic data, biometric data, data concerning health, and data concerning a natural person’s sex life or sexual orientation or similarly sensitive information.
2. OUR SERVICES
2.1.Grant of Limited License. On the condition that you comply with your obligations under these Terms, and subject to additional terms of any third-party licenses applicable to third-party software included in the Services, Illuminote hereby grants to you a limited, revocable, non-exclusive, non-transferable (except as provided in Section 12.9), right to access and use the Services and Documentation solely in connection with your personal or internal business purposes. Other than as expressly granted in these Terms, no other rights are granted, including without limitation to any and all Illuminote patents, copyrights, moral rights, trade secrets, trademarks, service marks, publicity rights, and other proprietary rights (whether or not perfected or perfectible) (collectively, “Intellectual Property Rights”). All ownership rights, title, interest and Intellectual Property Rights in and to the Services remain in Illuminote and/or its licensors. If you do not comply with these Terms, Illuminote may revoke any license granted in these Terms and limit your access to the Services. Any use of the Services that exceeds the rights expressly granted in these Terms is strictly prohibited and constitutes a violation of these Terms, which may result in the suspension or termination of your right to access and use the Services.
2.2.Modification. Illuminote may change, modify, add to or discontinue or retire any aspect or feature of the Services at any time without any obligation to give you notice of any changes. Without notice to you, Illuminote may, but is under no obligation to, release upgrades, fixes or new versions of the Services, although these upgrades may not be consistent across all platforms and devices.
2.3.Removal of Access. Illuminote may suspend or deny access to the Services to any Member. Illuminote may immediately suspend or terminate your access to the Services or any part thereof if: (a) you breach or violate these Terms or other incorporated agreements; (b) Illuminote discontinues or materially modifies the Services; (c) there is an unexpected technical or security issue or problem; or (d) you engage in fraudulent or illegal activities while using the Services. Illuminote may take these measures in its sole discretion and without any liability to you or any third party.
2.4.Defects and Availability. Illuminote uses commercially reasonable efforts to maintain the Services, however, Illuminote is not responsible for any defects or failures associated with the Services, any part thereof, or any damages (either direct or indirect) that may result from any such defects or failures. The Services may be inaccessible or inoperable for any reason, including, without limitation: (a) equipment malfunctions; (b) maintenance procedures or repairs; or (c) causes beyond Illuminote’s reasonable control or which could not reasonably foreseen. You understand that the Services are provided over the Internet and hosted by a third-party provider, so the quality and availability of the Services may be affected by factors outside of Illuminote’s control. The Services are not intended to be available 100% of the time and Illuminote does not make any guarantees regarding the reliability or availability of the Services and will not be liable to you or any third party for damages or losses related to the Services being unavailable.
2.5.Third Party Materials. “Third Party Materials” means software, interfaces, and firmware, licensed by Illuminote from third parties and which are incorporated into or distributed as part of the Services. Because Illuminote has no control over Third Party Materials, Illuminote is not responsible for the availability of Third Party Materials, and Illuminote does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from Third Party Materials or for any privacy or other practices of the third parties operating those websites or providing those materials. Illuminote is not responsible or liable, directly or indirectly, and you shall hold Illuminote harmless for any damage or loss caused or alleged to be caused by, in connection with or resulting from your use of or reliance upon any Third Party Materials available on or through any website or resource. You are responsible for reviewing any separate terms of use and privacy policies governing the use of Third Party Materials.
2.6.Ownership of Intellectual Property. Unless otherwise specifically noted in these Terms, images, trademarks, service marks, logos and icons displayed on the Services, the App or the Website, are the property of Illuminote and/or its licensors and may not be used without its prior written consent. The Services, including all Illuminote systems, databases, information, data, documents, materials, works, and all intellectual property rights in and to the foregoing (collectively, the “Illuminote Materials”) shall at all times remain the exclusive intellectual property of Illuminote and its third-party licensors. You are not acquiring any Intellectual Property Rights in or to the Illuminote Materials other than a non-exclusive right to access and use the Services or the website solely in accordance with the terms of these Terms. The Illuminote Materials are deemed intellectual property and may not be reproduced, recreated, sublicensed, modified, accessed, or used in any manner or disseminated or distributed to any other party in violation of these Terms. Any unauthorized use of any Illuminote Materials, whether owned by Illuminote or any other parties, may violate copyright laws, trademark laws, intellectual property, privacy and publicity laws and communications regulations and statutes. Any third-party software included in the Illuminote Materials is licensed and subject to the additional terms of the applicable third-party license. Trademarks owned by third parties are the property of those respective third parties.
2.7.Access. You acknowledge that third parties are allowed to access non-confidential certification of trust information with respect to your Member Data.
3. DISCLAIMERS
3.1.ILLUMINOTE IS NOT A LAW FIRM AND DOES NOT PROVIDE LEGAL ADVICE. THE SERVICES ARE NOT SUBSTITUTES FOR THE ADVICE OF AN ATTORNEY. FURTHER, NO ATTORNEY-CLIENT RELATIONSHIP IS CREATED THROUGH THE USE OF THE SERVICES. ANY AND ALL COMMUNICATIONS BETWEEN YOU AND ILLUMINOTE ARE PROTECTED BY OUR PRIVACY POLICY BUT NOT BY ATTORNEY-CLIENT PRIVILEGE. THE SERVICE IS NOT A SUBSTITUTE FOR THE ADVICE OF AN ATTORNEY AND IF YOU NEED LEGAL ADVICE, YOU SHOULD CONSULT A LICENSED ATTORNEY IN YOUR JURISDICTION.
3.2.Illuminote does not review Member Data, including, without limitation, the contents of any documents uploaded by you and data you input. You are solely responsible for any errors in your Member Data.
3.3.Member Data is not registered or certified by the Services until the uploading to the Services of the relevant Illuminotarized documents is completed.
3.4.If you designate any attorney as an Authorized Member, that designation does not, in and of itself, create an attorney-client relationship between you and that attorney, or any other duty or liability. Such a relationship can be created only through an independent engagement. Absent such an engagement, you shall not rely on any communication from any such attorney Authorized Member (an “Unengaged Attorney”) as legal advice and shall make any relevant determination independently or under the advice of engaged counsel. Each Unengaged Attorney you designate is a third party beneficiary of this Section 3.3.
4. CLIENT RESPONSIBILITIES, REPRESENTATIONS, AND RESTRICTION
4.1.Account Registration and Delegation. Access to the Services requires you to be registered with Illuminote via the online registration form. This form requires you to provide certain requested information about yourself. Once Illuminote receives that information, you will be provided with an account and login information, including a username and password, to successfully complete the registration process. As the account owner, you and your Authorized Members are the only people and entities authorized to access and use your account and your Member Data. You are solely responsible for any errors in the information you provide us in connection with your online registration and any errors in the Member Data.
4.2.Unauthorized Use and Information Changes. You must immediately notify Illuminote if your registration information changes or you learn of or have reason to suspect any unauthorized use of your account or any other breach of security. You are responsible for maintaining the confidentiality of your username and password and are fully responsible for all activities that occur under your username and password. While in some situations the Services will send alerts to designated individuals with respect to activity on your account, Illuminote shall have no liability with respect to any failure by the Services to send such an alert.
4.3.Storing Credentials. You are responsible for any damages to Illuminote or the Services resulting from unauthorized access to the Services from your account and Illuminote will have no liability to You or any third party for damages or loss related to such unauthorized access or use.
4.4.Representations. You hereby represent and warrant that: (a) you have the legal capacity and authority to enter into and perform your obligations under these Terms and are at least 18 years old; (b) you will comply with these Terms and any other agreement to which you are subject that is related to your use of the Services or any part thereof; (c) you have provided and will maintain accurate and complete information, including, without limitation, your legal name, email address, and any other information Illuminote may reasonably require; (d) your access to and use of the Services or any part thereof does not constitute a breach or violation of any other agreement, contract, terms of use or any law or regulation to which you are subject; (e) you will not use the Services in order to gain competitive intelligence about Illuminote, the Services, or any product or service offered via the Services or to otherwise compete with Illuminote; and (f) the Member Data you provide does not violate the rights of any third party, including, without limitation, the intellectual property, privacy or publicity rights of any third party, and you have acquired the appropriate consent of all third parties (if required) to provide the Member Data through our Services.
4.5.Restrictions. You may not: (a) license, sublicense, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make available to any third party any portion of the Services in any way; (b) copy), modify, adapt, alter, translate, create derivative works, reverse engineer, decompile, disassemble, or otherwise attempt to learn the source code, communications protocol, structure, or ideas upon which the Services are based; (c) use the Services to develop a competing service or product; (d) use any device, software, or routine intended to damage or otherwise interfere with the proper functioning of the Services, servers, data centers, or networks connected to the Services or take any other action that interferes with any other person’s use of the Services; (e) decrypt, transfer, create Internet links to the Services, or “frame” or “mirror” the Services on any other server or wireless or Internet-based device; (f) use or merge the Services or any component thereof with other software, databases, or services not provided or approved by Illuminote; (g) circumvent or attempt to circumvent any electronic protection measures in place to regulate or control access to the Services, or remove, obscure, or alter any notices or indications of any Intellectual Property Rights, any trade names, trademarks, service marks, logos, trade dress, and any other distinctive or proprietary symbols, labels, designs, or designations, or any electronic notices; (h) use the Services for any fraudulent or otherwise unlawful purposes or in violation of these Terms; (i) develop, distribute, or sell any software or other functionality capable of launching, being launched from, or otherwise integrated with the Services; (j) use any bot, spider, or other automatic or manual device or process for the purpose of harvesting or compiling information on the Services for any reason; (k) access or attempt to access any other account or use the Services in a way that prevents or inhibits another Member from enjoying the Services; (l) use any Derived Data made available through the Services in any manner that misappropriates any trade secret or infringes any copyright, trademark, patent, rights of publicity, or other proprietary right of any party; (m) introduce into the Services any virus, rogue program, Trojan horse, worm or other malicious or intentionally destructive code, software routines, or equipment components designed to permit unauthorized access to or disable, erase, or otherwise harm the Services, or perform any such actions; (n) introduce into the Services any back door, time bomb, drop dead device, or other software routine designed to disable a computer program automatically with the passage of time or under the positive control of an unauthorized person; (o) delete, modify, hack, or attempt to change or alter the Services, Derived Data, notices on the Services; (p) connect to or access any Illuminote computer system or network other than the Services; (q) impersonate any other person or entity to use or gain access to the Services; or (r) conduct or otherwise participate in any distributed denial-of-service attack or similar malicious attack intended or designed to artificially delay, disrupt or otherwise adversely affect the Services or any other Member’s access to or use of the Services. Further, by using the Services, you confirm that you will not input, and will not solicit Members to input, Personal Data or otherwise use the Services in a manner that could give rise to obligations under GDPR, CCPA or any other applicable laws relating to the Personal Data or personal information. Illuminote reserves the right to investigate and prosecute violations of any of the above to the fullest extent of the law. Illuminote may involve and cooperate with law enforcement authorities in prosecuting Users who violate these Terms.
5. DATA RIGHTS, USES, AND LIMITATIONS
5.1.Member Data. You hereby grant to Illuminote a nonexclusive, worldwide, royalty-free, fully-paid, transferable license to host, cache, record, copy, view, and display Member Data for the purposes of (a) providing the Services to you: (b) internal use by Illuminote and its affiliates; (c) any purpose related to the billing, activation, provision, maintenance, upgrades, updates, deactivation and/or use of the Services and/or related products and/or services; and (d) any purposes permitted by any applicable law. Except as set forth in these Terms, as between Illuminote and you, you retain all right, title, and interest in and to Member Data. You have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and right to use such Member Data, and except for Illuminote’s gross negligence or willful misconduct, Illuminote is not responsible or liable for the unauthorized access to, alteration of, or deletion, correction, destruction, corruption, damage, loss or failure to secure or store yours or your User’s Data. Illuminote may, but is not required to, refuse to post or to remove any information or materials, in whole or in part, that Illuminote believes to be unacceptable, undesirable, or in violation of these Terms or the rights of third parties.
5.2.Member Data Representations. You represent, warrant, and covenant that: (a) you are the owner or authorized licensee of the Member Data and have the right to grant the rights set forth herein; (b) you have obtained all consents necessary under applicable law to disclose Member Data to Illuminote; and (c) you will not publish, post, upload, record, or otherwise distribute or transmit any data or other material that: (i) infringes or would infringe any copyright, patent, trademark, trade secret or other proprietary right of any party, or any rights of publicity or privacy of any party; (ii) violates any law, statute, ordinance, or regulation; (iii) is inappropriate, profane, defamatory, libelous, obscene, indecent, threatening, harassing, or otherwise unlawful; (iv) is harmful to minors or otherwise pornographic; (v) is materially false, misleading, or inaccurate; and/or (vi) contains information for which you not have the right to permit Illuminote to access and process any Member Data.
5.3.Privacy. Our privacy policy (the “Privacy Policy”), which is available at www.illuminote.io/privacy, is incorporated into these Terms and sets forth how we treat data, including how we collect, use and disclose information. In addition, certain third parties may collect information about you when you use the Services. These third parties have their own privacy policies and will treat the information they collect about you according to these policies. We encourage you to review these privacy policies before providing any information to third parties. We are not responsible for the accuracy of any third party’s privacy policy or for ensuring that third parties comply with their privacy policies.]
5.4.Derived Data. Illuminote may generate or develop information and data (collectively, the “Derived Data”) resulting from the manipulation or analysis of any of the Member Data, along with any other collected data based upon its operation and provision of the Services, along with any associated databases, algorithms, external data, calculations and other processes, methods or tools used by Illuminote and the Services. Derived Data is deemed to include the aggregated, de-identified and statistical information collected by Illuminote from the operation of the Services and processing, manipulation and analysis of Member Data. All Derived Data is (or by these Terms becomes) the property of Illuminote. Illuminote may retain and use Derived Data for the purposes of providing the Services to You, and for conducting research, development and product improvement efforts. Illuminote may share Derived Data with any third-party service providers providing services to Illuminote or collaborating with Illuminote. Illuminote may use and share with third parties any Derived Data in aggregated or de-identified form such that the source of the data cannot be identified. Illuminote may, directly or indirectly, commercially exploit Derived Data for commercial purposes, subject to the restrictions set forth above and in these Terms.
5.5.Feedback. You may provide feedback, information, or materials regarding the Services or any other Illuminote products or services (collectively, “Feedback”). By submitting Feedback to Illuminote, you agree to assign, and hereby irrevocably assign to Illuminote, all right, title, and interest, on a worldwide basis, in and to the Feedback and all copyrights, moral rights, and other Intellectual Property Rights embodied in the Feedback. Illuminote will be free to use, copy, distribute, publish and modify the Feedback on an unrestricted basis, without compensation to You.
6. FEES AND PAYMENT
6.1.Subscriptions, Renewal, and Billing.
6.1.1. We may offer the Services as a one-time purchase or on a subscription basis. If you elect to use Services that are offered on a subscription basis, your initial purchase will provide you access to the Services for an initial service period (together with any renewals, the “Subscription Period”). Your paid subscription will automatically renew at the end of the initial Services period and, depending on your subscription, will automatically renew on a monthly or annual basis each year thereafter. Your payment method will be charged upon each renewal of your paid subscription.
6.1.2. We may send a courtesy reminder to your account’s email address before any automatic renewal. Unless required by applicable law, we are not required to provide such a notice. Your failure to read, your failure to receive, or our failure to send any such notice creates no liability for us or any right to rescind an automatic renewal payment.
6.1.3. If you wish to cancel the automatic renewal of your paid subscription, you must cancel your plan through your account or by providing notice to memberservices@illuminote.io. Any such cancellation must be made at least one day before the next automatic renewal. There are no refunds for any unused portion or time remaining in a subscription.
6.1.4. We may change the renewal price for your paid subscription at any time upon notice to you. Any changes made will only take effect upon the next automatic renewal following the provision of notice to you regarding the change in renewal price. If you do not wish to renew at the changed renewal price, you must cancel your plan through your account or by providing notice to memberservices@illuminote.io. Any such cancellation must be made at least one day before the next automatic renewal.
6.1.5. We may store your payment method and related payment information. You authorize us to automatically charge your payment method for any automatic renewal payments. You may update your payment method through your account or by contacting us at memberservices@illuminote.io. If any attempt to charge your payment method is not successful or if the automatic renewal payment fails for any reason, we may suspend or terminate your access to the Services without notice to you. Until all amounts due have been paid in full, you shall keep your payment information current at all times.
6.1.6. All amounts due are payable in U.S. dollars. Illuminote may invoice you electronically or by paper invoice. You must notify Illuminote within 30 days of the receipt of the invoice of any billing errors thereon. If you do not notify Illuminote within this time, Illuminote is not required to correct the error or make adjustments to your account and you hereby waive any claim, allegation or contention with respect to that invoice. Illuminote will not issue refunds for fees paid for your Services account, even for periods of inactivity.
6.2.Payment Terms. You shall pay to Illuminote all applicable Fees due for the Services in accordance with these Terms and any applicable amendment with any applicable taxes required. Any payments more than 30 days overdue will bear a late payment fee at an annual rate of 12% compounded monthly, or, if less, the highest amount permitted by law. You are responsible for payment for all activity by Authorized Members and third parties who access or use the Services through your account. You are responsible for all incidental charges related to using the Services such as charges for Internet access, third party software licenses, or other data transmission fees.
6.3.Taxes. Services fees are exclusive of all invoice and bank processing fees, taxes, levies, or duties imposed by taxing authorities, and you are responsible for payment of all such fees, taxes, levies, or duties, excluding only U.S. income (federal or state) taxes imposed on Illuminote, including by way of example and not limitation, import duties and fees, sales, use, transfer, excise, value-added, and gross receipts. If you are required to withhold any portion of service fees due to payments to banks or taxing authorities, (a) you shall do so and shall indemnify Illuminote for any liability resulting from your failure to make those withholdings, and (b) Illuminote may adjust the pricing of the Services so that you are responsible for payment to Illuminote of the full amount for the Services, net of any such withholdings, so that the net amounts received by Illuminote after those withholdings is equal to what was invoiced.
6.4.Rate Change. Illuminote reserves the right to change the price of the Services upon notice to you. Such a notice may be provided at any time by posting the changes to our website, to your account, or via email. Illuminote is not liable to you or to any third party for any modifications, price changes, or suspension or discontinuation of the Services.
7. TERM AND TERMINATION
7.1.You are bound by these Terms until the Subscription Period ends without renewal.
7.2.If these Terms terminate for any reason and you are current with all payments for prior use of the Services, you will have 30 days from the date of that termination to download all of your Member Data. Thereafter, unless required by law, Illuminote may delete any of your Member Data it has stored.
8. NO WARRANTY; DISCLAIMER
8.1.ILLUMINOTE MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, AND NON-INFRINGEMENT. THE SERVICE IS PROVIDED BY ILLUMINOTE, IT SUPPLIERS AND ITS LICENSORS “AS IS” AND “AS AVAILABLE.” YOU ASSUME ALL RISK FOR YOUR USE OF THE SERVICE. IN NO EVENT DOES ILLUMINOTE GUARANTEE ANY RESULTS. ILLUMINOTE DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION THEREOF, IS ACCURATE, ERROR OR BUG FREE, THAT YOUR USE OF THE SERVICE WILL BE UNINTERRUPTED, OR THAT THE SERVICE’S OPERATION WILL NOT NEGATIVELY AFFECT OTHER SOFTWARE OR HARDWARE. THIS SECTION APPLIES TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW. THE SERVICE IS OFFERED BY ILLUMINOTE FROM ITS FACILITIES IN THE UNITED STATES OF AMERICA. ILLUMINOTE MAKES NO REPRESENTATIONS THAT THE SERVICE IS APPROPRIATE OR AVAILABLE FOR USE IN OTHER COUNTRIES. THOSE WHO ACCESS OR USE THE SERVICE FROM OTHER JURISDICTIONS DO SO AT THEIR OWN RISK AND ARE RESPONSIBLE FOR COMPLIANCE WITH ALL APPLICABLE LAWS.
9. INDEMNIFICATION
9.1.Your Indemnification. You shall defend, indemnify, and hold harmless each of Illuminote, its affiliates and respective officers, employees, consultants, shareholders and representative from and against any and all claims, liabilities, damages, and/or costs (including attorneys’ and expert witness fees, costs and other expenses) arising out of or related to any actual or alleged claims involving or resulting from: (a) violation of these Terms or applicable law, rule or regulation by you or any person accessing or using the Services by or through you; (b) infringement or misappropriation by you, or any person accessing or using the Services by or through you, of any intellectual property or privacy or other right of any person or entity; (c) your Authorized Members, or arising out of or relating to your relationship with any of your Authorized Members; (d) Member Data in any manner; or (e) you or your Authorized Members’ breach of any applicable privacy or data protection law, rule or regulation. Illuminote may, at its own expense and its sole discretion, assume the exclusive defense and control of any matter otherwise subject to indemnification by you.
10. LIMITATION OF LIABILITY
10.1.Limitation. In no event does Illuminote’s aggregate liability under these Terms exceed the total amount paid from you to Illuminote as consideration for use of the services during the 12 months immediately preceding the event giving rise to that liability. In no event is Illuminote or its officers, directors, employees, agents, or representatives liable for any claim attributable to errors, omissions, or other inaccuracies in the Services, or any indirect, special, incidental, consequential, exemplary, or punitive damages related to or arising from your use, misuse, or inability to use the Services, including but not limited to damages for lost data, lost profits, loss of legal rights, or costs of procurement of substitute goods or services, personal injury, or property damage of any nature, unauthorized access to the servers, or server unavailability, however caused under any theory of liability and whether or not Illuminote was aware or advised of the possibility of that damage. You acknowledge that Illuminote would not enter into these Terms unless it could rely on the limitations described in this paragraph.
10.2.FOR CALIFORNIA RESIDENTS. IF YOU ARE A CALIFORNIA RESIDENT OR COULD OTHERWISE CLAIM THE PROTECTIONS OF CALIFORNIA LAW, YOU FURTHER EXPRESSLY WAIVE THE PROVISIONS OF SECTION 1542 OF THE CALIFORNIA CIVIL CODE, WHICH READS AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.” YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND SECTION 1542 OF THE CALIFORNIA CIVIL CODE, AND YOU HEREBY EXPRESSLY WAIVE AND RELINQUISH ALL RIGHTS AND BENEFITS UNDER THAT SECTION AND ANY LAW OF ANY JURISDICTION OF SIMILAR EFFECT WITH RESPECT TO YOUR RELEASE OF ANY CLAIMS YOU MAY HAVE AGAINST ILLUMINOTE.
11. GOVERNING LAW, JURISDICTION, AND DISPUTE RESOLUTION
11.1.Choice of Law. These Terms and the rights of the parties hereunder are governed by and construed in accordance with the laws of the State of California, exclusive of conflict or choice of law rules.
11.2.Dispute Resolution. You and Illuminote each hereby waive any right to a jury trial, or the right to have any dispute, controversy, or claim arising out of or related to these Terms (each a “Dispute”) resolved in any court, and instead you and Illuminote each accept the use of binding arbitration. Except that either party may seek equitable or similar relief from any court of competent jurisdiction, any Dispute that cannot be settled amicably by the parties shall be finally and confidentially settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules then in force by one or more arbitrators appointed in accordance with those rules. The place of arbitration shall be San Francisco, California. The arbitration shall be governed by the laws of the State of California. Judgment on the award may be entered in any court of competent jurisdiction. The prevailing party is entitled to recover costs and attorney’s fees.
11.3.No Class Arbitrations, Class Actions, or Representative Actions. You and Illuminote agree that any Dispute is personal to you and Illuminote, and that each Dispute shall be resolved only by an individual arbitration and shall not be brought as a class arbitration, a class action, or any other representative proceeding. Neither party agrees to class arbitration, or an arbitration where a person brings a Dispute as a representative of any other person or persons. Neither you nor Illuminote agrees that a Dispute can be brought as a class or representative action whether inside or outside of arbitration, or on behalf of any other person or persons.
12. MISCELLANEOUS
12.1.Notices. Each notice given under these Terms is effective only if in writing and in the English language and emailed to Illuminote at memberservices@illuminote.io, or if to you, to the email or physical address associated with your account. You hereby consent to receiving any notices relevant to the Services or these Terms by email without requiring a handwritten signature for that notice to be effective.
12.2.Force Majeure. Neither party is liable for failing or delaying performance of its obligations (except for the payment of money) resulting from any condition beyond its reasonable control, including but not limited to, governmental action, acts of terrorism, pandemic, natural disasters, earthquake, fire, flood, or other acts of God, labor conditions, power failures, and Internet disturbances.
12.3.Consent to Do Business Electronically. You shall not to contest the authorization for, or validity or enforceability of, electronic records and electronic signatures, or the admissibility of copies thereof, under any applicable law.
12.4.Compliance with Laws and Export Control. You shall abide by all applicable local, state, national, and foreign laws, rules, treaties, and regulations in connection with your use of the Services, including those related to data privacy, international communications and the transmission of technical or personal data. You acknowledge that Illuminote may discontinue provision or performance of the Services or terminate the license to the Services granted hereunder following any changes in any relevant applicable law, which in the sole discretion of Illuminote, makes performance impossible, or illegal. You further acknowledge that the Services and related technology and technical data (collectively “Controlled Technology”) may be subject to the import and export laws of any country where Controlled Technology is imported or re-exported, including U.S. Export Administration Regulations. You shall not export, re-export, import, or provide any Controlled Technology to any prohibited country (such as embargoed countries), entity, or person (such as designated nationals) for which a license or other governmental approval is required or is otherwise prohibited. All Controlled Technology is prohibited for export or re-export to prohibited countries as listed at: https://home.treasury.gov/policy-issues/financial-sanctions/specially-designated-nationals-and-blocked-persons-list-sdn-human-readable-lists or to any country subject to similar trade sanctions.
12.5.Equitable Relief. You agree that your breach of the terms and responsibilities under these Terms would cause irreparable harm and significant injury to Illuminote which would be both difficult to ascertain and for which there is no adequate remedy at law and that Illuminote is entitled, in addition to any other rights and remedies it may have, to injunctive relief (without the requirement of posting bond), specific performance, and other equitable remedies to restrain any threatened, continuing, or further breach, or other equitable relief without prejudice to any other rights and remedies Illuminote may have under these Terms.
12.6.Entire Agreement. These Terms and the Privacy Policy constitute the entire agreement between you and Illuminote with respect to the subject matter hereof and supersedes all prior agreements, both oral and written. Illuminote may update these Terms at any time without notice to you. Illuminote will provide notice of any changes to these Terms and may fulfill that obligation to provide notice by a posting on the Illuminote website. You can determine when the Agreement was last revised by referring to the “Last Updated” legend at the top of the first page. UNLESS OTHERWISE STATED IN THE AMENDED VERSION OF THE AGREEMENT, ANY CHANGES TO THESE TERMS ARE EFFECTIVE IMMEDIATELY UPON POSTING. Your continued use of the Services will constitute your agreement to any new provisions within the revised Agreement.
12.7.Waiver; Severability. Either party’s failure to enforce any provision of these Terms is not a waiver of its right to enforce them. If any term or provision of these Terms will be held to be invalid, illegal, or unenforceable, the remaining terms and provisions of these Terms will remain in full force and effect, and such invalid, illegal, or unenforceable term or provision will be deemed not to be part of these Terms.
12.8.Publicity. You hereby consent to inclusion of your name and trademarks or service marks in Illuminote Member lists that may be published as part of Illuminote’s marketing and promotional efforts. Illuminote may identify you as a Member when referring to lists of its Members.
12.9.Assignment. You may not assign, transfer, or sell (voluntarily or by operation of law) your rights or obligations under these Terms without the prior written consent of Illuminote. Any purported assignment without Illuminote’s consent will be void and will constitute a breach of these Terms. Illuminote may assign these Terms or delegate or subcontract its obligations under these Terms at any time.
12.10.Survival. The provisions of these Terms including, without limitation, provisions governing ownership and use of intellectual property, representations, disclaimers, warranties, liability, indemnification, governing law, jurisdiction, venue, remedies, rights after termination, and interpretation of these Terms, survive the expiration or termination of these Terms for their full statutory period.
