Last Updated: 8/3/2015
Version: 1.0

 

PLEASE READ THESE TERMS OF USE (“AGREEMENT”) CAREFULLY. BY CLICKING THE “ACCEPT” BUTTON, REGISTERING FOR AN ACCOUNT, OR OTHERWISE ACCESSING OR USING THE SECUREDB SERVICE (AS DEFINED BELOW) OFFERED BY SECUREDB, INC. (“SECUREDB”), YOU REPRESENT AND WARRANT THAT YOU (1) HAVE THE AUTHORITY TO BIND THE ENTITY LICENSING THE SOFTWARE (“SUBSCRIBER”), AND (2) HEREBY AGREE TO THIS AGREEMENT.

  1. DEFINITIONS. As used in this Agreement:
    1. “Access Protocols” means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Subscriber or any Authorized Users to access the SecureDB Service.
    2. “Authorized User” means Subscriber’s employees, representatives, consultants, contractors or agents who are authorized to use the SecureDB Service on behalf of Subscriber and have been supplied user identifications and passwords for this purpose.
    3. “Documentation” means the technical materials provided or made available by SecureDB to Subscriber that describe the features, functionality or operation of the SecureDB System.
    4. “Error” means a reproducible failure of the SecureDB Service to substantially conform to the Documentation.
    5. “Error Corrections” means bug fixes or workarounds intended to correct Errors.
    6. “Intellectual Property Rights” means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.
    7. “SecureDB Service” means the Encryption as a Service delivered by SecureDB to Subscriber using the SecureDB System.
    8. “SecureDB System” means the technology, including hardware and software, used by SecureDB to deliver the SecureDB Service to Subscriber, including, but not limited to, the API (defined below).
    9. “Subscriber Content” means any content or data made available by Subscriber for use with or in, or uploaded to, the SecureDB Service.
  2. PROVISION OF SERVICES
    1. Subscription to the SecureDB Service. Subject to the terms and conditions of this Agreement, SecureDB hereby grants to Subscriber, during the term of this Agreement, a non-sublicensable, non-transferable, non-exclusive subscription to, solely for Subscriber’s internal use: (a) access and use the SecureDB Service; (b) internally use and reproduce the Documentation; and (c) grant Authorized Users the right to access and use the SecureDB Service. Subscriber acknowledges and agrees that the functionality available via the SecureDB Service may vary depending on Subscriber’s subscription level. Subscriber agrees that its purchase of the subscription is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by SecureDB with respect to future functionality or features.
    2. Access. Subject to Subscriber’s payment of the fees associated with Subscriber’s selected subscription level, SecureDB will provide Subscriber with access to the SecureDB Service during the term of this Agreement. SecureDB will provide to Subscriber the necessary passwords, security protocols and policies and network links or connections and Access Protocols to allow Subscriber and its Authorized Users to access the SecureDB Service. Subscriber will use commercially reasonable efforts to prevent unauthorized access to, or use of, the SecureDB Service, and notify SecureDB promptly of any such unauthorized use known to Subscriber.
    3. Authorized Users. Subscriber may permit any Authorized Users to access and use the features and functions of the SecureDB Service as contemplated by this Agreement. Each Authorized User will be assigned a unique user identification name and password (“User ID”) for access to and use of the SecureDB Service. User IDs cannot be shared or used by more than one Authorized User at a time.
    4. APIs. As a part of the SecureDB Service, SecureDB offers application programming interfaces, with related tools and documentation (collectively, the “API”) that developers can use within software applications or websites (your “Application”) in connection with the encryption of data. Subject to Subscriber’s compliance with the terms and conditions of this Agreement, SecureDB grants Subscriber a limited, non-exclusive, non-assignable, non-transferable license to internally use and access the API solely as necessary to develop, maintain and support Subscriber’s Application in accordance with the documentation or specifications included in the API. SecureDB may limit: (i) the number of network calls that Subscriber’s Application may make via the API; (ii) the maximum file size; and (iii) anything else about the API as SecureDB deems appropriate, in its sole discretion. SecureDB may impose or modify these limitations without notice. SecureDB may utilize technical measures to prevent over-usage and stop usage of the API by an Application after any usage limitations are exceeded or suspend Subscriber’s access to the API with or without notice to Subscriber in the event Subscriber exceeds any such limitations.
    5. Restrictions. Subscriber will not, and will not permit any Authorized User or other party to: (a) use the SecureDB Service to harvest, collect, gather or assemble information or data regarding other SecureDB subscribers without their consent; (b) access or copy any data or information of other SecureDB subscribers without their consent; (c) interfere with or disrupt the integrity or performance of the SecureDB Service, API or the data contained therein; (d) harass or interfere with another SecureDB subscriber’s use and enjoyment of the SecureDB Service; (e) reverse engineer, disassemble or decompile any component of the SecureDB System; (f) sublicense any of Subscriber’s rights under this Agreement, or otherwise use the SecureDB Service or API for the benefit of a third party or to operate a service bureau; (g) modify, copy or make derivative works based on any part of the SecureDB System; (h) access or use the SecureDB Service or API to build a similar or competitive product or service or attempt to access the SecureDB Service or API through any unapproved interface; (i) remove any legal, copyright, trademark, or other proprietary rights notices contained in or on the SecureDB Service or API; or (j) otherwise use the SecureDB Service or API in any manner that exceeds the scope of use permitted under this Agreement and the Documentation. Subscriber acknowledges and agrees that the SecureDB Service or API will not be used, and are not licensed for use, in connection with any of Subscriber’s time-critical or mission-critical functions. SecureDB may release subsequent versions of the SecureDB Service or API and require Subscriber to use the most recent version. Subscriber’s continued use of the SecureDB Service or API on any website after such a release will be deemed Subscriber’s acceptance of the modifications. Any future release, update, or other change to functionality of the SecureDB Service or API (if any) will be subject to the terms of this Agreement unless SecureDB expressly states otherwise. Subscriber will use the SecureDB Service and API in a manner consistent with any and all applicable laws and regulations.
    6. Applications. Subscriber is solely responsible and liable for its Applications, and for supporting the Applications. Subscriber represents and warrants that Subscriber’s Application will not: (a) violate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) violate any laws or regulations (including any privacy laws) or any obligations or restrictions imposed by any third party; (c) be harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, or patently offensive, or promote racism, bigotry, hatred, or physical harm of any kind against any group or individual, or be otherwise objectionable; (d) be harmful to minors in any way; (e) contain any computer viruses, worms, or any software intended to damage or alter a computer system or data; (f) send unsolicited or unauthorized advertising, promotional materials, junk mail, spam, text messages, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; or (g) offer or promote services that may be damaging to, disparaging of, or otherwise detrimental to SecureDB or its licensors, licensees, affiliates and partners. SecureDB will have the right, in its sole discretion, to refuse to permit Subscriber’s use of the API with a particular Application. Unless SecureDB states otherwise, such rejection will not terminate this Agreement with respect to any other Application. SecureDB will have no liability to Subscriber for such rejection.
    7. Additional Guidelines. Certain features of the SecureDB Service or API may be subject to additional guidelines, terms, or rules, which will be posted in connection with such features. All such additional terms are hereby incorporated by reference into this Agreement.
  3. OWNERSHIP
    1. SecureDB Technology. Subscriber acknowledges that SecureDB retains all right, title and interest in and to the SecureDB System and Documentation and all software and all SecureDB proprietary information and technology used by SecureDB or provided to Subscriber in connection with the SecureDB Service (the “SecureDB Technology”), and that the SecureDB Technology is protected by Intellectual Property Rights owned by or licensed to SecureDB. Other than as expressly set forth in this Agreement, no license or other rights in the SecureDB Technology are granted to Subscriber.
    2. Feedback. Subscriber hereby grants to SecureDB a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the SecureDB Service any suggestions, enhancement requests, recommendations or other feedback provided by Subscriber, including Authorized Users, relating to the SecureDB Service. SecureDB may post user feedback on its website from time to time. If SecureDB posts any information identifying Subscriber as the source of such feedback, SecureDB will first obtain Subscriber’s consent.
    3. Subscriber Content. The Subscriber Content hosted by SecureDB as part of the SecureDB Service, and all worldwide Intellectual Property Rights therein, is the exclusive property of Subscriber. Subscriber hereby grants to SecureDB a non-exclusive, worldwide, royalty-free and fully paid license to use the Subscriber Content as necessary for purposes of providing the SecureDB Service to Subscriber. All rights in and to the Subscriber Content not expressly granted to Company in this Agreement are reserved by Subscriber.
    4. Third Party Software. The SecureDB Service may utilize, contain or otherwise use certain third party software (collectively, the “Third Party Software”). Third Party Software may be subject to additional licensing terms, which SecureDB may deliver or make available from time to time to Subscriber, which are incorporated herein by reference, and which supersede any contradictory terms in this Agreement.
  4. FEES AND EXPENSES; PAYMENTS
    1. Third Party Payment Services Provider. SecureDB uses Stripe Inc. <strong(“Stripe”) as a third party service provider for payment services (e.g., credit card transaction processing, merchant settlement, and related services). By using the SecureDB Service, Subscriber agrees to be bound by Stripe’s US Terms of Service available at https://stripe.com/us/terms and Privacy Policy available at https://stripe.com/us/privacy. Subscriber hereby consents to provide and authorizes SecureDB and Stripe to share any information and payment instructions Subscriber provides to the extent required to complete the payment transactions in accordance with this Agreement, including personal, financial, credit card payment, and transaction information.
    2. Fees. In consideration for the access rights granted to Subscriber and the services performed by SecureDB under this Agreement, Subscriber will pay to SecureDB the fees associated with the subscription level selected by Subscriber via Subscriber’s account preferences. SecureDB’s subscription prices can be found here: https://securedb.co/pricing/T, which prices can be changed by SecureDB upon written notice to Subscriber at least ten (10) days prior to the next billing period (as described below). Any changed fees will be effective beginning on the next billing period. All fees hereunder are billed in advance on a monthly or annual basis on the date Subscriber purchases a subscription on a pro rata basis and at the beginning of each calendar month or year thereafter, as applicable. By providing Stripe with its payment information, Subscriber agrees that SecureDB is authorized to immediately invoice Subscriber’s account for all fees and charges due and payable to SecureDB hereunder and no additional notice or consent is required. Subscriber agrees to immediately notify SecureDB and/or Stripe of any change in Subscriber’s payment information used for payment hereunder. Subscriber may change its subscription level at any time via Subscriber’s account preferences and the fees associated and the new subscription level will take effect beginning on the next billing period. SecureDB reserves the right (in addition to any other rights or remedies SecureDB may have) to discontinue the SecureDB Service and suspend all Authorized Users’ and Subscriber’s access to the SecureDB Service if any fees are more than thirty (30) days overdue until such amounts are paid in full. Subscriber will maintain complete, accurate and up-to-date Subscriber billing and contact information at all times.
    3. Taxes. The fees are exclusive of, and Subscriber will pay, all sales, use, excise and other taxes and applicable export and import fees, customs duties and similar charges that may be levied upon Subscriber in connection with this Agreement, except for employment taxes for SecureDB employees and taxes based on SecureDB’s net income.
    4. Interest. Any amounts not paid when due will bear interest at the rate of one and one half percent (1.5%) per month, or the maximum legal rate if less.
    5. Records; Audit. Subscriber will permit SecureDB or its representatives to review Subscriber’s relevant records and inspect Subscriber’s facilities to ensure compliance with this Agreement. SecureDB will give Subscriber at least ten (10) days advance notice of any such inspection and will conduct the same during normal business hours in a manner that does not unreasonably interfere with Subscriber’s normal operations. If any such audit should disclose any underpayment of fees, Subscriber will promptly pay SecureDB such underpaid amount, together with interest thereon at the rate specified in this Section. If the amount of such underpayment exceeds five percent (5%) of fees actually paid during the audited period, Subscriber will also pay SecureDB for SecureDB’s expenses associated with such audit.
  5. SUBSCRIBER CONTENT AND RESPONSIBILITIES
    1. Accounts. In order to use the SecureDB Service, Subscriber must complete the registration process by providing SecureDB current, complete and accurate information as processed by the registration form. Subscriber will maintain and promptly update its registration information to keep it current, complete and accurate. Subscriber will be fully and solely responsible for all activities that occur under Subscriber’s account, including the activities of Authorized Users. Subscriber will notify SecureDB immediately upon learning of any unauthorized use of its account or any other breach of security.
    2. Subscriber Warranty. Subscriber represents and warrants that the Subscriber Content will not (a) infringe, misappropriate or violate any Intellectual Property Rights, publicity/privacy rights, law or regulation; (b) be deceptive, defamatory, obscene, pornographic or unlawful; (c) contain any viruses, worms or other malicious computer programming codes intended to damage, surreptitiously intercept or expropriate any system, data or personal or personally identifiable information; or (d) otherwise violate the rights of a third party. Subscriber agrees that any use of the SecureDB Service contrary to or in violation of the representations and warranties of Subscriber in this section constitutes unauthorized and improper use of the SecureDB Service
    3. Subscriber Responsibility for Data and Security. SecureDB is not obligated to back up any Subscriber Content; the Subscriber is solely responsible for creating backup copies of any Subscriber Content at Subscriber’s sole cost and expense. Subscriber will have the ability to export Subscriber Content out of the SecureDB Service and is encouraged to make its own back-ups of the Subscriber Content. Subscriber will have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Subscriber Content. Following the expiration or termination of this Agreement, SecureDB may delete from the SecureDB Service all Subscriber Content and any back-ups of the Subscriber Content.
  6. DISCLAIMERS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SECUREDB SERVICE, SECUREDB SYSTEM AND DOCUMENTATION ARE PROVIDED AS IS,” “AS AVAILABLE,” AND WITH ALL FAULTS, AND SECUREDB AND ITS AFFILIATES, SUPPLIERS, AND LICENSORS HEREBY DISCLAIM ALL OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, RELATING TO THE SECUREDB Service, SECUREDB SYSTEM AND DOCUMENTATION WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. SECUREDB DOES NOT GUARANTEE AND DOES NOT PROMISE ANY SPECIFIC RESULTS FROM THE USE OF THE SECUREDB SERVICE. SECUREDB MAKES NO WARRANTY REGARDING the RESULTS OR DATA OBTAINED OR DERIVED THROUGH THE USE OF THE SECUREDB SERVICE. SECUREDB DOES NOT WARRANT THAT ALL ERRORS CAN OR WILL BE CORRECTED, OR THAT OPERATION OF THE SECUREDB SERVICE AND SECUREDB System WILL BE UNINTERRUPTED, TIMELY, FREE OF VIRUSES OR OTHER HARMFUL CODE, SECURE, OR ERROR-FREE. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR CONDITIONS OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO SUBSCRIBER.
  7. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, SUBSCRIBER agrees that NEITHER SECUREDB NOR ITS AFFILIATES, SUPPLIERS, OR LICENSORS will be responsible for any loss or damage caused by THE failure of the SECUREDB SERVICE OR SECUREDB system OR FOR LOSS OR INACCURACY OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE SERVICES, GOODS OR TECHNOLOGY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, in no event will SECUREDB OR ITS AFFILIATES, SUPPLIERS, OR LICENSORS be liable for any special, consequential, exemplary, incidental, or indirect damages, including lost profits, LOST DATA, AND COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, in connection with THIS AGREEMENT, the SECUREDB SERVICE, OR SECUREDB system, even if advised of the possibility of such damages. access to, and use of, the securedb service is at subscriber’s own discretion and risk, and subscriber will be solely responsible for any damage to subscriber’s device or computer system or loss of data resulting therefrom TO THE MAXIMUM EXTENT PERMITTED BY LAW, SECUREDB’s AND ITS AFFILIATES’, SUPPLIERS’, AND LICENSORS’ AGGREGATE CUMULATIVE LIABILITY UNDER or relating to this agreement (INCLUDING THE SECUREDB SERVICE AND SECUREDB system) WILL NOT EXCEED THE AMOUNT PAID BY subscriber TO SECUREDB FOR THE USE AND ACCESS TO THE SECUREDB SERVICE AND SECUREDB system DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING thE EVENT WHICH GAVE RISE TO THE CLAIM. tHE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT SERVE TO ENLARGE THIS LIMIT. SUBSCRIBER acknowledges and agrees that the limitations of SECUREDB’s liability are (i) reasonable in light of SUBSCRIBER’s ability to use the SECUREDB Service, SECUREDB System and documentation at the fees charged by SECUREDB, and (ii) essential and fundamental parts of this agreement, which are necessary to induce SECUREDB to enter into this agreement.
  8. Confidentiality. “Confidential Information” means any nonpublic information of a party (the “Disclosing Party”), whether disclosed orally or in written or digital media, that is identified as “confidential” or with a similar legend at the time of such disclosure or that the receiving party (the “Receiving Party”) knows or should have known is the confidential or proprietary information of the Disclosing Party. Information will not constitute the Disclosing Party’s Confidential Information if it (i) is already known by the Receiving Party without obligation of confidentiality; (ii) is independently developed by the Receiving Party without access to or use of the Disclosing Party’s Confidential Information; (iii) is publicly known without breach of this Agreement; or (iv) is lawfully received from a third party without obligation of confidentiality. The Receiving Party agrees (a) not to use or disclose any Confidential Information except as expressly authorized by this Agreement; (b) to protect the Disclosing Party’s Confidential Information using the same degree of care that it uses with respect to its own confidential information, but in no event with safeguards less than a reasonably prudent business would exercise under similar circumstances; (c) to hold the Disclosing Party’s Confidential Information in strict confidence; and (d) to limit access to the Disclosing Party’s Confidential Information to those of its employees, agents or Authorized Users having a need to know and who are bound by confidentiality obligations at least as restrictive as those contained herein. Notwithstanding the foregoing, the Receiving Party will not be in violation of this Section with regard to a disclosure that was in response to a valid order or requirement by a court or other governmental body or otherwise required by law, provided that the Receiving Party gives the Disclosing Party prior written notice of such disclosure in order to permit the Disclosing Party to seek an appropriate protective order.
  9. INDEMNIFICATION Subscriber will defend at its expense any suit brought against SecureDB, and will pay any settlement Subscriber makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim arising out of or relating to (a) Subscriber’s (or its Authorized User’s) use of the SecureDB Services, SecureDB System or Documentation, except to the extent the claim is caused by SecureDB’s gross negligence or willful misconduct; (b) Subscriber Content; and (c) Subscriber’s Application. SecureDB reserves the right, at SecureDB’s expense, to assume the exclusive defense and control of any matter for which Subscriber is required to indemnify SecureDB, and Subscriber agrees to cooperate with SecureDB’s defense of these claims. Subscriber agrees not to settle any matter without the prior written consent of SecureDB.
  10. TERM AND TERMINATION
    1. Term. This Agreement remains in effect for the Subscription Term. “Subscription Term” means period for which Subscriber has ordered and paid for access and use of the SecureDB Service.
    2. Termination by Subscriber. Subscriber may terminate this Agreement at any time by providing to SecureDB written notice of its desire to cancel its subscription. Following termination, SecureDB will refund to Subscriber any prepaid but unused fees.
    3. Termination by SecureDB. SecureDB may terminate this Agreement at any time by providing to Subscriber with at least sixty (60) days’ prior written notice. If SecureDB terminates this Agreement pursuant to this Section, SecureDB will refund to Subscriber any prepaid but unused fees paid by Subscriber through the effective date of such termination.
    4. Automatic Termination. This Agreement will terminate immediately in the event that Subscriber does not pay for any renewal subscription period, or in the event that Subscriber materially breaches any provision of this Agreement.
    5. Effect of Termination. Upon termination or expiration of this Agreement for any reason: (a) all rights and obligations of both parties, including all licenses granted hereunder, will immediately terminate; (b) any amounts owed to SecureDB under this Agreement will become immediately due and payable.
  11. ARBITRATION AGREEMENT AND JURY TRIAL WAIVER, CLASS ACTION WAIVER, AND FORUM SELECTION CLAUSE
    1. Any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this clause, and the arbitrability of the controversy, dispute, demand, count, claim, or cause of action) between you and SecureDB or SecureDB’s employees, agents, successors, or assigns, will exclusively be settled through binding and confidential arbitration.
    2. Arbitration will be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration will be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”). As modified by this Agreement, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively “Rules and Procedures”).
    3. You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights EXCEPT for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
    4. You and SecureDB must abide by the following rules: (a) ANY CLAIMS BROUGHT BY YOU OR YSECUREDB MUST BE BROUGHT IN THE PARTIE’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (b) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF, (c) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, SecureDB will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation, (d) SecureDB also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (e) the arbitrator will honor claims of privilege and privacy recognized at law; (f) the arbitration will be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award; (g) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (h) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses, and then in such instance, the fees and costs awarded will be determined by the applicable law.
    5. Notwithstanding the foregoing, either you or SecureDB may bring an individual action in small claims court. Further, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret will not be subject to this arbitration agreement. Such claims will be exclusively brought in the state or federal courts located in sHerndon, Virginia. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in Herndon, Virginia in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within Herndon, Virginia for such purposes. A request for interim measures will not be deemed a waiver of the right to arbitrate.
    6. With the exception of subparts 11.4(a) and (b) (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision will remain in effect and will be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, either subpart (a) or (b) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision will be null and void, and neither you nor SecureDB will be entitled to arbitration. If for any reason a claim proceeds in court rather than in arbitration, the dispute will be exclusively brought in state or federal court in Herndon, Virginia.
    7. (g) For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.
  12. Miscellaneous
    1. Electronic Communications. The communications between Subscriber and SecureDB use electronic means, whether Subscriber visits the SecureDB Service or sends SecureDB emails, or whether SecureDB posts notices on the SecureDB Service or communicates with Subscriber via email. Subscriber (a) consents to receive communications from SecureDB in an electronic form and these communications will be sent to the last email address Subscriber provided to SecureDB; and (b) agrees that all terms and conditions, agreements, notices, disclosures, and other communications that SecureDB provides to Subscriber electronically satisfy any legal requirement that such communications would satisfy if it were in a hardcopy writing save that any contractual notices intended to have legal effect must be given in writing in accordance with Section 11.9 below. The foregoing does not affect non-waivable rights.
    2. Publicity. Subscriber agrees that SecureDB may use Subscriber’s name and logo in SecureDB’s marketing materials or communications (including SecureDB’s website and in SecureDB’s marketing presentations) for the sole purpose of indicating Subscriber as a user of the SecureDB Service. Subject to the terms and conditions of this Agreement, Subscriber hereby grants to SecureDB a non-exclusive and limited license to use and publicly display Subscriber’s logo as set forth in this Section.
    3. Governing Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the Commonwealth of Virginia, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction.
    4. Export. Subscriber agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from SecureDB, or any products utilizing such data, in violation of the United States export laws or regulations.
    5. >Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
    6. Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
    7. No Assignment. Neither party will assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without the consent of the other party. The terms of this Agreement will be binding upon the parties and their respective successors and permitted assigns.
    8. Force Majeure. SecureDB will not be liable hereunder by reason of any failure or delay in the performance of its obligations under this Agreement on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions, earthquakes, material shortages or any other cause that is beyond the reasonable control of SecureDB.
    9. Relationship of Parties. Subscriber’s relationship to SecureDB is that of an independent contractor, and neither party is an agent or partner of the other. Subscriber will not have, and will not represent to any third party that it has, any authority to act on behalf of SecureDB.
    10. Notices. All notices required or permitted under this agreement must be delivered in writing, if to SecureDB by emailing [email protected] and if to Subscriber by emailing Subscriber email address associated with Subscriber’s account and will be deemed given upon receipt. Subscriber may change its email address for notice by updating its account.
    11. Modifications. SecureDB may modify this Agreement or any additional terms that apply to the SecureDB Service to, for example, reflect changes to the law or changes to the SecureDB Service. Subscriber should look at the Agreement regularly. SecureDB will post notice of modifications to this Agreement at https://securedb.co/terms-of-service/. Changes will not apply retroactively and will become effective no sooner than thirty (30) days after they are posted. If Subscriber does not agree to the modified terms for the SecureDB Service, Subscriber should discontinue its use the SecureDB Service.
    12. Entire Agreement. This Agreement (including all exhibits hereto and any amendment agreed upon by the parties in writing) is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless (a) in writing and signed by an authorized signatory of Subscriber and the SecureDB, (b) Subscriber accepts an updated Terms of Use online, or (c) Subscriber continues to use the SecureDB Service after SecureDB has posted updates to the Agreement or to any policy governing the SecureDB Service.