Last Updated: [2022-7-6]
THIS AGREEMENT TAKES EFFECT BY ACCESSING OR USING THE PLATFORM (the "Effective Date"). BY ACCESSING OR USING THE PLATFORM YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND, IF ENTERING INTO THIS AGREEMENT FOR AN ORGANIZATION, THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ORGANIZATION; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS.
(a) "Authorized User" means User and User's employees, consultants, contractors, and agents who are authorized by User to access and use the Platform under the rights granted to User pursuant to this Agreement .
(b) "User Data" means information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of User or any other Authorized User through the access and use of the Platform.
(c) "EMQ IP" means all intellectual property provided by EMQ to User or any other Authorized User in connection with the use and access of the Platform. For the avoidance of doubt, EMQ IP includes any information, data, or other content derived from EMQ's monitoring of User's access to or use of the Platform, but does not include User Data.
2. Access and Use.
(a)Provision of Access. Subject to the terms and conditions of this Agreement, EMQ hereby grants you a revocable, non-exclusive, non-transferable, non-sublicensable, limited right to access and use the Platform in accordance with the terms and conditions herein. A password will be required to access the Platform and EMQ shall provide you the necessary access credentials to grant you such access.
(b)Prohibited Use. Any use or attempted use of the Platform (i) to engage in, promote or encourage any unlawful, unauthorized, fraudulent or malicious purpose, or (ii) that could damage, disable, overburden, or impair any server, or the network(s) connected to any server, or (iii) interfere with any other party's use and enjoyment of the Platform, or (iv) to gain unauthorized access to any other accounts, computer systems or networks connected to any server or systems through hacking, password mining or any other means, or (v) to access systems, data or information not intended by EMQ to be made accessible to a user, or (vi) attempt to obtain any materials or information through any means not intentionally made available by EMQ, or (vii) any use other than the business purpose for which it was intended, is prohibited. In addition, in connection with your use of the Platform, you agree that you will not:
(i) Upload or transmit any message, information, data, text, software or images, or other content that is unlawful, harmful, threatening, abusive, harassing, tortious, fraudulent, invasive, infringing, defamatory, vulgar, obscene, or otherwise objectionable, or that may invade another's right of privacy or publicity;
(ii) Create a false identity for the purpose of misleading others or impersonate any person or entity, including, without limitation, any EMQ representative, or falsely state or otherwise misrepresent your affiliation with a person or entity;
(iii) Upload or transmit any material that you do not have a right to reproduce, display or transmit under any law or under contractual or fiduciary relationships;
(iv) To engage in, promote, or encourage illegal activity;
(v) Upload files that contain or intentionally distribute viruses, trojan horses, worms, time bombs, cancel-bots, corrupted files, or any other similar software or programs that may damage the operation of another's computer or property of another;
(vi) Delete any author attributions, legal notices or proprietary designations or labels that you upload to any communication feature;
(vii) Upload or transmit any unsolicited advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes" or any other form of solicitation, commercial or otherwise;
(viii) Violate any applicable local, state, national or international law;
(ix) Upload or transmit any material that infringes any patent, trademark, service mark, trade secret, copyright or other proprietary rights of any party;
(x) Delete or revise any material posted by any other person or entity;
(xi) Manipulate or otherwise display the Platform by using framing, mirroring or similar navigational technology or directly link to any portion of the Platform;
(xii) Probe, scan, test the vulnerability of or breach the authentication measures of the Platform or any related networks or systems;
(xiii) Register, subscribe, attempt to register, attempt to subscribe, unsubscribe, or attempt to unsubscribe, any party for any products and services or any contests, promotions or sweepstakes if you are not expressly authorized by such party to do so;
(xiv) Harvest or otherwise collect information about others, including e-mail addresses; or
(xv) Use any robot, spider, scraper, or other automated or manual means to access the Platform, or copy any content or information on the Platform.
(c) Reservation of Rights. EMQ reserves all rights not expressly granted to User in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, User or any third party any intellectual property rights or other right, title, or interest in or to the EMQ IP.
(f) Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, EMQ may monitor your use of the Platform and collect and compile data and information related to your and the Authorized Users' access or use of the Platform to be used by EMQ in an aggregated and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Platform ("Aggregated Statistics"). As between EMQ and you, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by EMQ. You acknowledge that EMQ may compile Aggregated Statistics based on User Data input into the Platform. You agree that EMQ may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify you or your Confidential Information.
3. User Responsibilities.
(a) Account Use. You are responsible and liable for all uses of the Platform resulting from access provided by you, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, you are responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by you will be deemed a breach of this Agreement by you. You shall use reasonable efforts to make all Authorized Users aware of this Agreement's provisions as applicable to such Authorized User's use of the Platform and shall cause Authorized Users to comply with such provisions.
(b) User Data. By posting, transmitting or uploading any User Data on the Platform, you hereby grant to EMQ a perpetual, non-exclusive, irrevocable (subject to any applicable mandatory data protection requirements), royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the User Data and perform all acts with respect to the User Data as may be necessary for EMQ to provide the services to you, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display User Data incorporated within the Aggregated Statistics. You will ensure that User Data and any Authorized User's use of User Data will not violate any policy or terms referenced in or incorporated into this Agreement or any applicable law. You are solely responsible for the development, content, operation, maintenance, and use of User Data.
(c) Passwords and Access Credentials. You are responsible for keeping your passwords and access credentials associated with the Platform confidential. You will not sell or transfer them to any other person or entity. You will promptly notify us about any unauthorized access to your passwords or access credentials.
4. Confidential Information.
From time to time, EMQ and User may disclose or make available to the other party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, whether or not marked, designated, or otherwise identified as "confidential" at the time of disclosure (collectively, "Confidential Information"). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving party; (c) rightfully obtained by the receiving party on a non-confidential basis from a third party; or (d) independently developed by the receiving party. The receiving party shall not disclose the disclosing party's Confidential Information to any person or entity, except to the receiving party's employees, agents, or subcontractors who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder and who are required to protect the Confidential Information in a manner no less stringent than required under this Agreement. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (i) to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order shall first have given written notice to the other party and made a reasonable effort to obtain a protective order; or (ii) to establish a party's rights under this Agreement, including to make required court filings. Each party's obligations of non-disclosure with regard to Confidential Information are effective as of the date such Confidential Information is first disclosed to the receiving party and will expire five years thereafter; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
6. Intellectual Property Ownership.
(a) EMQ IP. We retain all right, title, and interest in the Platform and any content, features, products, and services offered, including any and all intellectual property rights. We reserve all rights not expressly granted.
(b) User Data. As between you and us, you own all right, title, and interest, including all intellectual property rights, in and to User Data. Any unauthorized use terminates the permission or license granted under this Agreement.
7. Disclaimer of Warranties.
Content and other information contained on the Platform has been prepared by EMQ as a convenience to its Users and is not intended to constitute advice or recommendations upon which a User may rely. EMQ has used reasonable efforts in collecting, preparing and providing quality information and material, but makes no warranty or guarantee about the accuracy, completeness, or adequacy of the content or other information contained in or linked to the Platform or any other website maintained by EMQ. Users relying on content or other information from the Platform do so at their own risk.
THE PLATFORM IS PROVIDED "AS IS" AND EMQ HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. EMQ SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EMQ MAKES NO WARRANTY OF ANY KIND THAT THE EMQ IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
User shall indemnify, hold harmless, and, at EMQ's option, defend EMQ from and against any losses, damages, liabilities, or costs (including attorneys' fees) resulting from any third-party claim, suit, action, or proceeding ("Third-Party Claim") alleging that the User Data, or any use of the User Data in accordance with this Agreement, infringes or misappropriates such third party's US intellectual property rights and any Third-Party Claims based on User or any Authorized User's (i) negligence or willful misconduct; (ii) use of the EMQ IP in a manner not authorized by this Agreement; or (iii) use of the EMQ IP in combination with data, software, hardware, equipment, or technology not provided by EMQ or authorized by EMQ in writing. In the event EMQ seeks indemnification or defense from User under this provision, EMQ shall promptly notify you in writing of the claim(s) brought against EMQ for which EMQ seeks indemnification or defense. EMQ reserves the right, at its option and in its sole discretion, to assume full control of the defense of the claim(s) with legal counsel of EMQ's choice. User may not enter into any third-party agreement which would, in any manner whatsoever, affect EMQ's rights, constitute an admission of fault by EMQ, or bind EMQ in any manner, without EMQ's prior written consent.
9. Limitations of Liability.
IN NO EVENT WILL EMQ BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL PROVIDER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO PROVIDER UNDER THIS AGREEMENT IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
10. Connection Requirements.
You are responsible for providing and maintaining, at your own risk, option and expense, any hardware, software and communication lines required to access and use the Platform, and EMQ reserves the right to change the access configuration of the Platform at any time without prior notice.
You acknowledge and agree that we have the right, in our sole discretion, to modify this Agreement from time to time, and that modified terms become effective on posting. You will be notified of modifications througha pop-up window or email from us. You are responsible for reviewing and becoming familiar with any such modifications. Your continued use of the Platform after the effective date of the modifications will be deemed acceptance of the modified terms.
12. Governing Law and Jurisdiction.
This Agreement is governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of California. Except as otherwise set forth herein, any legal suit, action, or proceeding arising out of or related to this Agreement or the rights granted hereunder will be instituted in the federal courts of the United States or the courts of the State of California in each case located in the city of San Francisco and County of San Francisco, or in the city of San Jose and County of Santa Clara, and each party irrevocably submits to the jurisdiction of such courts in any such suit, action, or proceeding.
13. Entire Agreement.
This Agreement constitutes the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
Any notices to us must be sent to our address available at 305 Vineyard Town Center, Suite 140, Morgan Hill, California 95037 and must be delivered either in person, by certified or registered mail, return receipt requested and postage prepaid, or by recognized overnight courier service, and are deemed given upon receipt by us. Notwithstanding the foregoing, you hereby consent to receiving electronic communications from us. These electronic communications may include notices about applicable fees and charges, transactional information, and other information concerning or related to the use and access of the Platform. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing.
The invalidity, illegality, or unenforceability of any provision herein does not affect any other provision herein or the validity, legality, or enforceability of such provision in any other jurisdiction. Any failure to act by us with respect to a breach of this Agreement by you or others does not constitute a waiver and will not limit our rights with respect to such breach or any subsequent breaches. This Agreement is personal to you and may not be assigned or transferred for any reason whatsoever without our prior written consent and any action or conduct in violation of the foregoing will be void and without effect. We expressly reserve the right to assign this Agreement and to delegate any of its obligations hereunder.