1. Aurifox Aurifox allows Users to create, operate and maintain landing pages, Sales funnels, Interactive sales funnels and affiliate program with sales funnels (“User Pages”) for our Users’ marketing campaigns.
2. Aurifox Service
• Eligibility This is a contract between you and Sunsoft. You must read and agree to these terms before using Aurifox. If you do not agree, you may not use Aurifox. You may use Aurifox only if you can form a binding contract with Sunsoft, and only in compliance with this Agreement and all applicable local, state, national, and international laws, rules and regulations. Any use or access to Aurifox by anyone under 13 is strictly prohibited and in violation of this Agreement. Aurifox is not available to any Users previously removed from Aurifox by Sunsoft.
• Limited License Subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to use Aurifox as permitted by the features of Aurifox. Sunsoft reserves all rights not expressly granted herein in Aurifox and the Sunsoft Content (as defined below). Sunsoft may terminate this license at any time for any reason or no reason.
• Aurifox AccountsYour account on Aurifox (your “Aurifox Account”) gives you access to the services and functionality that we may establish and maintain from time to time and in our sole discretion. We may maintain different types of Aurifox Accounts for different types of Users. If you open a Aurifox Account on behalf of a company, organization, or other entity, then: (i) “you” includes you and that entity, and (ii) you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to this Agreement, and that you agree to this Agreement on the entity’s behalf. By connecting to Sunsoft with a third-party service, you give us permission to access and use your information from that service as permitted by that service, and to store your log-in credentials for that service. You may never use another User’s Aurifox Account without permission. When creating your Aurifox Account, you must provide accurate and complete information, and you must keep this information up to date. You are solely responsible for the activity that occurs on your Aurifox Account, and you must keep your Aurifox Account password secure. We encourage you to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your Aur i fox Account . You must not i fy Sunsof t immediately of any breach of secur i ty or unauthorized use of your Aurifox Account. Sunsoft will not be liable for any losses caused by any unauthorized use of your Aurifox Account. You may control your User profile and how you interact with Aurifox by changing the settings in your Settings page. By providing Sunsoft your email address you consent to our using the email address to send you service-related notices, including any notices required by law, in lieu of communication by postal mail. With your consent, we may also use your email address to send you other messages, such as changes to features of Aurifox and special offers. If you do not want to receive such email messages, you may opt out by clicking on the unsubscribe link on the bottom of our emails. Opting out may prevent you from receiving email messages regarding updates, improvements, or offers.
• Administrator AccountsThe person who first completes the Aurifox registration on behalf of any company, entity or organization (“Subscribing Organization”) is the initial “Administrator” for purposes of such Subscribing Organization’s use of Aurifox, and exercises certain options to initially determine the level of access, privacy, and security for Aurifox related to the Subscribing Organization (“Administrator Account”). For example, the Administrator will determine who can be a User of Aurifox under the organization associated with that Administrator and Subscribing Organization and the level of privileges that such Users will possess. Once initial registration has been completed, each Subscribing Organization will be able to register additional Administrators. Each Administrator may designate other Users as additional and/or successor Administrators; provided that, each Administrator is responsible for confirming that those person(s) accept such responsibility. Upon becoming an Administrator, each person will be deemed to agree to the obligations hereunder. In addition, any person designated as the billing contact in the billing record for a Subscribing Organization will be deemed to assume the rights and obligations of an Administrator. Administrator Accounts must comply in all respects with all terms and conditions applicable to Aurifox Accounts.
• Aurifox RulesWhen using Aurifox, you agree not to:
(a) upload or transmit pornographic, threatening, embarrassing, hateful, racially or ethnically insulting, libelous, or otherwise inappropriate content;
(c) use Aurifox in any manner that infringes, violates or misappropriates any third party’s intellectual property or proprietary rights;
(d) use Aurifox in any manner is misleading, deceptive or fraudulent or otherwise illegal or promotes illegal activities, including engaging in phishing or otherwise obtaining financial or other personal information in a misleading manner or for fraudulent or misleading purposes;
(e) use Aurifox in any manner is libelous or defamatory, or that is otherwise threatening, abusive, violent, harassing, malicious or harmful to any person or entity, or is invasive of another’s privacy;
(f) use Aurifox in any manner that is harmful to minors in any way;
(g) use Aur i fox in any manner that is hateful or discriminatory based on race, color, gender, gender identity, religion, nationality, ethnic or national origin, marital status, disability, sexual orientation or age or is otherwise object ionable, as reasonably determined by Sunsoft;
(h) use Aurifox in any manner that in our sole discretion could damage, disable, overburden, or impair it; (i) use Aurifox in any manner that constitutes or contains any form of advertising or solicitation to users who have requested not to be contacted about other services, products or commercial interests; (j) attempt to gain unauthorized access to Aurifox, or any part of them, other Aurifox Accounts, computer systems or networks connected to Aurifox, or any part of them, through hacking, password mining or any other means or interfere or attempt to interfere with the proper working of Aurifox or any activities conducted on Aurifox; (k) modify Aurifox in any manner or form, or use modified versions of Aurifox, including but not limited to for the purpose of obtaining unauthorized access to Aurifox;
(l) use any robot, spider, scraper, or other automated means to access Aurifox for any purpose without our express written permission, or bypass any measures we may use to prevent or restrict access to Aurifox; (m) impersonate another person or access another User’s Aurifox Account without that User’s permission or to violate any contractual or fiduciary relationships; (n) share Sunsoft-issued passwords with any third party or encourage any other User to do so; (o) modify, adapt, translate or create derivative works based upon Aurifox; (p) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of Aurifox, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation; (q) rent, lease, loan, resell, sublicense, distribute or otherwise transfer Aurifox to any third party; provide time sharing or similar services for any third party; or use Aurifox for any purpose other than your own internal business use; (r) remove, circumvent, disable, damage or otherwise interfere with securityrelated features of Aurifox, features that prevent or restrict use or copying of any content accessible through Aurifox, or features that enforce limitations on use of Aurifox; (s) access Aurifox if you are a direct competitor of Sunsoft, except with Sunsoft’s prior written consent, or for any other competitive purposes; or (t) except as permitted by the features of Aurifox, collect or harvest any personally identifiable information, including account names, from Aurifox.
• Responsibilities for Calls and MessagingTo the extent applicable to your use of the Service, you shall at all times comply with the CAN SPAM Act of 2003, the Telephone Consumer Protection Act (47 U.S.C. §227), the Do-Not-Call Implementation Act and the Do-Not-Call list registry rules (http:// www.donotcall.gov), the Telemarketing Sales Rule, 47 C.F.R. § 64.1200 et seq, and all other state or local laws, rules, regulations, and guidelines relating to calling or texting, including without limitation, rules, regulations and guidelines set forth by the Federal Trade Commission and the Federal Communications Commission (collectively, the “Calling Laws”). You agree that, as between the parties, you are the initiator of any call, SMS/MMS message, or other communication transmitted through the Service and for all content relating to, inducing, or encouraging cal ls, SMS/MMS messages or other communications to take place. Sunsoft is not responsible for reviewing the contents of any communication transmitted through the Services or transmitted by you related to your use of the Service, nor is it responsible for obtaining any necessary consents or permissions from the message recipients.
• Changes to Aurifox We may, without prior notice, change Aurifox; stop providing Aurifox or features of Aurifox, to you or to Users generally; or create usage limits for Aurifox. We may permanently or temporarily terminate or suspend your access to Aurifox without notice and liability for any reason, including if in our sole determination you violate any provision of this Agreement, or for no reason. Upon termination for any reason or no reason, you continue to be bound by this Agreement.
3. User Content Some areas of Aurifox allow Users to submit, provide, or otherwise make available content such as videos, images, music, text, comments, questions, and other content or information (any such materials a User submits, provides, or otherwise makes available on Aurifox is referred to as “User Content”). We claim no ownership rights over User Content created by you. The User Content you create remains yours. By submitting, providing, or otherwise making available any User Content on or through Aurifox, you expressly grant, and you represent and warrant that you have all rights necessary to grant, to Sunsoft a royalty-free, sublicensable, transferable, perpetual, irrevocable, nonexclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, syndicate, publicly perform, publicly display, and make derivative works of all such User Content and your name, voice, and/or likeness as contained in your User Content, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with Aurifox, including without limitation for promoting and redistributing part or all of Aurifox (and derivative works thereof) in any media formats and through any media channels. For the purposes of this Agreement, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction. In connection with your User Content, you affirm, represent and warrant the following:
• You have the written consent of each and every identifiable natural person in the User Content, if any, to use such person’s name or likeness in the manner contemplated by Aur i fox and this Agreement, and each such person has released you from any liability that may arise in relation to such use.
• You have obtained and are solely responsible for obtaining all consents as may be required by law to post any User Content relating to third parties.
• Your User Content and Sunsoft’s use thereof as contemplated by this Agreement and Aurifox will not violate any law or infringe any rights of any third party, including but not limited to any Intellectual Property Rights and privacy rights.
• Sunsoft may exercise the rights to your User Content granted under this Agreement without liability for payment of any guild fees, residuals, payments, fees, or royalties payable under any collective bargaining agreement or otherwise.
• To the best of your knowledge, all your User Content and other information that you provide to us is truthful and accurate.
4. Sunsoft takes no responsibility and assumes no liability for any User Content that you or any other User submits, provides or otherwise makes available over Aurifox. You shall be solely responsible for your User Content and the consequences of submitting it, providing it, or otherwise making it available on Aurifox, and you agree that we are only acting as a passive conduit for your online distribution and publication of your User Content.
5. Customer Data
• Customer Data. Some areas of Aurifox may allow Aurifox to collect information from your current or potential customers, website visitors or end-users (collectively, “Customer Data”).
• Use of Customer Data. By submitting or causing to be submitted Customer Data to Sunsoft, you hereby grant, and represent and warrant that you have all rights necessary to grant, all rights and licenses to the Customer Data required for Sunsoft and its subcontractors and service providers to provide Aurifox. Sunsoft shall have no right to sublicense or resell Customer Data, except however, that you agree that Sunsoft may collect, analyze, and use data derived from Customer Data, which may include personally identifiable data and/or information collected from or about an individual but which does not identify the individual personally for purposes of operating, analyzing, improving, or marketing Aurifox and any related services. If Sunsoft shares or publicly discloses information (e.g., in marketing materials, or in application development) that is derived from Customer Data, such data will be aggregated or anonymized to reasonably avoid identification of a specific individual. You further agree that Sunsoft will have the right, both during and after the term of this Agreement, to use, store, transmit, distribute, modify, copy, display, sublicense, and create derivative works of the anonymized, aggregated data.
• Your Responsibilities for Customer Data. In connection with Customer Data, you hereby represent, warrant, and agree that:
(a) you have obtained or will obtain the Customer Data lawfully a n d / o r h a v e n o t e n g a g e d i n ma t e r i a l misrepresentation, deception or other fraudulent or improper means to cause the Customer Data to be collected by Aurifox;
(b) the Customer Data does not and will not violate any applicable laws or any person or entity’s proprietary or intellectual property rights;
(d) you are solely responsible for ensuring compliance with all privacy laws in all jurisdictions that may apply to Customer Data;
(e) Sunsoft may exercise the rights in Customer Data granted hereunder without liability or cost to any third party; and
(f) the Customer Data complies with the terms of these Terms. For purposes of clarity, Sunsoft takes no responsibility and assumes no liability for any Customer Data, and you will be solely responsible for its Customer Data and the consequences of collecting or sharing it hereunder. You may not submit, or cause to be submitted, any Customer Data that includes a social security number, passport number, driver’s license number, or similar identifier, credit card or debit card number, employment, financial or health information , or any other information which may be subject to specific data privacy and security laws including, but not limited to, the Gramm-Leach-Bliley Act (GLBA), Children’s Online Privacy Protection Act (COPPA) or the Health Insurance Portability and Accountability Act (HIPAA), or which could give rise to notification obligations under data breach notification laws, without Sunsoft’s prior written approval.
• Security Incidents. In the event that Customer Data is disclosed to or accessed by an unauthorized party, Sunsoft will promptly notify you and use reasonable efforts to cooperate with your investigation of the incident. In the event we have a reasonable, good faith belief that an unauthorized party has accessed Customer Data, we will promptly notify you and will use reasonable efforts to cooperate with your investigation of the incident. If such incident triggers any third-party notice requirements, you (not Sunsoft) shall be solely responsible for the timing, content, cost and method of any such notice and compliance with applicable laws. You (not Sunsoft) bears sole responsibility for adequate security, protection and backup of Cu s t ome r Da t a wh e n i n y o u r o r y o u r representatives’ or agents’ possession or control. We are not responsible, and you are fully responsible, for what your authorized Users do with Customer Data.
• No Responsibility for Backups. Sunsoft will not be responsible for any backup, recovery or other steps required to ensure that Customer Data is recoverable in the case of data loss. You are solely responsible for backing up your Customer Data on a regular basis, and taking appropriate steps to safeguard and ensure the integrity of your Customer Data.
• Rights to Customer Data. You own all right, title and interest (including all Intellectual Property Rights) in and to Customer Data.
6. Our Proprietary RightsExcept for your User Content, Aurifox and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, and User Content belonging to other Users (the “Sunsoft Content”), and all Intellectual Property Rights related thereto, are the exclusive property of Sunsoft and its licensors (including other Users who post User Content to Aurifox). Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any Sunsoft Content. Use of the Sunsoft Content for any purpose not expressly permitted by this Agreement is strictly prohibited. You may choose to or we may invite you to submit comments or ideas about Aurifox, including without limitation about how to improve Aurifox or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Sunsoft under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, Sunsoft does not waive any rights to use similar or related ideas previously known to Sunsoft, or developed by its employees, or obtained from sources other than you.
7. Subscription; Fees and Payment
• Fees. We will charge you fees (“Fees”) for your use of Aurifox. You agree to pay any and all Fees specified in an ordering document or online order for your access and use of Aurifox (“Ordering Document”). For the most current information about our pricing and payment, please review our Pricing and Payment Terms, which are incorporated by reference herein. Sunsoft may add new services for additional fees and charges, and add or amend fees and charges for existing services, at any time in its sole discretion. If we add or amend our Fees, we will update our Pricing and Payment Terms. Any change to our Pricing and Payment Terms shall become effective in the billing cycle following notice of such c h a n g e t o y o u a s p r o v i d e d i n t h i s Agreement; provided however that if we have offered a specific duration and Fees for your use of Aurifox, we agree that the Fees will remain in force for that duration.
• Continuous Subscription Services; Automatic Billing and Policies. Unless otherwise provided in an Ordering Document any purchases for access and use of Aurifox are on an automatically renewing subscription basis. YOUR Aurifox SUBSCRIPTION WILL AUTOMATICALLY RENEW AT THE END OF YOUR SUBSCRIPTION TERM IDENTIFIED IN YOUR O R D E R I N G DOCUMENT F O R SUBSEQUENT TERMS EQUAL IN LENGTH TO THE INITIAL SUBSCRIPTION TERM (EACH A “SUBSCRIPTION TERM”) UNLESS AND UNTIL YOU CANCEL YOUR Aurifox SUBSCRIPTION IN ACCORDANCE WITH THE CANCELLATION PROCEDURES IDENTIFIED IN SECTION 6.3 OF THIS AGREEMENT. When you purchase Aurifox, you expressly acknowledge and agree that: (1) Sunsoft is authorized to charge you at the beginning of each Subscription Term the Fees identified in an Ordering Document, any applicable taxes, and any other charges you may incur in connection with your use of Aurifox, for as long as your subscription continues; and (2) your subscription is continuous until you cancel it or Aurifox is suspended, discontinued or terminated in accordance with this Agreement. You acknowledge and agree that the amount billed may vary due to promotional offers, changes in your subscription plan, changes in applicable taxes, and changes in Fees in accordance with Sections 6.1 and 6.3 and you authorize us to charge your payment method for the changed amounts.
• Cancellation; Refunds. You may cancel your Aurifox Account or the Aurifox Service at any time. To cancel your Aurifox Account or the Aurifox Service, you must notify us at least three (3) days before the start of the next Subscription Term using the appropriate functionalities of Aurifox or by contacting us at [email protected] There will be no refunds or credits for partial months of service or for periods in which your Subscription remains unused. For renewal purposes, if adequate notice is not received and your credit card is subsequently charged, you will not receive a refund. In the event that Aurifox suspends or terminates your account or this Agreement, you understand and agree that you shall receive no refund or exchange for any Aurifox Property, any unused time on a subscription, any license or subscription fees for any portion of the Service, any content or data associated with your account, or for anything else.
• Payment Information; Taxes. We or our third-party payment processors will charge your Fees and any other charges you may incur to the payment method you provide when you register for a Aurifox Account or you identify in an Ordering Document. All information that you provide in connection with a purchase or transaction or other monetary transaction interaction with Aurifox must be accurate, complete, and current. You may change your payment method by changing the information in your Aurifox Account. You agree to pay all charges incurred by users of your credit card, debit card, or other payment method used in connection with a purchase or transaction or other monetary transaction interaction with Aurifox at the prices in effect when such charges are incurred. If we are unsuccessful in charging your payment method and have still not received payment within seven (7) days after informing you, we may (without liability to you) suspend or temporarily disable all or part of your access to Aurifox and we shall be under no obligation to provide any or all of Aurifox while the Fees concerned remain unpaid. This does not affect any other rights and remedies available to us. You will pay any and all applicable taxes, if any, relating to any such payments of Fees, purchases, transactions or other monetary transactions.
9. Security Sunsoft uses commercially reasonable physical, managerial, and technical safeguards to preserve the integrity and security of your personal information and implement your privacy settings. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
10.DMCA Notice Since we respect artist and content owner rights, it is Sunsoft’s policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 (“DMCA”). If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via Aurifox, please notify Sunsoft’s copyright agent as set forth in the DMCA. For your complaint to be valid under the DMCA, you must provide the following information in writing:
• An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
• Identification of the copyrighted work that you claim has been infringed;
• Identification of the material that is claimed to be infringing and where it is located on Aurifox;
• Information reasonably sufficient to permit Sunsoft to contact you, such as your address, telephone number, and, e-mail address;
• A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and
• A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.
11.The above information must be submitted to the following DMCA Agent: Attn: DMCA Notice
12. Sunsoft: Sunsoft, Inc. d/b/a Sunsoft
13. Address: 100, Church Street, 8th Floor, Manhattan, New York, NY 10007, USA
14. Tel.: 315.231.6666 15.
16. Email: [email protected]
17. Under federal law, if you knowingly misrepresent that online material is infringing, you may be subject to criminal prosecution for perjury and civil penalties, including monetary damages, court costs, and attorneys’ fees. Please note that this procedure is exclusively for notifying Sunsoft and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with Sunsoft’s rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws. In accordance with the DMCA and other applicable law, Sunsoft has adopted a policy of terminating, in appropriate circumstances, Users who are deemed to be repeat infringers. Sunsoft may also at its sole discretion limit access to Aurifox and/or terminate the Aurifox Accounts of any Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
19.Indemnity You agree to defend, indemnify and hold harmless Sunsoft and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (a) your use of and access to Aurifox, including any data or content transmitted or received by you; (b) your violation of any term of this Agreement, including without limitation your breach of any of the representations and warranties above; (c) your violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights; (d) your violation of any applicable law, rule or regulation; (e) User Content or any content that is submitted via your Aurifox Account including without limitation misleading, false, or inaccurate information; (f) your willful misconduct; or (g) any other party’s access and use of Aurifox with your unique username, password or other appropriate security code.
20.No Warranty Aurifox is provided on an “as is” and “as available” basis. Use of Aurifox is at your own risk. To the maximum extent permitted by applicable law, Aurifox is provided without warranties of any kind, whether express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, or non-infringement. No advice or information, whether oral or written, obtained by you from Sunsoft or through Aurifox will create any warranty not expressly stated herein. Without limiting the foregoing, Sunsoft, its subsidiaries, its affiliates, and its licensors do not warrant that the content is accurate, reliable or correct; that Aurifox will meet your requirements; that Aurifox will be available at any particular time or location, uninterrupted or secure; that any defects or errors will be corrected; or that Aurifox is free of viruses or other harmful components. Any content downloaded or otherwise obtained through the use of Aurifox is downloaded at your own risk and you will be solely responsible for any damage to your computer system or mobile device or loss of data that results from such download or your use of Aurifox. Further, Sunsoft does not warrant, endorse, guarantee, or assume responsibility for any product or service advertised or offered by a third party through Aurifox or any hyperlinked website or service, and Sunsoft will not be a party to or in any way monitor any transaction between you and third-party providers of products or services. Federal law, some states, provinces and other jurisdictions do not allow the exclusion and limitations of certain implied warranties, so the above exclusions may not apply to you. This Agreement gives you specific legal rights, and you may also have other rights which vary from state to state. The disclaimers and exclusions under this Agreement will not apply to the extent prohibited by applicable law.
21.Limitation of Liability To the maximum extent permitted by applicable law, in no event shall Sunsoft, its affiliates, agents, directors, employees, suppliers or licensors be liable for any indirect, punitive, incidental, special, consequential or exemplary damages, including without limitation damages for loss of profits, goodwill, use, data or other intangible losses, arising out of or relating to the use of, or inability to use, Aurifox. Under no circumstances will Sunsoft be responsible for any damage, loss or injury resulting from hacking, tampering or other unauthorized access or use of Aurifox or your account or the information contained therein. To the maximum extent permitted by applicable law, Sunsoft assumes no liability or responsibility for any (i) errors, mistakes, or inaccuracies of content; (ii) personal injury or property damage, of any nature whatsoever, resulting from your access to or use of our service; (iii) any unauthorized access to or use of our secure servers and/or any and all personal information stored therein; (iv) any interruption or cessation of transmission to or from Aurifox; (v) any bugs, viruses, Trojan horses, or the like that may be transmitted to or through our service by any third party; (vi) any errors or omissions in any content or for any loss or damage incurred as a result of the use of any content posted, emailed, transmitted, or otherwise made available through Aurifox; and/or (vii) User Content or the defamatory, offensive, or illegal conduct of any third party. In no event shall Sunsoft, its affiliates, agents, directors, employees, suppliers, or licensors be liable to you for any claims, proceedings, liabilities, obligations, damages, losses or costs in an amount exceeding the amount you paid to Sunsoft hereunder or $100.00, whichever is greater. This limitation of liability section applies whether the alleged liability is based on contract, tort, negligence, strict liability, or any other basis, even if Sunsoft has been advised of the possibility of such damage. Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you. This Agreement gives you specific legal rights, and you may also have other rights which vary from state to state. The disclaimers, exclusions, and limitations of liability under this Agreement will not apply to the extent prohibited by applicable law.
22.Governing Law, Arbitration, and Class Action/Jury Trial Waiver
• Governing Law. You agree that: (i) Aurifox shall be deemed solely based in New York; and (ii) Aurifox shall be deemed a passive service that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than New York. This Agreement shall be governed by the internal substantive laws of the State of New York, without respect to its conflict of laws principles. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). The application of the United Nat ions Convent ion on Cont ract s for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in New York, NY for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that New York, NY is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
• Arbitration. Read this section carefully because it requires the parties to arbitrate their disputes and limits the manner in which you can seek relief from Sunsoft. For any dispute with Sunsoft, you agree to first contact us at [email protected] and attempt to resolve the dispute with us informally. In the unlikely event that Sunsoft has not been able to resolve a dispute it has with you after Ninety (90) days, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at www.jamsadr.com. The arbitration will be conducted in New York, NY unless you and Sunsoft agree otherwise. If you are using Aurifox for commercial purposes, each party will be responsible for paying any JAMS fil ing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using Aurifox for non-commercial purposes: (i) JAMS may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from JAMS; (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing Sunsoft from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, Intellectual Property Rights or other proprietary rights.
• Class Action/Jury Trial Waiver. With respect to all persons and entities, regardless of whether they have obtained or used Aurifox for personal, commercial or other purposes, all Claims must be brought in the parties’ individual capacity, and not as a plaintiff or class member in any purported class action, collective action, private attorney general action or other representative proceeding. This waiver applies to class arbitration, and, unless we agree otherwise, the arbitrator may not consolidate more than one person’s Claims. You agree that, by entering into this Agreement, you and Sunsoft are each waiving the right to a trial by jury or to participate in a class action, collective action, private attorney general action, or other representative proceeding of any kind.
• Limitation on Claims. You and Sunsoft agree that any cause of action arising out of or related to Aurifox and/or your use thereof must commence must commence within Nine (9) months after the cause of action accrues. Otherwise, such cause of action is permanently barred.
• Assignment. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Sunsoft without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
• Notification Procedures and Changes to the Agreement. Sunsoft may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on our website, as determined by Sunsoft in our sole discretion. Sunsoft reserves the right to determine the form and means of providing notifications to our Users, provided that you may opt out of certain means of notification as described in this Agreement. Sunsoft is not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us. Sunsoft may, in its sole discretion, modify or update this Agreement from time to time, and so you should review this page periodically. When we change the Agreement in a material manner, we will update the ‘last modified’ date at the top of this page and notify you that material changes have been made to the Agreement. Your continued use of Aurifox after any such change constitutes your acceptance of the new Terms of Aurifox. If you do not agree to any of these terms or any future Terms of Aurifox, do not use or access (or continue to access) Aurifox.
• No Waiver. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and Sunsoft’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
• C o n t a c t . P l e a s e c o n t a c t u s at [email protected] with any questions regarding this Agreement.
• Entire Agreement/Severability. This Agreement, together with any amendments and any additional agreements you may enter into with Sunsoft in connection with Aurifox, shall constitute the entire agreement between you and Sunsoft concerning Aurifox. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect, except that in the event of unenforceability of the universal Class Action/Jury Trial Waiver, the entire arbitration agreement shall be unenforceable..