These C2d.in Terms and Conditions (“Agreement”) are entered into as of the date of registration for and/or first use of the C2d.in Products (“Effective Date”), by and between FastTreck, Inc. (“C2d.in”) and the customer listed in said registration information (“Customer”). By registering for or using the C2d.in Products, Customer acknowledges that it is agreeing to the terms of this Agreement. If Customer disagrees with the terms of this Agreement, C2d.in does not grant and/or C2d.in may immediately terminate Customer’s right to access or use the C2d.in Products.
THIS AGREEMENT CONTAINS AN ARBITRATION PROVISION AND CLASS ACTION WAIVER. PLEASE READ THEM CAREFULLY, SINCE THEY AFFECT YOUR LEGAL RIGHTS.
WHEREAS, Customer desires to enter into this Agreement to access and use the C2d.in Application Programming Interface (“API”), user interface, platform, website, plugins, software and related documentation and materials provided by C2d.in to Customer (collectively, “C2d.in Products”);
WHEREAS, C2d.in desires to grant Customer the right to access and use the C2d.in Products in strict accordance with this Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
- C2d.in TECHNOLOGY
- Scope & Current Offerings. As of the Effective Date, C2d.in offers certain C2d.in Products to Customer. C2d.in may add, remove, suspend, discontinue, modify or update the C2d.in Products at any time, in its discretion. All updates provided to C2d.in’s other customers generally and without additional fees shall also be made available to Customer. After the effective date of such update, C2d.in shall bear no obligation to run, provide or support legacy versions of the C2d.in Products.
- Support, Uptime & Training. C2d.in shall not be obligated to provide any training or customer support for the C2d.in Products and makes no representations with respect to any service levels or uptime requirements for the C2d.in Products.
- GRANT OF RIGHTS, METRICS, IMPLEMENTATION & ACCESS
- Rights to C2d.in Products. Subject to the terms and conditions of this Agreement, C2d.in grants Customer a limited, revocable, non-exclusive, non-sublicensable, non-transferable right to use the C2d.in Products solely to shorten uniform resource locators (“URL”), receive C2d.in Metrics and utilize the other products and services contemplated herein during the Term. The grant of rights contemplated in this Section 2(A) shall be for Customer’s internal, non-commercial business purposes, and Customer acknowledges that any enterprise or commercial use of the C2d.in Products will require the execution of additional terms and conditions, and agrees to contact C2d.in at [email protected] regarding any use therefor.
- Implementation and Access. C2d.in shall provide Customer with non-transferable access credentials for the C2d.in Products. Customer shall not (i) misrepresent or mask identities when using the C2d.in Products or seeking access credentials; (ii) select or use as a username a name subject to any rights of a person or entity other than Customer without appropriate authorization; (iii) select or use, as Customer’s username, a name that is otherwise offensive, vulgar or obscene; or (iv) exceed any access permitted by C2d.in. Customer shall safeguard all access credentials provided by C2d.in and shall ensure the confidentiality and security thereof. To the extent Customer is a corporate entity rather than an individual (1) only employees and contractors of Customer (“Personnel”) may use the C2d.in Products; (2) Customer shall require its Personnel to comply with all Laws and the use restrictions (including user seat restrictions, if applicable) set out in the Agreement or otherwise prescribed by C2d.in; (3) Customer represents and warrants that its Personnel have the capacity and authority to enter into this Agreement; and (4) Customer acknowledges that it shall be fully responsible for any acts or omissions of its Personnel, whether authorized or unauthorized. C2d.in may update, refresh or change the manner of accessing the C2d.in Products in its discretion.
- INTELLECTUAL PROPERTY & GRANT RESTRICTIONS
- Ownership. Except for any Customer Content or Customer Services, Customer acknowledges and agrees that C2d.in is the sole and exclusive owner of all right, title and interest in and to the C2d.in Products and C2d.in Metrics and all related documentation, source code, tools, scripts, processes, techniques, methodologies, inventions, know-how, concepts, formatting, arrangements, visual attributes, ideas, database rights, copyrights, patents, trade secrets, and other intellectual property, and all derivatives, enhancements, modifications and improvements thereof (“C2d.in Materials”). Nothing in this Agreement or any other document shall be deemed to transfer ownership of the C2d.in Materials. Except for the limited license rights expressly granted herein, no rights to C2d.in Materials are granted hereunder and all rights in such C2d.in Materials are reserved.
- Feedback. Customer is not required to provide any suggestions, enhancement requests, recommendations or other feedback regarding the C2d.in Products or C2d.in Metrics ("Feedback”). However, if Customer does so, all right, title and interest in and to such Feedback shall be assigned to, and shall become the sole and exclusive property of, C2d.in upon its creation.
- Legal Restrictions. Customer and its Personnel shall not, and shall not permit any third party to: (i) create any service, software, documentation or data that is competitive with, substantially similar or confusingly similar to any aspect of the C2d.in Products or C2d.in Metrics; (ii) use, modify, display, perform, copy, disclose or create derivative works of the C2d.in Products except as expressly permitted herein; (iii) reverse engineer, decompile, disassemble, mimic, screen-scrape, frame or mirror the C2d.in Products or C2d.in Metrics, or use any other means to attempt to discover their source code except as expressly permitted herein; (iv) benchmark, encumber, distribute, sublicense, assign, share, sell, rent, lease, pledge or otherwise transfer the C2d.in Products or C2d.in Metrics to any third party; (v) transmit harmful, disabling or malicious code or devices, or infringing, defamatory, unlawful, tortious, deceptive, misleading, fraudulent, abusive, indecent or otherwise offensive content, or content that contains someone’s personal information or violates a third party’s intellectual property, privacy or publicity rights (“Prohibited Content”) through the C2d.in Products; (vi) access via automated or unauthorized means, interfere with, disrupt or attempt to monitor, override access or circumvent security measures for, the C2d.in Products or C2d.in Metrics or related systems, including via robots, spiders and other electronic methods; and (vii) obscure, remove or alter any proprietary rights or other notices on the C2d.in Products or C2d.in Metrics. Notwithstanding anything to the contrary herein, C2d.in may, in its sole discretion, immediately revoke the grant of rights contemplated in Section 2(A) if Customer breaches or threatens to breach the restrictions in this Section or creates other security or legal concerns. Customer hereby agrees that C2d.in will be entitled, in addition to any other remedies available to it at law or in equity, to injunctive relief to prevent the breach or threatened breach of Customer’s obligations under this Section, without any requirement to demonstrate irreparable harm or post a bond.
- Technical Restrictions. C2d.in reserves the right to limit the number and/or frequency of API calls, concurrent URL shortens or other access to or use of C2d.in Products in its sole discretion. Customer shall not exceed any such limitations in the relevant documentation or as otherwise provided by C2d.in. If C2d.in believes that Customer has attempted to exceed or circumvent these limitations, C2d.in may suspend or block Customer’s access to the C2d.in Products. C2d.in may monitor Customer’s use of the C2d.in Products, including to ensure Customer’s compliance with this Agreement.
- Open Source Software. C2d.in Products may incorporate software that is subject to terms that, as a condition of use, copying, modification or redistribution, require such software and derivative works thereof to be disclosed or distributed in source code form, to be licensed for the purpose of making derivative works, or to be redistributed free of charge (“Open Source Software”). To the extent any Open Source Software license terms are inconsistent with this Agreement, then such rights in the applicable Open Source Software license shall take precedence over the rights granted in this Agreement, but solely with respect to such Open Source Software. Any applicable Open Source Software license is solely between Customer and the applicable licensor of the Open Source Software and Customer shall comply with the applicable Open Source Software license.
- Third Party Materials. C2d.in Products may link to or make available third party products, services, websites, social media platforms, data, software or source code, including without limitation Open Source Software (“Third Party Materials”). C2d.in has no control over Third Party Materials. Accordingly, C2d.in is not responsible or liable for any Third Party Materials. While C2d.in has no obligation to monitor Third Party Materials, C2d.in may remove or modify such Third Party Materials in its discretion, including without limitation to comply with Law. Customer agrees to comply with all terms and conditions and privacy policies related to any Third Party Materials.
- CUSTOMER SERVICES, INFORMATION & URLS
- Customer Services. C2d.in shall have no liability for any Customer product or service accessed through or making use of the C2d.in Products or any end user, customer or Personnel’s use thereof (“Customer Service”). Customer shall not use the C2d.in Products in any manner implying any partnership with, sponsorship by, or endorsement by C2d.in. Customer shall not suggest or imply that C2d.in is the author of or otherwise responsible for the views or content of the Customer Service. Neither Customer nor the Customer Services shall disparage C2d.in or the C2d.in Products. The C2d.in Products shall not be used in connection with any Prohibited Content, or any activities where the use or failure of the C2d.in Products could lead to death, personal injury or property or environmental damage or adversely impact or impose liability on C2d.in in any manner.
- Customer URLs. Customer hereby grants to C2d.in an irrevocable, perpetual, non-exclusive, sublicensable, transferable, royalty-free, worldwide license, to use, copy, import, display, reproduce, perform, distribute, create derivative works, alter or modify all URLs provided by Customer to C2d.in (“Customer URLs”) in connection with the provision, operation and promotion of the C2d.in Products, creation of C2d.in Metrics and for other business purposes. Subject to Section 5(C), Customer expressly agrees that it shall not input any Customer content into the C2d.in Products except Customer URLs. Customer retains all right, title and interest in and to the Customer URLs and is responsible for obtaining, maintaining, retaining and securing the Customer URLs. Customer further acknowledges that all shortened URLs based on Customer URLs will not be broken, taken down, or otherwise disabled even after termination or expiration of this Agreement.
- REPRESENTATIONS AND WARRANTIES
- Customer Content Warranties. Customer represents and warrants that (i) the Customer URLs and Customer Information (collectively, “Customer Content”) and all information on which the C2d.in Metrics are based, and the receipt, collection, use and provision thereof, shall not infringe or violate any third party rights, including without limitation any intellectual property, privacy and publicity rights; (ii) the Customer Content, and any information on which the C2d.in Metrics are based, was received, collected, used and provided to C2d.in in compliance with all applicable laws, rules and regulations and self-regulatory guidelines and requirements, including without limitation laws on privacy and data security, unsolicited messaging, unfair or deceptive practices, or United States trade or export restrictions (“Laws”); (iii) it has obtained all necessary consents, approvals or other authorizations or permissions for, and has complied with its posted privacy policies and all third-party terms and conditions or privacy policies in connection with, its receipt, use and/or provision of the Customer Content and all information on which the C2d.in Metrics are based; and (v) that none of the Customer Content or information or data on which the C2d.in Metrics are based contains any personally identifiable information or persistent identifiers from individuals under the age of 13.
- Further Customer Warranties. Customer further represents and warrants that (i) it has implemented or contractually required industry-standard security measures to help protect the security and integrity of, and prevent, unauthorized access to the C2d.in Products or C2d.in Metrics, Customer Content and Customer Services; (ii) it will not do anything that will make the C2d.in Products subject to any open source or similar license which creates an obligation to grant any rights in the C2d.in Products; (iii) it will not disrupt, disable, erase, alter, harm, damage, interfere with or otherwise impair in any manner the C2d.in Products or C2d.in Metrics; (iv) in the event of any security breach or unauthorized access to any C2d.in Products, C2d.in Metrics, Customer Content and Customer Services, Customer will immediately investigate such breach and notify C2d.in in writing, and, unless otherwise notified by C2d.in, take all corrective action necessary to remedy such breach and/or comply with applicable Law and the requirements of C2d.in, all at Customer’s cost; and (v) Customer, Customer’s use of the C2d.in Products, the Customer Content and Customer Services will comply with all Laws and not violate or infringe upon any third party intellectual property, privacy or publicity rights.
- C2d.in DISCLAIMERS. C2d.in PRODUCTS ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. C2d.in DOES NOT WARRANT THAT: (I) THE C2d.in PRODUCTS WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (II) SHORTENED URLS, THE C2d.in PRODUCTS AND C2d.in METRICS WILL BE ACCURATE, ERROR-FREE OR THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; (III) THE C2d.in PRODUCTS ARE SECURE, FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; (IV) THE RESULTS OF USING THE C2d.in PRODUCTS OR C2d.in METRICS WILL MEET CUSTOMER’S REQUIREMENTS OR ANY OF ITS OR ITS USERS’, PERSONNEL’S OR CUSTOMERS’ BUSINESS NEEDS; OR (V) THE C2d.in PRODUCTS WILL BE UNINTERRUPTED OR THAT ANY INTERRUPTION WILL BE CORRECTED IN A TIMELY MANNER. CUSTOMER’S USE OF THE C2d.in PRODUCTS AND C2d.in METRICS IS SOLELY AT ITS OWN RISK. FURTHER, C2d.in MAKES NO REPRESENTATIONS OR WARRANTIES AND SHALL ASSUME NO LIABILITY AMOUNTS OR INDEMNITY OBLIGATIONS WITH RESPECT TO ENSURING THAT CUSTOMER’S USE OF THE C2d.in PRODUCTS AND C2d.in METRICS COMPLY WITH ANY LAWS OR REGULATIONS OUTSIDE THE UNITED STATES AND CUSTOMER SHALL BE SOLELY LIABLE FOR SUCH COMPLIANCE. C2d.in SHALL BEAR NO RESPONSIBILITY FOR THIRD PARTY PRODUCTS OR SERVICES (E.G., OPEN SOURCE SOFTWARE, SOCIAL MEDIA PLATFORMS, THIRD PARTY MATERIALS OR FOR HOST OR APP STORE PROVIDERS). CUSTOMER RECOGNIZES THAT THE FIGURES CONTAINED IN THE C2d.in METRICS PRODUCED HEREUNDER ARE ESTIMATES AND MAY BE SUBJECT TO STATISTICAL ERROR. C2d.in DOES NOT WARRANT THAT THE C2d.in METRICS WILL BE COMPLETELY CORRECT, ACCURATE, TIMELY OR OTHERWISE RELIABLE. C2d.in HEREBY DISCLAIMS ANY LIABILITY FOR ANY USE OR RELIANCE ON THE C2d.in METRICS BY CUSTOMER AND THIRD PARTIES.
- Confidentiality. Customer agrees that the business, technical and financial information of C2d.in that is designated in writing as confidential, or that should reasonably be considered confidential given the nature of the information and/or the manner or means of disclosure, shall be the confidential property of C2d.in (“Confidential Information”). C2d.in’s Confidential Information includes the C2d.in Materials. Confidential Information shall only be used by Customer as explicitly authorized in writing by C2d.in. Customer shall use all necessary measures to safeguard C2d.in’s Confidential Information. Confidential Information does not include information that Customer can show by pre-existing written evidence (i) was previously rightfully known to the receiving party without restriction on disclosure; (ii) is or becomes known to the general public, through no fault or breach on the part of the receiving party; (iii) is disclosed to the receiving party by a third party without breach of any separate nondisclosure obligation; or (iv) is required to be disclosed pursuant to a judicial order or third party subpoena, provided Customer provides written notice to C2d.in in order for C2d.in to seek an appropriate remedy and only discloses the minimum information required by the order or subpoena. Customer hereby agrees that C2d.in will be entitled, in addition to any other remedies available to it at law or in equity, to injunctive relief to prevent the breach or threatened breach of the receiving party’s obligations under this Section, without any requirement to demonstrate irreparable harm or post a bond.
- INDEMNIFICATION AND RESPONSIBILITY
- Indemnification Customer will defend, indemnify and hold harmless C2d.in, its parents, subsidiaries, affiliates and their employees, officers, directors, representatives, contractors, customers, business partners, successors and assigns (“C2d.in Indemnitees”) from and against any third party claims and actions, and resulting damages, liabilities and costs (including reasonable attorneys’ fees and expenses) incurred by C2d.in Indemnitees arising out of or directly or indirectly related to (a) the Customer Content, Customer Services or any other Customer products and services; (b) Customer’s acts and omissions hereunder, breach of this Agreement, or violation of Laws; and/or (c) any allegation of intellectual property, privacy or publicity infringement concerning Customer Content or Customer Services. C2d.in shall promptly notify Customer of any claim for which it seeks indemnification; provided, however, that any delay in providing notification shall not vitiate Customer’s indemnification obligations unless Customer is materially prejudiced thereby. Customer shall have sole control over the defense of any claim under this Section, except that C2d.in may approve any counsel used by Customer and that C2d.in may participate in the defense, at Customer’s cost. All settlements of indemnification claims require the consent of C2d.in.
- LIMITATION OF LIABILITY
- LIABILITY LIMITATION. IN NO EVENT SHALL C2d.in BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE C2d.in PRODUCTS, C2d.in METRICS OR OTHERWISE HEREUNDER FOR ANY CLAIM RELATED TO (I) ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, COMPENSATORY, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (HOWEVER ARISING); (II) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION); (III) ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE C2d.in PRODUCTS; (IV) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY CUSTOMER CONTENT AND OTHER DATA MAINTAINED OR TRANSMITTED BY OR THROUGH CUSTOMER’S USE OF THE C2d.in PRODUCTS; (V) CUSTOMER’S FAILURE TO PROVIDE C2d.in WITH ACCURATE ACCOUNT OR OTHER INFORMATION; (VI) ANY LIABILITY RESULTING FROM CUSTOMER’S FAILURE TO KEEP ITS PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL; (VII) CUSTOMER’S FAILURE TO ACCESS THE C2d.in PRODUCTS DUE TO MALFUNCTION(S) IN EQUIPMENT, INFRASTRUCTURE, SYSTEM, OR THE NETWORK USED BY CUSTOMER; OR (VIII) AMOUNTS FOR ALL CLAIMS HEREUNDER IN THE AGGREGATE IN EXCESS OF $100.00.
- TERM AND TERMINATION
- Agreement Term. This Agreement shall commence on the Effective Date and continue unless otherwise terminated as permitted herein (“Term”).
- C2d.in Right to Terminate. C2d.in may terminate this Agreement immediately in its discretion. Upon expiration or termination of this Agreement, all applicable rights and access granted to Customer shall automatically terminate and Customer and its Personnel shall cease any further use of the C2d.in Products and return, or, if directed by C2d.in, destroy, all Confidential Information of C2d.in. Any Section of this Agreement which by its nature would survive such expiration or termination shall so survive.
- Relationship of the Parties. The parties shall be independent contractors under this Agreement, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.
- Entire Agreement and Severability. This Agreement is the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between the parties with respect thereto. No additional or conflicting terms set out on Customer order, invoice, statement or other document, or contained in any “shrinkwrap” or “clickwrap” agreements, are binding. If any provision of this Agreement are found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
- Force Majeure. C2d.in shall not be liable for any delay in performing or failure to perform C2d.in’s obligations hereunder where such delay or failure results from any cause beyond C2d.in’s reasonable control, including, without limitation, cyber-attacks, mechanical, electronic or communications failures, acts of God, terrorism, war, natural disasters, failure of any telecommunications or transportation or of any third party provider or supplier (e.g., host or app store providers) or labor disputes.
- Assignment. This Agreement is personal to Customer, and is not assignable, transferable or sublicensable by Customer except with C2d.in’s prior written consent. Any attempt to do so without C2d.in’s prior written consent is void. C2d.in may assign, transfer, sublicense or delegate any of C2d.in’s rights and obligations hereunder without consent.
- Notices. Unless otherwise specified in this Agreement, all notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when sent, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service.
- Headings; Interpretation. The section and paragraph headings in this Agreement are for convenience only and shall not affect their interpretation. Any use of “including” “for example” or “such as” in this Agreement shall be read as being followed by “without limitation.”
- Export. The parties shall comply with all applicable export and import control laws and regulations, and, in particular, shall not export or re-export the C2d.in Products without all required United States and foreign government licenses.
- Government Use. The C2d.in Products are "commercial items" as that term is defined at 48 C.F.R. 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212. Any access to or use of the C2d.in Products by any government entity is prohibited, except as expressly permitted by the terms of this Agreement. Additionally, any use by U.S. government entities must be in accordance with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4. If Customer uses the C2d.in Products in its official capacity as an employee or representative of a U.S., state or local government entity and is legally unable to accept the indemnity, jurisdiction, venue or other clauses herein, then those clauses do not apply to such entity, but only to the extent as required by applicable law.
- Publicity. Customer may not use C2d.in’s logos or trademarks in any manner without C2d.in’s prior written permission, which may be withheld in its sole discretion. Customer grants C2d.in the right to use Customer’s logos or trademarks in any case studies or marketing or publicity materials and on its website to identify Customer as a customer that uses the C2d.in Services.