Welcome, and thank you for your interest in Plethora. These Terms of Service are a legally binding agreement between you and Plethora Corporation, a Delaware corporation (“Plethora”, “we,” or “us”) regarding your use of our website at www.plethora.com (the “Site”), the Plethora Software (as defined below), as well as any products you order manufactured by us via purchase orders and all related services (“Manufacturing Services” and, together with the Site and the Plethora Software, the “Service”).
These Terms of Service provide that all disputes between you and Plethora will be resolved by BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (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 and your claims cannot be brought as a class action. Please review the Arbitration Agreement in Section 7 below for the details regarding your agreement to arbitrate any disputes with us.
1. PLETHORA SERVICES
Plethora Service Overview. Plethora is an online contract prototyping and manufacturing service that provides real-time design feedback and quoting inside your 3D CAD software using a plug-in that allows you to directly order parts. Once ordered, parts are inspected and accepted or rejected based on our ability to produce them. Our production facilities then produce and ship your parts.
Eligibility. You must be at least 18 years of age to use the Service. By agreeing to these Terms, you represent and warrant to us: (i) that you are at least 18 years of age; (ii) that you have not previously been suspended or removed from the Service; and (iii) that your registration and your use of the Service is in compliance with any and all applicable laws and regulations. If you are using the Service on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind such organization to these Terms and you agree to be bound by these Terms on behalf of such organization.
Accounts and Registration. In order to submit manufacturing purchase orders, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself (such as your e-mail address or other contact information). You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password. You agree to accept responsibility for all activities that occur under your account. If you have reason to believe that your account is no longer secure, then you must immediately notify us at email@example.com.
(b) Additional Terms. Your use of the Service is subject to any and all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to on the Service (the “Additional Terms”). All such Additional Terms are hereby incorporated by reference into, and made a part of, these Terms.
Prohibited Conduct. BY USING THE SERVICE YOU AGREE NOT TO:
(a) use the Service for any illegal purpose, or in violation of any local, state, national, or international law;
(b) violate, or encourage others to violate, the rights of third parties, including by infringing or misappropriating third party intellectual property rights;
(c) interfere with security-related features of the Service, including by (i) disabling or circumventing features that prevent or limit use or copying of any content, or (ii) reverse engineering or otherwise attempting to discover the source code of the Service or any part thereof except to the extent that such activity is expressly permitted by applicable law;
(d) interfere with the operation of the Service or any user’s enjoyment of the Service, including without limitation by (i) uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code, (ii) making unsolicited offers or advertisements to other users of the Service, (iii) attempting to collect, personal information about users or third parties without their consent; or (iv) interfering with or disrupting any networks, equipment, or servers connected to or used to provide the Service, or violating the regulations, policies, or procedures of such networks, equipment, or servers;
(e) perform any fraudulent activity including impersonating any person or entity, claiming false affiliations, accessing the Service accounts of others without permission, or falsifying your age or date of birth;
(f) sell or otherwise transfer the access granted herein or any Plethora Materials (as defined below) or any right or ability to view, access, or use any Materials; or
(g) attempt to do any of the foregoing in this Section 1.5, or assist or permit any persons in engaging in any of the activities described in this Section 1.5.
2. END USER LICENSE AGREEMENT
(a) “Documentation” means the user documentation that we may provide, in all forms, relating to the Plethora Software (e.g., user manuals, on-line help files).
(b) “Plethora Software” means our software plugin for 3D CAD design software, which is downloadable from the Site in executable object code form.
(c) “Unauthorized Use” means any use, reproduction, distribution, disclosure, possession, examination, or other activity involving any part of the Plethora Software or Documentation that is not expressly authorized under these Terms.
Use of the Plethora Software. Subject to the terms and conditions contained in these Terms, we grant you a limited, worldwide, non-exclusive, non-transferable license, without right to sublicense, to download, install, and use a licensed copy of the Plethora Software in accordance with the Documentation, solely in connection with your internal business operations.
Use of the Documentation. Subject to the terms and conditions contained in these Terms, we grant you a limited, worldwide, non-exclusive, non-transferable license, without right of sublicense, to reproduce, without modification, and internally use a reasonable number of copies of the Documentation solely in connection with your internal use of the Plethora Software in accordance with these Terms.
Reservation of Rights. The Plethora Software and Documentation are licensed, not sold, by us to you, and nothing in these Terms will be interpreted or construed as a sale or purchase of the Plethora Software or Documentation. You will not have any rights in or to the Plethora Software or Documentation except as expressly granted in these Terms. We reserve to ourselves all rights to the Plethora Software and Documentation not expressly granted to you in accordance with these Terms. We retain all intellectual property rights in and to the Plethora Software and Documentation. You acknowledge that the Plethora Software and Documentation, all copies of the Plethora Software and Documentation, and any know-how and trade secrets related to the Plethora Software or Documentation are the sole and exclusive property of Plethora and contain our confidential and proprietary materials. You hereby irrevocably assign to us all right, title, and interest in and to all authorized and unauthorized derivative works of the Plethora Software or Documentation created by you.
General Restrictions. Except as otherwise explicitly provided in these Terms or as may be expressly permitted by applicable law, you will not, and will not permit or authorize third parties to: (a) reproduce, modify, translate, enhance, decompile, disassemble, reverse engineer, or create derivative works of the Plethora Software;(b) rent, lease, or sublicense the Plethora Software or Documentation;(c) use the Plethora Software on a service bureau or application service provider basis; (d) provide, divulge, disclose, make available to, or permit the use of the Plethora Software by any third party; (e) circumvent or disable any technological or security features or measures in the Plethora Software, including to attempt to discern the source code for the Plethora Software.
Open Source Software. Certain modules contained in the Plethora Software may include software that is subject to open source terms (collectively, "Open Source Software"). Please visit the Site at www.plethora.com/opensource to obtain the terms of any applicable open source licenses. You agree that all Open Source Software (if any) is and will remain subject to the terms and conditions under which it is provided. It is understood that such terms and conditions may require the source code (including derivative works and collective works) to be made available to the public for use in accordance with the terms and conditions applicable to the Open Source Software.
Proprietary Rights Notices. You will neither alter nor remove any copyright notice or other proprietary rights notices that may appear on the Plethora Software or Documentation.
Compliance with Laws. You will use the Plethora Software and Documentation in compliance with all applicable laws and regulations, and refrain from any unethical conduct or any other conduct that tends to damage our reputation.
Export. The Plethora Software may be subject to United States export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. You must comply strictly with all such regulations that are now or later in effect and acknowledge that you have the responsibility to obtain licenses to export, reexport, or import the Plethora Software or Documentation.
No Warranties. You will not make or publish any representations, warranties, or guarantees on our behalf concerning the Plethora Software or Documentation without our specific prior written approval.
Protection against Unauthorized Use. You acknowledge that the Plethora Software and any other materials that we furnish to you involve our valuable proprietary rights. You will take appropriate steps and precautions to protect the Plethora Software. Without limiting the generality of the foregoing, you will use your best efforts to prevent any Unauthorized Use and immediately notify us in writing of any Unauthorized Use that comes to your attention. In the event of any Unauthorized Use by anyone who obtained access to the Plethora Software directly or indirectly through you or any of your employees, agents, representatives, or contractors, you will take all steps reasonably necessary to terminate such Unauthorized Use and to retrieve any copy of the applicable Plethora Software in the possession or control of the person or entity engaging in such Unauthorized Use. You will provide us with such cooperation and assistance related to any such Unauthorized Use as we may reasonably request.
3. PURCHASE AND MANUFACTURE OF PRODUCTS
(a) “Build Schedule” means the manufacturing schedule provided to you as part of the Order Request Form which specifies the Product to be manufactured, including the quantity of each Product, shipping instructions and requested delivery date.
(b) “FCA” means Free Carrier at our facility per INCOTERMS 2010. For FCA terms, we will utilize the carriers selected by you in the check out process for the transit from our facility to your shipping address.
(c) “in writing” means written documents, EDI with phone confirmation, verified faxes and successfully transmitted e-mails.
(d) “Manufacturing Services” means the services performed by Plethora hereunder which includes manufacturing, testing, configuring, assembling, packaging, and shipping of the Production Run, including any Additional Services.
(e) [“Materials Declaration Requirements” means any requirements, obligations, standards, duties or responsibilities pursuant to any environmental, product composition, ecodesign (Directive 2009/125/EC), energy use, energy efficiency or materials declaration laws, directives, or regulations, including international laws and treaties regarding such subject matter; and any regulations, interpretive guidance or enforcement policies related to any of the foregoing, including for example: Directive 2002/95/EC and Directive 2011/65/EU of the European Parliament and of the Council of 27 January 2003 on the restriction of the use of certain hazardous substances in electrical and electronic equipment (“RoHS”), Directive 2012/19/EU of the European Parliament and of the Council of 27 January 2003 on waste electrical and electronic equipment (“WEEE”), Directive 2009/15/EC of the European Parliament and of the Council of 21 October 2009 establishing a framework for the setting or ecodesign requirements for energy-related products (and applicable implementing measures thereunder) and European Union Member State implementations of the foregoing, or similar laws in Switzerland or the European Economic Area; Regulation (EC) No. 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorization and Restriction of Chemicals (“REACH”); the People’s Republic of China (PRC) Measures for the Administration of the Control of Pollution by Electronic Information Products (电子信息产品污染控制管理办法) promulgated on February 28, 2006 (including any pre-market certification (“CCC mark”) requirements thereunder and including relevant standards adopted by the PRC Ministry of Information Industry or other applicable PRC authority); PRC General Administration of Quality Supervision, Inspection and Quarantine’s Circular 441 (2006); Japanese Industrial Standard C0950:2005; the California Electronic Waste Recycling Act of 2003; or other similar legislation; each of which as may be amended or updated from time to time.]
(f) “Order Request Form” means the document containing the specifications for a Product, the number of units of the Product ordered, shipping instructions, and other information regarding such Product that you submit to us via the check out process and which constitutes your offer to and request of us to manufacture the Product in accordance with the information contained therein.
(g) “Plethora Created Intellectual Property” means any discoveries, inventions, technical information, procedures, manufacturing or other processes, software, firmware, technology, know-how or other intellectual property rights newly created or developed, and reduced to practice by or for us in (i) preparing any Product provided pursuant to these Terms, or (ii) performing the Manufacturing Services or any other work provided pursuant to these Terms; but will not include any Plethora Existing Intellectual Property or Plethora Manufacturing Process.
(h) “Plethora Existing Intellectual Property” means any discoveries, inventions, technical information, procedures, manufacturing or other processes, software, firmware, technology, know-how or other intellectual property rights owned or developed by Plethora outside of these Terms or owned or controlled by us prior to your acceptance of these Terms that are used by us in creating, or are embodied within, any Product, the Manufacturing Services or other work performed under these Terms; including all improvements, modifications or enhancements to the foregoing made by us or on our behalf.
(i) “Plethora Intellectual Property” means both Plethora Created Intellectual Property and Plethora Existing Intellectual Property, collectively.
(j) “Plethora Manufacturing Process” means our methods and processes employed to manufacture, test, configure and assemble Product manufactured for you pursuant to the terms of these Terms and all improvements, modifications or enhancements to the foregoing made by us or on our behalf.
(k) “Product” means a product that we manufacture and assemble for you pursuant to a Purchase Order.
(l) “Production Run” means the manufacture of one or more units of the same Product under a Purchase Order.
(m) “Purchase Order” means an Order Request Form submitted by you and accepted by us for the manufacture of one a Product.
(n) “Specifications” means the technical specifications for manufacturing a Product set forth in an Order Request Form.
(o) “Test Procedures” means our testing specifications, standards, procedures and parameters.
Order Request Forms and Purchase Orders.Using the Plethora Software, you may prepare one or more Order Request Forms to request that we manufacture Products for you as follows:
(a) Each Order Request Form applies to one Production Run. Prior to submitting the Order Request Form to us, you will have the opportunity to review your order, including the Specifications for the Product, number of unites of the Product ordered, shipping instructions, and the total cost for the order.
(b) At the time you submit an Order Request Form, we will charge your credit card for the manufacture and shipping of the Production Run (“Upfront Payment”), and we will hold the Upfront Payment in escrow.
(c) We will review your Order Request Form following its submission and respond to you within 5 business days of its submission.
(d) If we confirm that the Specifications are producible, we will accept your Order Request Form and create a Purchase Order, and notify you via email that the Purchase Order has entered the production queue.
(e) If we do not accept your Order Request Form, we will notify you via email with suggestions on any changes or modifications to the Specifications that would help it become producible.
(f) Upon your receipt of our notice of rejection, you may either amend the Order Request Form and resubmit it, or cancel your order and be refunded the full amount of the Upfront Payment. If you choose to resubmit, we will charge or refund you, as applicable, any difference between the Upfront Payment and the cost of manufacturing and shipping the Production Run under the resubmitted Order Request Form.
BY SUBMITTING AN ORDER REQUEST FORM FOR OUR REVIEW AND POSSIBLE ACCEPTANCE, YOU REPRESENT THAT YOU HAVE REVIEWED THE INFORMATION CONTAINED IN THE ORDER REQUEST FORM AND THAT ALL INFORMATION CONTAINED THEREIN IS ACCURATE AND CORRECT.
Manufacturing Services. After we create a Purchase Order, we will manufacture a single prototype of the Product in accordance with the Specifications and test the Product in accordance with the Test Procedures. If it passes the Test Procedures, we will proceed with manufacturing the entire Production Run and have the Production Run shipped to you in accordance with the applicable Purchase Order. If the prototype does not pass the Test Procedures, we will promptly notify you of the failure and refund the Upfront Payment.
YOU ARE SOLELY RESPONSIBLE FOR THE SUFFICIENCY AND ADEQUACY OF THE SPECIFICATIONS AND WILL HOLD US HARMLESS FOR ANY CLAIM ARISING THEREFROM.
Packaging and Shipping. Plethora will package and ship the Production Run in accordance with shipping instructions contained in the Purchase Order.
Clearance. You represent and warrant that you have conducted, and will conduct, all patent, trademark and copyright searches necessary to identify and evaluate any potential infringement claims with respect to the Product.
Equitable Adjustment. In the event that our cost of performance significantly changes due to causes beyond our reasonable control, we will be entitled to an equitable adjustment to price or schedule on any open Build Schedules. Such adjustment will be subject to the supporting documentation provided by us. We will be entitled to suspend performance, after thirty (30) days notice, until such adjustments are negotiated by the parties in good faith and implemented through written change orders.
Materials Declaration. You represent and warrant that the Product is not subject to Materials Declaration Requirements.
Product Evaluation. You will have 5 business days to evaluate each Production Run to determine if the Products conform, in all material respects, to the Specifications (“Evaluation Period”). You must give us written notice of any rejection of a Product within the Evaluation Period. Such written notice of rejection of a Product for failure to materially conform to the Specifications must include a detailed and complete description of your basis for asserting that the Product does not materially conform to the Specifications (“Specification Notice”). If you fail to provide such Specification Notice to us within the Evaluation Period, such Product will be deemed to comply with the Specifications. If we agree with your assessment in the Specification Notice that the Product fails to materially comply with the Specifications, then we will pay for the cost of returning the Products to us; provided, however, that if, upon our receipt of the Products, we determine that the Products have been subjected to any occurrence or condition that would void the Plethora warranty set forth in Section 4.1, then you will be solely responsible for the cost of returning the Products, as well as for our time spent in testing the Products and returning the Products to you. If we dispute the basis for rejection set forth in a Specification Notice, we will provide you with written notice of the same within 10 business days following our receipt of the Specification Notice (“Notice of Disputed Defect”). Any such dispute will be resolved by you and Plethora in accordance with the provisions of Section 7. Any specified times for delivery of such Products will be tolled during the dispute resolution procedure set forth in Section 7. If we do not dispute the basis for rejection set forth in a Specification Notice we will follow our standard return process as set forth in Section 4.2. The evaluation procedures set forth in this Section 3.8 will apply to any redelivered Product.
Delivery, Risk of Loss and Payment Terms. For purposes of these Terms, delivery will be FCA (per Incoterms 2010) our facility and deemed to have occurred, and all title and risk of loss will be transferred to you when Products (or any other items) are tendered to the carrier or forwarder approved by you.
Import and Export. We will not ship any Products outside of the United States. You agree that you will not export, re-export, resell or transfer, or otherwise request us to ship or deliver any Product, assembly, component or any technical data or software which violate any export controls or limitations imposed by the United States or any other governmental authority, or to any country for which an export license or other governmental approval is required at the time of export without first obtaining all necessary licenses and approvals and paying all duties and fees.
Payment. Before you submit an order for Products via an Order Request Form, you will have an opportunity to review and accept the applicable fees that you will be charged. All fees are in U.S. Dollars and, except as expressly provided in these Terms, are non-refundable. We will charge the payment method you specify at the time of purchase. You authorize Plethora to charge all sums described herein to such payment method. If you pay any applicable fees with a credit card, we may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase. We may change the fees for the Service or any feature of the Service, including by adding additional fees or charges, on a going-forward basis at any time.
Taxes. You will be responsible for all federal, foreign, state and local sales, use, excise and other taxes (except taxes based on our income), all delivery, shipping, and transportation charges and all foreign agent or brokerage fees, document fees, custom charges and duties.
Confidentiality. We agree to treat as your confidential information any designs, diagrams, schematics, files, including Autodesk Inventor files, Solidworks files, PLEB files, and STEP files, and other information that you submit to Plethora (other than information pertaining to pricing, shipping information, and the other commercial terms for the manufacture and shipping of the Production Run) in connection with your submission of an order for Products (“Your Confidential Information”). We agree not to use any of Your Confidential Information for any purpose except in connection with our manufacturing of Products for you. We will not disclose any of Your Confidential Information to any third parties, and we agree not to reverse engineer, disassemble, or decompile any of Your Confidential Information. Plethora will use its reasonable best efforts to protect the secrecy of and avoid any unauthorized disclosure of Your Confidential Information. We will take at least those measures that we take to protect Plethora’s own highly confidential information when protecting Your Confidential Information. Our obligation to maintain the confidentiality of Your Confidential Information will not apply to any information that (a) was publicly known prior to the time of disclosure by you to Plethora; (b) became publicly known after your disclosure of Your Confidential Information to Plethora through no action or inaction of Plethora; (c) was in the possession of Plethora, without confidentiality restrictions, at the time of disclosure by you, as shown by Plethora’s files and records; or (d) was independently developed or conceived without use of or reference to Your Confidential Information. You acknowledge that we have no obligation to store or otherwise keep any of Your Confidential Information once we have finished performing the Manufacturing Services and that we may delete or destroy any items of Your Confidential Information after that time. We acknowledge that any breach or threatened breach of this Section 3.13 could cause irreparable harm to you, and in addition to any other remedies at law or in equity that you may have, you will be entitled, without the requirement of posting a bond or other security, to seek equitable relief, including injunctive relief and specific performance.
4. WARRANTY, DISCLAIMERS AND LIMITATION OF LIABILITY
Plethora Warranty. We warrant that at the time of manufacture, the Product will conform in all material respects to the Specifications. The above warranty will remain in effect during the Evaluation Period. This warranty is extended to, and may only be enforced by, you.
Repair or Replacement of Defective Product. If you notify us in writing within the Evaluation Period and if we agree with your assessment in the Specification Notice that the Product fails to materially comply with the Specifications, then we will either (a) correct any issue, manufacture the Product, and ship it to you as soon as possible at no additional cost to you; or (b) if we determine that we cannot correct the issue or manufacture the Product to the Specifications, we will refund to you the Upfront Payment. If, following your return of any Products, we find no breach of the warranty, then you will reimburse us for all fees, costs and expenses incurred to analyze and, if requested by you, repair or replace the Products and you will bear responsibility for all transportation costs to and from our designated repair facility.
Limitation of Warranty.
THE REMEDY SET FORTH IN SECTION 4.2 CONSTITUTES YOUR SOLE AND EXCLUSIVE REMEDY FOR A BREACH OF THE WARRANTY MADE BY US HEREIN OR ANY OTHER OF OUR OBLIGATIONS HEREUNDER. THE WARRANTY SET FORTH IN SECTION 4.1 IS IN LIEU OF, AND WE EXPRESSLY DISCLAIM (AND YOU EXPRESSLY WAIVE), ALL OTHER WARRANTIES AND REPRESENTATIONS OF ANY KIND WHATSOEVER WHETHER EXPRESS, IMPLIED, STATUTORY, ARISING BY COURSE OF DEALING OR PERFORMANCE, CUSTOM, USAGE IN THE TRADE OR OTHERWISE, INCLUDING COMPLIANCE WITH MATERIALS DECLARATION REQUIREMENTS, ANY COMPONENT WARRANTY, ANY WARRANTY OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OR INFRINGEMENT OR MISAPPROPRIATION OF ANY RIGHT, TITLE OR INTEREST OF COMPANY OR ANY THIRD PARTY. YOU UNDERSTAND AND AGREE THAT YOU WILL HAVE FULL AND EXCLUSIVE LIABILITY WITH RESPECT TO ANY PRODUCT, WHETHER FOR PRODUCT DESIGN LIABILITY, PRODUCT LIABILITY, DAMAGE TO PERSON OR PROPERTY OR INFRINGEMENT OR MISAPPROPRIATION OF THIRD PARTY RIGHTS. NO ORAL OR WRITTEN STATEMENT OR REPRESENTATION BY PLETHORA, ITS AGENTS OR EMPLOYEES WILL CONSTITUTE OR CREATE A WARRANTY OR EXPAND THE SCOPE OF ANY WARRANTY HEREUNDER.
OUR WARRANTY WILL NOT APPLY TO ANY PRODUCT WE DETERMINE TO HAVE BEEN SUBJECTED TO TESTING FOR OTHER THAN SPECIFIED CHARACTERISTICS OR TO OPERATING OR ENVIRONMENTAL CONDITIONS IN EXCESS OF THE MAXIMUM VALUES ESTABLISHED IN APPLICABLE SPECIFICATIONS, OR TO HAVE BEEN THE SUBJECT OF MISHANDLING, ACCIDENT, MISUSE, NEGLECT, IMPROPER TESTING, IMPROPER OR UNAUTHORIZED REPAIR, ALTERATION, DAMAGE, ASSEMBLY, PROCESSING OR ANY OTHER INAPPROPRIATE OR UNAUTHORIZED ACTION OR INACTION THAT ALTERS PHYSICAL OR ELECTRICAL PROPERTIES. THIS WARRANTY DOES NOT APPLY TO ANY DEFECT IN THE PRODUCT ARISING FROM ANY DRAWING, DESIGN, SPECIFICATION, PROCESS, TESTING OR OTHER PROCEDURE, ADJUSTMENT OR MODIFICATION SUPPLIED OR APPROVED BY YOU.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR ANY MATERIALS OR CONTENT AVAILABLE ON OR THROUGH THE SERVICE, INCLUDING ANY PRODUCTS, WILL CREATE ANY WARRANTY REGARDING ANY OF THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU ASSUME ALL RISK FOR ALL DAMAGES THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICE OR PRODUCTS, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICE AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE SERVICE AND ANY ASSOCIATED SITES OR SERVICES AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM USED IN CONNECTION WITH THE SERVICE) OR LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICE OR THE DOWNLOAD OR USE OF SUCH MATERIALS OR CONTENT.
SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
Limitation of Liability.
IN NO EVENT WILL WE BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE, THE PRODUCTS, OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR ANY OTHER LEGAL THEORY, WHETHER OR NOT WE HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE.
YOU AGREE THAT OUR AGGREGATE LIABILITY TO YOU FOR ANY AND ALL CLAIMS ARISING OUT OF RELATING TO THE USE OF OR ANY INABILITY TO USE THE SERVICE (INCLUDING ANY PRODUCTS OR ANY OTHER MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE) OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO USD $100.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 4.4 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
5. Plethora Existing Intellectual Property.
Plethora Existing Intellectual Property. We retain all right, title, and interest in and to any Plethora Existing Intellectual Property. Upon full payment of all monies due and owing under these Terms, we will grant to you a worldwide, non-exclusive, fully paid-up, royalty free right and license under our rights in and to the Plethora Existing Intellectual Property only insofar as is required for you to use, sell or distribute the Product provided as part of the Manufacturing Services performed by us pursuant to these Terms; provided, however, that no license or other rights to manufacturing processes or manufacturing process improvements is granted hereunder.
Plethora Created Intellectual Property. We retain all right, title, and interest in and to any Plethora Created Intellectual Property that is prepared as part of the Manufacturing Services or into any other work provided pursuant to these Terms or any other related agreement executed you and Plethora.
Infringement Defense. We will defend you from any actual or threatened third party claim that the Plethora Software infringes or misappropriates any copyright or trade secret of any third party at any time prior to the termination of these Terms if (a) you give us prompt written notice of the claim; (b) we have full and complete control over the defense and settlement of the claim; (c) you provide assistance in connection with the defense and settlement of the claim as we may reasonably request; and (d) you comply with any settlement or court order made in connection with the claim (e.g., relating to the future use of any infringing materials).
Infringement Indemnification. We will indemnify you against (a) all damages, costs, and attorneys’ fees finally awarded against you in any proceeding under Section 6.1; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by you in connection with the defense of such proceeding (other than attorneys’ fees and costs incurred without our consent after we have accepted defense of such claim); and (c) if any proceeding arising under Section 6.1 is settled, all amounts paid to any third party agreed to by us in settlement of any such claims.
Exclusions. We will have no obligation under this Section 6 for any infringement to the extent that it arises out of or is based upon (a) the combination, operation, or use of the Plethora Software if such infringement would have been avoided but for such combination, operation, or use; (b) designs, requirements, or specifications for the Plethora Software required or provided by you, if the alleged infringement would not have occurred but for such designs, requirements, or specifications; (c) use of the Plethora Software outside of the scope of the license granted to you; (d) your failure to use the latest release of the Plethora Software or to comply with instructions provided by Plethora, if the alleged infringement would not have occurred but for such failure; (e) any modification of the Plethora Software not made by Plethora where such infringement would not have occurred absent such modification; or (f) Unauthorized Use of the Plethora Software. You will reimburse us for any costs or damages that result from these actions.
Exclusive Remedy. This Section 6 states our sole and exclusive liability, and your sole and exclusive remedy, for the actual or alleged infringement of any third party intellectual property right by the Plethora Software.
Defense. You will defend us (including our affiliates and our respective officers, directors, members, employees, consultants, and agents) from any actual or threatened third party claim arising out of, based upon, or in any way connected with (a) your access to, use of, or alleged use of the Service; (b) your violation of these Terms or any representation, warranty, or agreements referenced herein, or any applicable law or regulation; (c) your violation (or the violation by the Specifications, Product, or any information, technology and processes supplied or approved by you or otherwise required by you of us) of any third-party right, including any intellectual property right, publicity, confidentiality, property or privacy right; (d) Specifications, any Product, or any information, technology and processes supplied or approved by you or otherwise required by you; (e) actual or alleged noncompliance with Materials Declaration Requirements; (f) product liability alleging that any item in subsection (d) has caused or will in the future cause damages of any kind; or (g) any disputes or issues between you and any third. We will: (i) give you prompt written notice of the claim; (ii) grant you full and complete control over the defense and settlement of the claim; (iii) assist you with the defense and settlement of the claim as you may reasonably request and at your expense; and (iv) comply with any settlement or court order made in connection with the claim.
Indemnification. You will indemnify us against: (a) all damages, costs, and attorneys’ fees finally awarded against us in any proceeding under Section 6.5; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by us in connection with the defense of such proceeding (other than attorneys’ fees and costs incurred without your consent after you have accepted defense of such claim); and (c) if any proceeding arising under Section 6.5 is settled, you will pay any amounts to any third party agreed to by you in settlement of any such claims.
7. Dispute Resolution and Arbitration
Generally. In the interest of resolving disputes between you and Plethora in the most expedient and cost effective manner, you and Plethora agree that any and all disputes arising in connection with these Terms will be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes, but is not limited to all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether the claims arise during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND PLETHORA ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
Exceptions. Notwithstanding subsection 7.1, we both agree that nothing herein will be deemed to waive, preclude, or otherwise limit either of our right to (a) bring an individual action in small claims court, (b) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available, (c) seek injunctive relief in a court of law, or (d) to file suit in a court of law to address intellectual property infringement claims.
Arbitrator. Any arbitration between you and Plethora will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Plethora.
Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or in the event that we do not have a physical address on file for you, by electronic mail (“Notice”). Our address for Notice is: Plethora Corporation, 701 Cesar Chavez St, San Francisco, CA 94124. The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or Plethora may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Plethora will not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. In the event our dispute is finally resolved through arbitration in your favor, Plethora will pay you (i) the amount awarded by the arbitrator, if any, (ii) the last written settlement amount offered by us in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.00, whichever is greater.
Fees. In the event that you commence arbitration in accordance with these Terms, we will reimburse you for your payment of the filing fee, unless your claim is for greater than $10,000, in which case the payment of any fees must be decided by the AAA Rules. Any arbitration hearings will take place at a location to be agreed upon in San Francisco County, California, provided that if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephonic hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In such case, you agree to reimburse us for all monies previously disbursed by us that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
No Class Actions. YOU AND PLETHORA AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Plethora agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
Modifications. In the event that we make any future change to this arbitration provision (other than a change to our address for Notice), you may reject any such change by sending us written notice within 30 days of the change to Plethora’s address for Notice, in which case your account with Plethora may be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject will survive.
Enforceability. If Subsection 7.6 is found to be unenforceable or if the entirety of this Section 7 is found to be unenforceable, then the entirety of this Section 7 will be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in Section 8.5 will govern any action arising out of or related to these Terms.
Digital Millennium Copyright Act
(a) DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to internet service providers (17 U.S.C. §512, as amended). If you have any complaints with respect to material posted on the Site, you may contact our Designated Agent at the following address:
701 Cesar Chavez St
San Francisco, CA 94124
(b) Any notice alleging that materials hosted by or distributed through the Site infringe intellectual property rights must include the following information:
(i.) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
(ii.) a description of the copyrighted work or other intellectual property that you claim has been infringed;
(iii.) a description of the material that you claim is infringing and where it is located on the Site;
(iv.) your address, telephone number, and email address;
(v.) a statement by you that you have a good faith belief that the use of the materials on the Site of which you are complaining is not authorized by the copyright owner, its agent, or the law; and
(vi.) a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
Modification of these Terms. We reserve the right, at our discretion, to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. In the event that a change to these Terms materially modifies your rights or obligations, you will be required to accept such modified terms in order to continue to use the Service. Material modifications are effective upon your acceptance of such the modified Terms. Immaterial modifications are effective upon publication. For the avoidance of doubt, disputes arising under these Terms will be resolved in accordance with these Terms in effect that the time the dispute arose.
Termination of Service; Discontinuation and Modification of the Service. If you violate any provision of these Terms, your permission to use the Service will terminate automatically. Additionally, we may, in our sole discretion, terminate your user account on the Service or suspend or terminate your access to the Service at any time, with or without notice. We also reserve the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service) without notice to you. We will have no liability whatsoever on account of any change to the Service or any suspension or termination of your access to or use of the Service. You may terminate your account at any time by contacting customer service at firstname.lastname@example.org. If you terminate your account, you will remain obligated to pay all outstanding fees, if any, relating to your use of the Service incurred prior to termination.
Ownership; Proprietary Rights. The Service is owned and operated by Plethora. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service (the “Plethora Materials”) provided by us are protected by all relevant intellectual property and proprietary rights and applicable laws. All Plethora Materials contained in the Service are the property of Plethora or our third-party licensors. Except as expressly authorized by us, you may not make use of the Plethora Materials. We reserve all rights to the Plethora Materials not granted expressly in these Terms.
Governing Law. These Terms are governed by the laws of the State of California without regard to conflict of law principles. To the extent that any lawsuit or court proceeding is permitted hereunder, you and Plethora agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within San Francisco County, California for the purpose of litigating all such disputes. We operate the Service from our offices in California, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
Contact Information. The services hereunder are offered by Plethora Corporation, located at 701 Cesar Chavez St, San Francisco, CA 94124. You may contact us by sending correspondence to the foregoing address or by emailing us at email@example.com. If you are a California resident, you may have these Terms mailed to you electronically by sending a letter to the foregoing address with your electronic mail address and a request for these Terms.
Relationship of Parties. We will perform our obligations under these Terms as an independent contractor. Nothing contained in these Terms may be construed to imply a partnership or joint venture relationship between you and Plethora.
Insurance. You will keep your business and properties insured at all times against such risks for which insurance is usually maintained by reasonably prudent persons engaged in a similar business (including insurance for hazards and insurance against liability on account of damage to persons or property and insurance under all applicable workers’ compensation laws). The insurance maintained will be in such monies and with such limits and deductibles usually carried by persons engaged in the same or a similar business. Nothing herein regarding insurance either limits or increases your indemnification of us.
Force Majeure. Neither you nor Plethora will be liable for any delay in performing, or for failing to perform, its obligations under these Terms (other than the payment of money) resulting from any cause beyond a party’s reasonable control including, acts of God; blackouts; power failures; inclement weather; fire; explosions; floods; hurricanes; typhoons; tornadoes; earthquakes; epidemics; strikes; work stoppages; labor, component or material shortages; slow-downs; industrial disputes; sabotage; accidents; destruction of production facilities; riots or civil disturbances; acts of government or governmental agencies, including changes in law or regulations that materially and adversely impact the party, and U.S. Government priority orders or contracts; provided that the party affected by such event promptly notifies (in no event more than 10 business days of discovery of the event) the other party of the event.
Interpretation. The parties have had an equal opportunity to participate in the drafting of these Terms and the attached exhibits. No ambiguity will be construed against any party based upon a claim that that party drafted the ambiguous language. The headings appearing at the beginning of several sections contained in these Terms have been inserted for identification and reference purposes only and must not be used to construe or interpret these Terms. Whenever required by context, a singular number will include the plural, the plural number will include the singular, and the gender of any pronoun will include all genders. Any reference to any agreement, document or instrument will mean such agreement, document or instrument as amended or modified and in effect from time to time in accordance with the terms thereof. Whenever the words “include”, “includes” or “including” are used in these Terms, they will be deemed to be followed by the words “without limitation.” Whenever the words “hereunder,” “hereof,” “hereto,” and words of similar import are used in these Terms, they will be deemed references to these Terms as a whole and not to any particular Article, Section or other provision hereof. The word “or” is used in the inclusive sense of “and/or.” The terms “or,” “any” and “either” are not exclusive.