BY CLICKING/CHECKING THE "I AGREE" BUTTON/BOX, ACCESSING THE DIGITAL FOLIO WEBSITE, OR UTILIZING THE DIGITAL FOLIO SERVICES OR ASSOCIATED SOFTWARE, YOU AGREE, REPRESENT, AND WARRANT THAT YOU: (I) ARE AUTHORIZED TO SIGN FOR AND BIND YOURSELF AND ANY OTHER PARTY ON WHOSE BEHALF YOU USE THE SERVICE AND/OR SOFTWARE AND (II) AGREE FOR YOURSELF AND THE SUBSCRIBER (DEFINED BELOW) TO BE BOUND BY ALL OF THIS AGREEMENT (INCLUDING THE DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY SECTIONS SET FORTH BELOW) TO THE EXCLUSION OF ANY OTHER RIGHTS AND OBLIGATIONS, SUCH AS ANY RIGHTS, OBLIGATIONS, OR OTHER TERMS LISTED ON A PURCHASER ORDER OR THE LIKE SUBSCRIBER MAY PROVIDE DIGITAL FOLIO AND SUBSCRIBER AGREES THAT ANY SUCH RIGHTS, OBLIGATIONS, OR OTHER TERMS LISTED ON SUCH PURCHASE ORDER OR THE LIKE ARE HEREBY NULL AND VOID. Digital Folio reserves the right, exercised in its sole discretion, to change, modify, add, or delete portions of this Agreement at any time in accordance with the procedures set forth below in the section labeled "Modifications." IF YOU DO NOT AGREE WITH THESE TERMS OF SERVICE, CLICK THE "CANCEL"/"BACK" BUTTON AND DO NOT USE THE WEBSITE, SERVICES, OR SOFTWARE.
Digital Folio Services. This is a legal agreement ("Agreement") between You (hereinafter referred to as "You" or "Subscriber") and the Digital Folio entity listed in Section 10.4 below ("Digital Folio"), for use of the Digital Folio software, sites, or services selected or registered by You (the "Services"). Services in this Agreement do not refer to or include any professional services or works for hire ("Professional Services"). In order to use certain Services, Subscriber may be required to download content, download software, and/or agree to supplemental terms and conditions. These supplemental terms and conditions are hereby incorporated into this Agreement. Digital Folio may elect to change or supplement the terms of this Agreement from time to time at its sole discretion. Digital Folio will exercise commercially reasonable business efforts to provide notice to Subscriber of any material changes to this Agreement. Within five (5) business days of posting changes to this Agreement, they will be binding on Subscriber. If Subscriber does not agree with the changes, Subscriber should discontinue using the Services. If Subscriber continues using the Services after such a five (5)-business day period, Subscriber will be deemed to have accepted the changes to the terms of this Agreement. The most current version of this Agreement can be reviewed by clicking on the "Terms of Service" hypertext link located at the bottom of Digital Folio's web pages. Use of the Services requires one or more compatible devices, Internet and wireless access (fees may apply), and certain software (fees may apply), and may require obtaining updates or upgrades from time to time. Because use of the Services involves hardware, software, and Internet access, Subscriber's ability to use the Services may be affected by the performance of these elements. High-speed Internet access is recommended. Subscriber acknowledges and agrees that such system requirements, which may change from time to time, are Subscriber's responsibility.
Subscriber Information. Subscriber may be required to provide information in order to register for and/or use certain Services. Subscriber warrants that all such information is accurate.
Changes to Services / Beta Services. Digital Folio may, at its sole discretion, and from time to time, 1) discontinue the Services or modify the features of the Services without prior notice and 2) make available additional features and/or functionalities to the Services which may, but are not required to, be added to the Services by Subscriber at an additional cost ("Cost Feature"). If Subscriber elects to add a Cost Feature, it may do so by obtaining a quote from its local Digital Folio sales department or signing up online (if available online). Digital Folio may, at its sole discretion, make available to Subscriber a "beta" version of any of the Services ("the Beta Services") for purposes of evaluation and feedback. Subscriber acknowledges that the Beta Services that Subscriber is evaluating may contain bugs, errors, and other problems and is provided to Subscriber "AS-IS." Digital Folio disclaims any warranty or liability obligations to Subscriber of any kind with respect to the Beta Services. Subscriber further acknowledges the importance of communication between Digital Folio and Subscriber during Subscriber's use of the Beta Services and hereby agrees to receive related correspondence and updates from Digital Folio. In the event Subscriber requests to opt-out from such communications, Subscriber's participation in the Beta Services will also be canceled. Subscriber also hereby acknowledges that Digital Folio has not made any representations, promises, or guarantees that the Beta Services will ever be announced or made available to anyone in the future and that Digital Folio has no express or implied obligation to Subscriber to announce or introduce the Beta Services. During the Digital Folio Beta program, Subscriber will be asked to provide feedback regarding Subscriber's use of the Beta Services. Subscriber agrees that Digital Folio is free to use and incorporate into Digital Folio products and services any suggestions, ideas, recommendations, bug reports, or other feedback (including, but not limited to, feedback on any of the Beta Services) that Subscriber provides to Digital Folio without payment of compensation to Subscriber. Digital Folio may suspend or terminate access to the Beta Services (and delete any Content or data provided to Digital Folio with respect to the Beta Services) at any time, without notice and without any liability to Subscriber.
Maintenance and Updates. Subscriber understands that Digital Folio may update the Services at any time, but is under no obligation to inform Subscriber of or furnish to Subscriber any such updates. This Agreement does not grant Subscriber any right, license, or interest in or any support, maintenance, improvements, modifications, enhancements, or updates to the Services or supporting documentation. To the extent that Digital Folio supplies any updates to Subscriber, such updates will be deemed to be subject to the terms of this Agreement unless Digital Folio indicates otherwise. Digital Folio reserves the right to charge fees for any future versions of, or updates to, the Services.
Payment. Subscriber agrees to pay any applicable fees to utilize Digital Folio Services immediately upon accepting this Agreement, or through any such alternate method as implemented by Digital Folio and as amended from time to time. Should Subscriber refuse or neglect to make any such immediate or future payment in a method acceptable to Digital Folio, Digital Folio may suspend or terminate this Agreement pursuant to Section 6.1 below.
Term and Termination.
Term and Termination of Agreement. This Agreement will commence on the date Subscriber accepts this Agreement. Subscriber may terminate this Agreement by providing thirty (30) days prior notice to Digital Folio. Such termination will be effective on the last day of the then-current term, subject to thirty (30) days prior notice. In addition to the above, Digital Folio may in its sole discretion immediately terminate this Agreement and this subscription, license and right to use any Services if a) the Subscriber declares bankruptcy, is involved in any bankruptcy proceedings, or is otherwise insolvent; b) Subscriber breaches this Agreement; c) Digital Folio is unable to verify or authenticate any information Subscriber provides to Digital Folio; d) such information is or becomes inaccurate; or e) Digital Folio decides, in its sole discretion, to discontinue offering the Service. Digital Folio shall not be liable to Subscriber or any third party for termination of the Service or use of the Services. Upon expiration or termination for any reason, Subscriber is no longer authorized to use the Services. When this Agreement is terminated and/or the subscription is canceled, Subscriber will no longer have access to data and other material Subscriber has stored in connection with any Service and such material may be deleted by Digital Folio. All disclaimers, limitations of warranties and damages, and confidential commitments set forth in this Agreement or otherwise existing at law survive any termination, expiration, or rescission of this Agreement.
Surviving Provisions. The following provisions will survive the expiration or termination of this Agreement: Sections 4, 5 (as to amounts due and owing as of this Agreement's expiration or termination date), 7, 8, 9, 10.11, and 10.12. Upon any termination of this Agreement, Subscriber must cease any further use of the Services and destroy any copies of associated software within its possession and control (to the extent not prohibited by applicable law).
Account Number/Password. Subscriber agrees that Subscriber is solely responsible for maintaining the confidentiality of Subscriber's username, account number and passwords, and solely responsible for any unauthorized usage. Subscriber is also responsible for all activities that occur under Subscriber's account. Subscriber hereby agrees to indemnify, defend, and hold Digital Folio and its affiliates, employees, officers, directors, owners, information providers, agents, licensees, licensors (the "Indemnified Parties") harmless from and against any and all liabilities, claims, costs, including reasonable attorneys' fees, incurred by the Indemnified Parties in connection with any demand, claims, action, suit, or loss arising as a result of a) any breach by Subscriber of this Agreement of use or claims arising from Subscriber's account; b) any fraud or manipulation by Subscriber; c) a third-party claim, action, or allegation of infringement based on information, data, files, or other content submitted by Subscriber; or d) any claims of credit card fraud based on any information released by Subscriber. Subscriber agrees to use best efforts to cooperate with Digital Folio in the defense of any demand, claim, action, or suit. Digital Folio reserves the right to assume the exclusive defense of any matter subject to indemnification by Subscriber at Digital Folio's own expense. Subscriber agrees to immediately notify Digital Folio of any unauthorized use of Subscriber's account of which Subscriber becomes aware.
Content. Subscriber agrees that it is solely responsible for the content of all visual, written, or audible communications and any other material ("Content") displayed, uploaded, exchanged, or transmitted on or through the Service. Under no circumstances will Digital Folio be liable to Subscriber for any loss or damages: a) arising from any Content or Content-related errors or omissions; or b) incurred as a result of the use of, access to, or denial of access to the Content. Subscriber understands and agrees that by displaying, uploading, exchanging, or transmitting Content while using the Services or otherwise providing Content as part of Services, Subscriber automatically grants (and warrants and represents it has a right to grant) to Digital Folio a worldwide, royalty-free, sublicensable (so Digital Folio affiliates, contractors, resellers, and partners can deliver the Services), perpetual, irrevocable license to use, modify, publicly perform, publicly display, reproduce, and distribute the Content solely for the purpose of offering the Services. If at any time Subscriber objects to any material on the Services, Subscriber's sole remedy is to cease using it (to the extent not prohibited by applicable law). Digital Folio does not endorse and has no control over what Subscribers or other users of the Service ("Users") post or submit to the Services. Subscriber shall contact Digital Folio Customer Support in accordance with the contact information provided in the applicable Services website if Subscriber becomes aware of misuse of the Services by any person. Digital Folio cannot guarantee the accuracy of any information submitted by any User or Content, nor any identity information about any User. Digital Folio may without notice or liability investigate any complaints and violations or suspected violations of this Agreement that come to its attention and may take any action that it believes is appropriate, including, but not limited to: rejecting; refusing to post or removing any profile; refusing to post Content or other data; or restricting, suspending, or terminating Subscriber or any User's access to Services. However, because situations and interpretations vary, Digital Folio also reserves the right not to take any action.
Communications. Subscriber agrees that Subscriber will not use the Services to send unsolicited email (i.e., "spam") in violation of applicable law; falsify any email header information when sending emails (i.e., "spoofing"); or attempt to acquire sensitive information such as usernames, passwords, and shopping details by masquerading as a trustworthy entity (i.e., "phishing"). Subscriber further agrees not to use the Services to communicate any message or material that is harassing, libelous, threatening, obscene, or that would violate the intellectual property rights of any party, give rise to civil liability, constitute a criminal offense, or is otherwise unlawful under any applicable law or regulation. Subscriber agrees to indemnify, defend, and hold harmless Digital Folio from any and all third-party claims, liability, damages, and/or costs (including, but not limited to, attorneys' fees) arising from Subscriber's violation of this Section 7.
Privacy. Use of the Services constitutes consent by Subscriber to Digital Folio's and/or its affiliates' collection and use of such information and, for European Economic Area (EEA) customers, to the transfer of such information to a location outside the EEA. Use of Sites and the Services is also subject to Digital Folio's Privacy Statement (English version located at http://www.DigitalFolio.com/home/privacypolicy), which is incorporated into this Agreement by this reference. The foregoing notwithstanding, Digital Folio may contact Subscriber via email or otherwise with information relevant to Subscriber's use of the Services and payment obligations, if any, regardless of whether Subscriber has opted out of receiving such notices. Subscriber also agrees to have Subscriber's name and/or email address listed in the header of certain communications Subscriber initiates through the Services.
Warranty Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SUBSCRIBER UNDERSTANDS AND AGREES THAT THE SERVICES, SITES, AND ANY ASSOCIATED SOFTWARE ARE PROVIDED "AS-IS" AND "AS-AVAILABLE." TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, DIGITAL FOLIO AND ITS SUPPLIERS, RESELLERS, AND AFFILIATES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. DIGITAL FOLIO AND ITS SUPPLIERS, RESELLERS, AND AFFILIATES MAKE NO WARRANTY OR REPRESENTATION REGARDING THE SERVICES; ANY INFORMATION, MATERIALS, GOODS, OR SERVICES OBTAINED THROUGH THE SERVICES OR THE SITES; OR THAT THE SERVICES WILL MEET ANY SUBSCRIBER REQUIREMENTS OR BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. Some jurisdictions do not allow the disclaimer of implied warranties, so the above disclaimer may not apply to Subscriber. This limited warranty gives Subscriber specific legal rights, and Subscriber may also have other rights which vary by jurisdiction. Subscriber agrees to indemnify, defend, and hold harmless Digital Folio, its affiliates, officers, directors, employees, consultants, agents, suppliers, and resellers from any and all third-party claims, liability, damages, and/or costs (including, but not limited to, attorneys' fees) arising from Subscriber's use of the Services, Subscriber's violation of this Agreement, or the infringement or violation by Subscriber or any other user of Subscriber's account of any intellectual property or other right of any person or entity. Without limiting the foregoing, the Services are not designed or licensed for use in environments requiring fail-safe controls, including without limitation operation of nuclear facilities, aircraft navigation/communication systems, air traffic control, and life support or weapons systems, and Digital Folio and its suppliers, resellers, and affiliates specifically disclaim any express or implied warranty of fitness for such purposes.
Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL DIGITAL FOLIO OR ITS SUPPLIERS, RESELLERS, OR AFFILIATES, BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, EXEMPLARY, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, PROCUREMENT OF SUBSTITUTE GOODS AND/OR SERVICES, OR ANY OTHER PECUNIARY LOSS) INCLUDING BUT NOT LIMITED TO CLAIMS ARISING OUT OF OR RESULTING FROM THE USE OF OR INABILITY TO USE THE SERVICES, THE SITES, OR ASSOCIATED SOFTWARE, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT OR ANY OTHER LEGAL THEORY, EVEN IF DIGITAL FOLIO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, DIGITAL FOLIO'S (AND ITS SUPPLIERS', RESELLERS', AND AFFILIATES') MAXIMUM CUMULATIVE LIABILITY AND SUBSCRIBER'S EXCLUSIVE REMEDY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY SUBSCRIBER, IF ANY, FOR THE SUBSCRIPTION SERVICE FEES IN THE PREVIOUS TWELVE (12) MONTHS PRECEDING THE EVENT OR CIRCUMSTANCES GIVING RISE TO SUCH CLAIMS EVEN IF ANY REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. THIS LIMITATION IS CUMULATIVE AND NOT PER INCIDENT (I.E., THE EXISTENCE OF TWO OR MORE CLAIMS WILL NOT ENLARGE THIS LIMIT). Because some states and jurisdictions do not allow the exclusion or limitation of liability, the above limitation may not apply to Subscriber.
Proprietary Rights. Excluding Subscriber Marks and Content, Digital Folio and/or its suppliers, as applicable, retain ownership of all proprietary rights in the Services and in all trade names, trademarks, service marks, logos, and domain names ("Digital Folio Marks") associated or displayed with the Services. Subscriber may not frame or utilize framing techniques to enclose any Digital Folio Marks or other proprietary information (including images, text, page layout, or form) of Digital Folio without Digital Folio's express written consent. Subscriber may not use any meta tags or any other "hidden text" utilizing Digital Folio Marks without Digital Folio's express written consent. Subscriber shall retain ownership of all proprietary rights, copyright, and any other rights it already holds in any Subscriber trade names, trademarks, service marks, logos, and domain names.
Assignment. Digital Folio may assign or delegate its obligations under this Agreement either in whole or in part, without the prior consent of Subscriber.
Contracting Party, Applicable Law, and Jurisdiction. This Agreement is between Subscriber and the Digital Folio entity for Subscriber's country or region. As set forth below, find the country or region where Subscriber or Subscriber's business, as applicable, is located. In that subsection Subscriber will find the Digital Folio entity with which that Subscriber is contracting, and the Digital Folio website(s), the choice of law, and the location for resolving disputes with such Digital Folio entity for that region/country. The validity, interpretation, and performance of this Agreement shall be controlled by and construed under the applicable laws specified below.
For all Regions, the Digital Folio entity is Digital Folio, Inc.. The website for this region are www.digitalfolio.com (US and Canada). Governing Law for this region is the laws of the State of Colorado, United States of America, as if performed wholly within the state and without giving effect to the principles of conflicts of law. The State and Federal courts of Colorado shall have exclusive jurisdiction over any claim arising under this Agreement.
Notwithstanding the foregoing, either party shall at all times have the right to commence proceedings in any other court of its choice for interim injunctive relief in the event of threatened or actual breach of intellectual property rights.
The parties specifically disclaim the application of the UN Convention on Contracts for the International Sale of Goods to the interpretation or enforcement of this Agreement.
Interpretation and Conflicting Terms. This Agreement will be interpreted fairly in accordance with its terms and without any strict construction in favor of or against either party. This Agreement has been prepared in the English language and such version shall be controlling in all respects and any non-English version of this Agreement is solely for accommodation purposes. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. The terms of this Agreement shall apply, regardless of any additional or conflicting terms on any purchase order, acknowledgement, quotation, prior understanding, or other correspondence or documentation submitted by Subscriber to Digital Folio, and any such additional or conflicting terms are deemed rejected by Digital Folio unless such terms are expressly agreed to by amendment to this Agreement and are executed by both Subscriber and Digital Folio. No person or entity not a party to this Agreement will be deemed to be a third-party beneficiary of this Agreement or any provision hereof.
Force Majeure. Neither party will be responsible for failure of performance due to causes beyond its control. Such causes include (without limitation) accidents, acts of God, labor disputes, actions of any government agency, shortage of materials, acts of terrorism, or the stability or availability of the Internet or a portion thereof.
Severability. If any of the provisions of Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions.
Class Actions. Subscriber agrees not to bring or participate in any class action lawsuit against Digital Folio or any of its employees or affiliates. Subscriber agrees that it will not bring a claim under this Agreement more than two (2) years after the expiration of this Agreement. The failure of Digital Folio to partially or fully exercise any right shall not prevent the subsequent exercise of such a right. The waiver by Digital Folio of any breach shall not be deemed a waiver of any subsequent breach of the same or any other term of this Agreement. No remedy made available to Digital Folio by any of the provisions of this Agreement is intended to be exclusive of any other remedy, and each and every remedy shall be cumulative and in addition to every other remedy available at law or in equity.
Waivers. The waiver of any one breach, default or right granted under this Agreement will not constitute the waiver of any subsequent breach, default, or right granted. Any provision of this Agreement held to be illegal or unenforceable will be deemed amended to conform to applicable laws or regulations, or if it cannot be so amended without materially altering the intention of the parties, it will be stricken and the remainder of this Agreement will continue in full force and effect.
Use of the Services. Subscriber may use the Services only as permitted under the terms and conditions of this Agreement or other written agreements between Subscriber and Digital Folio. Subscriber will not resell, distribute, use on a timeshare or service bureau basis, or otherwise directly generate income from the Services. Subscriber will not modify, make derivative works of, disassemble, decompile, or reverse engineer the Software, Sites, Services, or any component thereof (except to the extent expressly permitted by law).
Legal Compliance. Subscriber agrees that Subscriber will comply with all applicable laws and regulations in connection with Subscriber's use of the Services, including, but not limited to personally identifiable information sent or received by Subscriber and all applicable privacy laws and regulations. Subscriber represents that Subscriber is not less than 12 years of age. If Subscriber is over 12 but less than 18 years of age, or an emancipated minor over the age of 12, Subscriber must possess legal parental or guardian consent to register for and use the Services. Digital Folio products, technology, and the Services are subject to U.S. and local export control laws and regulations. Subscriber shall comply with such laws and regulations governing use, export, re-export, and transfer of products, technology, and Services and will obtain all required U.S. and local authorizations, permits, or licenses. Subscriber certifies that Subscriber and any third parties Subscriber invites will not use the Service from within an embargoed country. Subscriber certifies that they are not on the U.S. Department of Commerce's Denied Persons List or affiliated lists, on the U.S. Department of Treasury's Specially Designated Nationals List, or on any U.S. Government export exclusion lists. The export obligations under this clause shall survive the expiration or termination of this Agreement.
Digital Folio Software. In order to use certain Services, Subscriber may be required to download and install certain Digital Folio software ("Software"). In that event, Digital Folio hereby grants to Subscriber a limited, personal, non-exclusive, non-transferable, non-sublicensable license to use the Software as part of the Services in accordance with the terms of this Agreement. Subscriber may not use the Software for anything other than as intended by Digital Folio, and in conjunction with Subscriber's lawful use of the Services. Subscriber may not use the Software in an attempt to, or in conjunction with, any device, program, or service designed to circumvent technological measures employed to control access to, or the rights in, a content file or other work protected by the copyright laws of any jurisdiction. All rights not expressly granted by Digital Folio are hereby reserved. Subscriber agrees that Subscriber will not take any action to interfere with Digital Folio's or its suppliers' ownership of or rights in the Software. Subscriber agrees that, unless otherwise expressly permitted in this license, Subscriber will not: a) reproduce, republish, display, frame, download (except as expressly authorized herein), distribute, or transmit the Software; b) to the extent permitted under applicable law, redistribute, encumber, sell, rent, lease, loan, sublicense, assign, or otherwise transfer rights to the Software; c) modify or create any derivative works based on the Software, including customization, translation, or localization; d) copy, reproduce, reuse in another product or service, modify, alter, or display in any manner any software or files, or parts thereof, included as part of the Software; e) except to the extent expressly permitted by law, any attempt to decompile, disassemble, reverse engineer, or otherwise derive the source code of the Software or in any way ascertain, decipher, or obtain the communications protocols for accessing the Software or the underlying ideas or algorithms of the Software (e.g., in an effort to develop other applications or services that provide similar or substitute or complementary functionality to the Services); f) create or use any software other than as authorized by Digital Folio to access the Software; g) attempt to gain unauthorized access to the Software or to any account, application, platform, computer system, or network associated with the Software; h) use the Software in any way that violates this Agreement, or any other agreements to which Subscriber is a party, or any law; and i) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols, or labels in or on the Software or associated with the Services.
Export Law Assurances. The Services are subject to the United States Export Administration Regulations. No Service may be downloaded, used, or exported a) into (or to a national or resident of) Cuba, Iran, North Korea, Sudan, Syria, or any other country to which the United States has embargoed goods; or b) to any person or entity on the United States Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Denied Persons List or Entity List or otherwise designated as prohibited from receiving U.S. exports. By subscribing to the Service or using any of the Services, Subscriber represents and warrants that it is not—and is not controlled by—any such person or entity or any national or resident of any such country.
Confidentiality. Subscriber shall make reasonable efforts to maintain the confidentiality of information that has been, and will continue to be, provided to Subscriber by Digital Folio in connection with the use of the Services. Subscriber specifically agrees as follows:
Obligations. Subscriber shall (i) maintain in confidence all such information, including but not limited to the Services; (ii) not disclose any such information to anyone except Subscriber's employees, agents, and consultants (who have been informed of and acknowledge their obligation to be bound by the terms of these confidentiality terms) on a need-to-know basis; and (iii) not use Digital Folio's confidential information for any purpose other than that for which it is disclosed. All confidential information shall remain the sole property of Digital Folio. Subscriber shall have no right, title, or interest in or to the confidential information.
Confidential Information. Information considered confidential by Digital Folio includes, without limitation, information of Digital Folio relating to (i) matters of a technical nature such as trade secret processes or devices, know-how, data, formulas, inventions (whether or not patentable or copyrighted), specifications and characteristics of products or services planned or being developed, and research subjects, methods and results; (ii) matters of a business nature such as information about costs, profits, pricing, policies, markets, sales, suppliers, customers, product plans, and business concepts, plans or strategies; (iii) matters of a human resources nature such as employment policies and practices, personnel, compensation and employee benefits; (iv) other information of a similar nature not generally disclosed by Digital Folio to the public or other information Subscriber should reasonably believe to be confidential given the circumstances; (v) information concerning Subscriber's use of the Services; and (vi) the Services.
Exclusions. The obligations imposed by these confidentiality terms shall not apply to any information that (i) is proven by Subscriber to have been rightfully received from a third party without accompanying use or disclosure restrictions; or (ii) is or becomes generally publicly available through no wrongful act of Subscriber or any other person or entity with a confidentiality obligation; or (iii) is already known to Subscriber prior to the date of disclosure as evidenced by documentation bearing a date prior to the date of disclosure; or (iv) is approved for release in writing by an authorized representative of Digital Folio; or (v) is required to be disclosed pursuant to court order, duly authorized subpoena, or governmental authority (but Subscriber shall immediately give Digital Folio written notice and an opportunity to contest such required disclosure).
Remedies. The parties agree that the remedy at law for any breach of any of the covenants and agreements set forth in these confidentiality terms may be inadequate and that, in the event of any such breach or threatened breach, Digital Folio shall, in addition to all other remedies which may be available to it at law, be entitled to equitable relief in the form of preliminary and permanent injunctions without the necessity of proving damages. Subscriber further agrees that the terms of these confidentiality terms shall in no way restrict or limit any other remedies Digital Folio may have against Subscriber. Digital Folio shall be entitled to recover the costs, including reasonable attorneys' fees, to enforce its rights under these confidentiality terms.
Return of Confidential Information. Upon the written request of Digital Folio, Subscriber shall return, or certify that it has destroyed, all information disclosed under these confidentiality terms and any memorandum, diagrams, or any other documents containing any information disclosed under these confidentiality terms.
Enforceability. In the event any one or more of the provisions of these confidentiality terms shall be invalid, illegal, or unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby.
Application. This Confidentiality Agreement shall control in lieu of and notwithstanding any proprietary or restrictive legends or statements inconsistent with these confidentiality terms that may be associated with any particular information disclosed hereunder.
Surviving Obligations. The confidentiality obligations under this Agreement shall survive any termination, expirations, or rescission of this Agreement, as well as continue beyond any time in which Subscriber was using the Service.