ACCEPTANCE OF TERMS OF SERVICE
Each time that you access or use Endato Applications you signify that you have read, understand, and agree to be bound by these Terms. If you do not agree to any of the Terms, you must discontinue using Endato Applications and Services.
Contact and Electronic Communications. By accessing the Endato Applications or Services, you consent to having this agreement provided to you in electronic form and that all agreements, notices, disclosures, and other communications we provide to you electronically satisfy any legal requirements that such communications be in writing. You acknowledge that when you provide us with information in connection with a particular activity or otherwise sign up for our Services or provide any contact information, including an email address or telephone number in connection with that activity, product or service (“Contact Information”), you agree that this action constitutes a purchase or inquiry establishing a business relationship with us. You expressly consent to our communicating with you about our Services using the Contact Information you provided to us. You also attest that you have the legal authority over any telephone number you provide to us and can provide us with the authorization to contact you. This means we may contact you, in person or by recorded message, by e-mail, telephone and/or mobile telephone number (including use of automated dialing equipment), text (SMS) message, or any other means of communication that your wireless or other telecommunications device may be capable of receiving.
YOUR USE OF THE Endato APPLICATIONS
Endato provides a database of public records and publicly available sources of information aggregated for your informational purposes only. While we are constantly updating and refining our database and Services, we do not represent or warrant that the results provided will be 100% accurate and up to date and, as such, Endato shall not be responsible or liable for the accuracy, usefulness, availability or unavailability of any information transmitted or made available via the Endato Applications. Endato does not make any representation or warranty as to the character or the integrity of the person, business, or entity that is the subject of any Endato searches. Endato also reserves the right to delete any information from its databases at any time.
Endato IS NOT A CREDIT REPORTING AGENCY FOR PURPOSES OF THE FAIR CREDIT REPORTING ACT (“FCRA”). AS SUCH, THE ADDITIONAL PROTECTIONS AFFORDED TO CONSUMERS, AND OBLIGATIONS PLACED UPON CREDIT REPORTING AGENCIES, ARE NOT CONTEMPLATED BY, NOR CONTAINED WITHIN, THESE TERMS AND CONDITIONS.
Restrictions on your Use of our Services. You may not use any information obtained from our searches, including, without limitation, the Endato background checks, in connection with determining a prospective candidate’s suitability for:
Health insurance or any other insurance
Credit and/or loans
Education, scholarships or fellowships
Housing or other accommodations
Benefits, privileges or services provided by any business establishment
No Guarantee. You acknowledge that the Services are provided “as is.” You are paying for us to conduct a search on your behalf, not to return any particular result. Information is often obtained by third parties and the accuracy of the information cannot be guaranteed. Users should use extreme caution when interpreting search results. Some of the information provided in searches is based upon logic-based assumptions from information in our database compiled from public records regarding individuals’ names, addresses, ages, last names and the dates which correspond to these names, addresses and ages. We may also provide you publicly available marriage and divorce records when you conduct a search using our Services. Positive or false matches based on our assumptions or records may not provide conclusive confirmation of an individual’s status (marital or otherwise). Therefore, we urge you to independently verify any information you gather from our Endato Applications as a possibility exists that our search results could be inaccurate.
Enterprise Use Only. The Endato Applications, the content and the Services are intended for your use in accordance with these Terms. You agree that you will not, unless specifically permitted by us (i) copy, display or distribute any part of the content or Endato Applications, in any medium, without Endato’s prior written consent, or (ii) alter or modify any part of the Endato Applications other than as may be reasonably necessary to use the Endato Applications for their intended purpose. You further agree that you will not use any automated devices, such as spiders, robots or data mining techniques to download, store or otherwise reproduce, store or distribute content or to manipulate the Endato Applications or Services. You will take no action to interfere with, interrupt, destroy or limit the functionality of the Endato Applications or any computer software or hardware or telecommunications equipment. You may not use the Endato Applications or Services in any manner that could damage, disable, overburden, or impair any Endato server, or the network(s) connected to any Endato server, or interfere with any other party’s use and enjoyment of any Endato Applications or Services. You may not attempt to gain unauthorized access to any Endato Applications or Services, other accounts, computer systems or networks connected to any Endato server or to any of the Endato Applications or Services, through hacking, cracking, and distribution of counterfeit software, password mining or any other means. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Endato Applications or Services, including but not limited to using any network monitoring or discovery software to determine the architecture of Endato Applications or extract information about usage, individual identities or users. You may not reverse engineer, decompile or disassemble any software accessed through Endato Applications or Services, including any proprietary communications protocol used by Endato. You may not use information obtained from the Endato Applications to transmit any commercial, advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation, harass, offend, threaten, embarrass, or invade the privacy of any individual or entity, or violate any applicable law, regulation or rule.
You also agree to adhere to the following:
You will use the Services only for appropriate, legal purposes, and in compliance with all applicable federal, state and local laws and regulations.
You will obtain any and all necessary licenses, certificates, permits, approvals or other authorizations required by federal, state or local statute, law or regulation that govern your use of the Services.
You will not use the Services in a manner that may cause emotional or physical harm to anyone, or to “stalk” or otherwise harass another person.
You will not use the Services to seek information about or harm minors in any way.
You will not use the Services to seek information about celebrities or public figures.
You will not use the Service to promote or provide instructional information about illegal activities or promote physical harm or injury against any group or individual.
You will not resell, sell, lease, license, sublicense or otherwise commercialize any of the information you obtain from the Services without our prior written consent.
You will take reasonable steps to ensure that the information you receive from the Services is stored in a secure manner.
You will not make any phone call or send any email or text message that does not comply with CAN-SPAM, the Telephone Consumer Protection Act or any other applicable federal or state law.
You acknowledge that You are solely responsible for ensuring that telephone calls made or email or text messages sent using information obtained are in compliance with CAN-SPAM, the Telephone Consumer Protection Act, or all other applicable federal or state laws. Endato does not scrub any phone numbers displayed on PeopleFindersPro.com through the National Do Not Call Registry or any other do-not-call registries.
Legal Notices about your Searches. We have not considered or assessed the specific risk that any convicted sex offender displayed on a search will commit another offense or the nature of any future crimes that may be committed. Only information on registered sex offenders allowed to be legally disclosed appears on a search. Some registered sex offenders are not subject to public disclosure, so that they are not included on the search. State law does not allow offenses other than the crimes for which the convicted sex offender is required to register to be disclosed. Extreme care must be taken in the use of information in a search because mistaken identity may occur when relying solely upon name, age, and address to identify individuals. If you believe that any information in a search is in error, please contact a police or sheriff’s department, or contact the Department of Justice by e-mail at [email protected]. In some states, like California, it is illegal to use information obtained through public records to commit a crime against a registered sex offender or to engage in discrimination or harassment against a registered sex offender. Criminal misuse of this information subjects the person who misuses it to a sentence enhancement, in addition to the punishment for the crime committed. Civil misuse of this information may subject the person to civil damages and penalties pursuant to California Penal Code Section 290.4 (e) (3) (A).
Registration Obligations. In consideration of your use of the Endato Applications, you represent and agree that you are of legal age and have authority to form a binding contract and are not barred from receiving our Services under the laws of the United States or other applicable jurisdiction and will provide true, accurate, current and complete information about yourself as prompted by Endato Applications. Endato reserves the right to deny, in its sole discretion, any access to the Endato Applications or Services without notice for any or no reason.
Security of Username and Password. You are entirely responsible for maintaining the confidentiality of your password and account for any Endato Applications you interact with. You agree not to disclose any login or password for your use of the Services to anyone other than authorized employees. Furthermore, you are entirely responsible for any and all activities that occur under your account. You agree to notify Endato immediately of any unauthorized use or theft of your account(s) or any other breach of security (and to provide properly documented evidence as reasonably requested by Endato). We will not be liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. However, you will be liable for losses incurred by Endato or another party due to someone else using your account or password.
Audit. PeopleFinders Pro may audit your use of the PeopleFinders Pro Applications or Services and/or your compliance with the terms of this Agreement. You agree to reasonably cooperate with any such request by PeopleFinders Pro in conjunction with the review of your usage of the PeopleFinders Pro Applications or Services and/or your compliance with any terms of this Agreement.
CHARGES ON YOUR BILLING ACCOUNT
Service Fees. Subject to any previously agreed-upon pricing terms between you and Endato, you agree to pay Endato all charges at the prices then in effect for your use of the Services using the billing information you provide (“Billing Account”), and any applicable taxes, and you authorize Endato to charge your chosen payment provider (your “Payment Method”) for the Services. You agree to make payment using that selected Payment Method. The terms of your payment will be based on your Payment Method and may be determined by agreements between you and the financial institution, credit card issuer or other provider of your chosen Payment Method (the “Payment Method Provider”). If Endato does not receive payment from your Payment Method Provider, you agree to pay all amounts due on your Billing Account upon demand. In the event we are advised of insufficient funds in your account or credit to cover your payment by credit card, we may re-present such uncleared or rejected payment to your Payment Method Provider. Endato reserves the right to correct any errors or mistakes that it makes even if it has already requested or received payment and to update your information from available third party sources. All monthly charges are NON-REFUNDABLE regardless of the amount of time left on your term. All prices are in US Dollars and do not include Internet service provider, telephone, and other connection charges.
Current Information Required. You must promptly notify Endato if your payment method is canceled (e.g., for loss or theft) or if you become aware of a potential breach of security, such as the unauthorized disclosure or use of your user name or password. Changes to such information can be made by logging into your account or any other section on the Site that allows you to change your account settings now or in the future. You can also e-mail us. If you fail to provide the company any of the foregoing information, you agree that Endato may continue charging you for any use of the Services under your Billing Account unless you and us have agreed to terminate our relationship. Any attorney fees, court costs, or other costs incurred in collection of delinquent undisputed amounts will be the responsibility of and paid for by you.
Search Limits. We do not allow scraping of our data or excessive collection of our data for any purpose.
SERVICES PROVIDED BY Endato
Modification to Services. Endato has the right to modify its Services at any time in its sole discretion. Your only right with respect to any dissatisfaction with any modifications made pursuant to this provision, or any policies or practices of Endato in providing its Services is to stop using those Services.
Accuracy of Data. No representations, neither express nor implied, are made as to the validity of any data provided by Endato. While Endato has made every effort to supply you with current and valid data, there can be no guarantee as to any specific piece of data obtained by users of our Services. Our Services search and gather compilations of criminal and other records that are on public record. We do not make any representations that information available on public records is accurate. In addition, searches can be conducted with a number of variables and therefore we do not control the accuracy of any search conducted. In providing the Services, Endato is not rendering legal, private investigation or other professional services. If legal, investigative or other expert assistance is required, the services of a competent professional should be sought. You will use the Services in a manner consistent with any and all applicable laws and regulations. You will not use the information obtained from Endato Applications or Services to harass, stalk, or otherwise contact in any unlawful manner any person whose information you obtained from this Endato Applications or Service. You further agree not to provide any information obtained from this Endato Applications or Services to any third party.
Third Party Sites. You may be able to access other websites or resources through links on the Endato Applications. Because Endato has no control over such sites and resources, you acknowledge and agree Endato is not responsible for the availability of such external sites or resources, does not endorse, and is not responsible or liable for any content, advertising, products or other materials available from such sites or resources and is not responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such websites or resources.
Ownership of Content and Marks. The Services, and all material published on or accessible through the Endato Applications, including, but not limited to text, photographs, video, graphics, music, images, animations, audio, “applets” incorporated into the software data, sounds, messages, comments, ratings, and other materials on the Endato Applications (together “Content”) is owned by Endato or its licensors, and is protected by laws governing copyrights, patents, trademarks, trade secrets and/or other proprietary rights. Endato owns a copyright in the selection, coordination, arrangement and enhancement of such Content and a copyright in the Endato Applications. All trademarks, service marks, trade names, and trade dress appearing on the Endato Applications (“Marks”), are proprietary to Endato. You agree not to copy, reproduce, publish, transmit, distribute, perform, sell, create derivative works of, or in any way exploit, any of the Marks, the Content, Endato Applications or the Services, in whole or in part, without Endato prior written consent. You acknowledge that you do not acquire any ownership rights in any Content downloaded from Endato Applications. You may not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of Endato without express written consent. You may not use any meta tags or any other “hidden text” utilizing Endato’s name or Marks without the express written consent of Endato. All right, title and interest in and to the Endato Applications and Services is and will remain the exclusive property of Endato and its licensors. In addition, any feedback, comments, ideas, concepts or suggestions (“Feedback”) you may provide regarding the Endato Applications or Services is entirely voluntary, and we will be free to use such Feedback for any purpose whatsoever, in any media, throughout the world and in perpetuity, and without any compensation, attribution or other obligation to you.
No Other License Granted. Except for allowing you to use the Endato Applications and Services for your personal use as set forth in these Terms, when you use the Endato Applications or Services, you are not receiving a license or any other rights from Endato, including intellectual property or other proprietary rights of Endato. You understand that you have no rights to the Endato Applications or Services or any other Endato property except as indicated in these Terms.
Disclaimer of Warranties. YOU UNDERSTAND THAT YOUR USE OF THE Endato APPLICATIONS AND SERVICES (INCLUDING ANY DOWNLOADS OR ANY LOSS OF DATA OR OTHER DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE YOU EXPERIENCE FROM USING Endato APPLICATIONS AND SERVICES) IS AT YOUR SOLE RISK. YOU UNDERSTAND THAT THE Endato APPLICATIONS AND SERVICES ARE PROVIDED ON AN “AS IS” “WHERE-IS” AND “WHERE AVAILABLE” BASIS, AND ARE SUBJECT TO CHANGE AT ANY TIME WITHOUT NOTICE TO YOU. YOU ACKNOWLEDGE THAT Endato MAKES NO WARRANTY THAT THE Endato APPLICATIONS OR SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. YOU UNDERSTAND THAT Endato DOES NOT WARRANT THAT THE RESULTS OBTAINED FROM YOUR USE OF THE Endato APPLICATIONS OR SERVICES WILL MEET YOUR EXPECTATIONS. NO WARRANTY OF ANY KIND, WHETHER ORAL OR WRITTEN, CAN MODIFY THE TERMS OF THE DISCLAIMER SET FORTH IN THESE TERMS. IF YOU ARE DISSATISFIED WITH ANY OF THE CONTENT CONTAINED IN THE Endato APPLICATIONS OR SERVICES, OR WITH THE SERVICES, OR WITH ANY OF THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE ACCESSING AND USING THE Endato APPLICATIONS AND SERVICES AND CANCEL THE SERVICES SUBJECT TO THE CANCELLATION POLICIES SET FORTH HEREIN. TO THE FULLEST EXTENT PERMITTED BY LAW, Endato DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS OF ANY KIND (EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS) AS TO THE Endato APPLICATIONS AND SERVICES.
ALL CONTENT, PRODUCTS AND THIRD PARTY SERVICES ON THE Endato APPLICATIONS, OR OBTAINED FROM A WEBSITE TO WHICH THE Endato APPLICATIONS ARE LINKED ARE PROVIDED TO YOU “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, SECURITY OR ACCURACY. Endato DOES NOT ENDORSE AND IS NOT RESPONSIBLE FOR THE MERCHANTABLITY OF ANY PRODUCT OR SERVICE ACCESSED FROM THE Endato APPLICATIONS OR A LINKED SITE. OTHER THAN AS REQUIRED BY LAW, UNDER NO CIRCUMSTANCE WILL Endato BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY YOUR RELIANCE ON INFORMATION OBTAINED THROUGH THE Endato APPLICATIONS OR A LINKED SITE, OR YOUR RELIANCE ON ANY PRODUCT OR SERVICE OBTAINED FROM THE Endato APPLICATIONS OR A LINKED SITE.
WHEN USING THE SITE, INFORMATION WILL BE TRANSMITTED OVER A MEDIUM WHICH IS BEYOND THE CONTROL AND JURISDICTION OF Endato, ITS PARTNERS, ADVERTISERS, AND SPONSORS OR ANY OTHER THIRD PARTY MENTIONED ON THE SITE. ACCORDINGLY, Endato ASSUMES NO LIABILITY FOR OR RELATING TO THE DELAY, FAILURE, INTERRUPTION, OR CORRUPTION OF ANY DATA OR OTHER INFORMATION TRANSMITTED IN CONNECTION WITH USE OF THE SITE.
Liability Limitation. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL Endato OR ITS AFFILIATES BE LIABLE TO YOU (OR ANY THIRD PARTY MAKING CLAIMS THROUGH YOU) FOR ANY DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES, OR DAMAGES FOR LOSS OF USE, PROFITS, DATA, OR OTHER INTANGIBLES, OR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, UNAUTHORIZED ACCESS TO AND TAMPERING WITH YOUR PERSONAL INFORMATION OR TRANSMISSIONS, ARISING OUT OF OR RELATED TO THE USE, INABILITY TO USE, UNAUTHORIZED USE, PERFORMANCE, OR NON-PERFORMANCE OF THE Endato APPLICATIONS OR THE SERVICES, EVEN IF Endato HAS BEEN ADVISED PREVIOUSLY OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER SUCH DAMAGES ARISE IN CONTRACT, NEGLIGENCE, TORT, UNDER STATUTE, IN EQUITY, AT LAW, OR OTHERWISE. UNLESS LIMITED OR MODIFIED BY APPLICABLE LAW, THE FOREGOING DISCLAIMERS, WAIVERS AND LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE. MOREOVER, UNDER NO CIRCUMSTANCES WILL WE, OUR LICENSORS OR LICENSEES, BE HELD LIABLE FOR ANY DELAY OR FAILURE IN PERFORMANCE RESULTING DIRECTLY OR INDIRECTLY FROM AN ACT OF FORCE MAJEURE OR CAUSES BEYOND OUR OR THEIR REASONABLE CONTROL. WE MAY CHANGE OR DELETE GOODS AND SERVICES AVAILABLE, CONTENT OR FEATURES OF OUR SERVICES IN ANY WAY, AT ANY TIME AND FOR ANY REASON OR NO REASON. IF ANY PART OF THESE WARRANTY DISCLAIMERS OR LIMITATIONS OF LIABILITY IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, THEN Endato’S AGGREGATE LIABILITY FOR ALL CLAIMS UNDER SUCH CIRCUMSTANCES FOR LIABILITIES SHALL NOT EXCEED THE GREATER OF THE AGGREGATE AMOUNT YOU PAID FOR YOUR SERVICES IN THE SIX (6) MONTHS PRECEDING THE INCIDENT WHICH IS THE SUBJECT OF THE CLAIM OR $50. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION AND ELSEWHERE IN THESE TERMS APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
No Liability for Accumulated Content. When using the Endato Applications, you may accumulate content in your account that resides as data on our servers. This data, and any other data residing on our servers, may be deleted, in whole or in part, altered, moved or transferred at any time for any reason in Endato’s sole discretion with or without notice and with no liability of any kind. Endato DOES NOT PROVIDE OR GUARANTEE, AND EXPRESSLY DISCLAIMS ANY VALUE, CASH OR OTHERWISE, ATTRIBUTED TO ANY DATA RESIDING ON Endato’S SERVERS.
Indemnity/Release. You understand that you are responsible for your behavior while on the Endato Applications or using the Services and agree to indemnify and hold Endato, and its subsidiaries, affiliates, business partners, distributors, agents, representatives and other authorized users, and their respective officers, directors, employees, and agents (collectively, the “Indemnified Parties”), harmless from and against any loss, damage, liability, cost, or expense of any kind (including attorneys’ fees) that the Indemnified Parties may incur in connection with any claim arising out of or related to your use of the Endato Applications or Services or your violation of either these Terms, applicable law or the rights of any third party.
If you are a California resident and in connection with the foregoing release, you hereby waive California Civil Code Section 1542 (and any similar provision in any other jurisdiction) which states: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his favor at the time of executing the release and that, if known by him would have materially affected his settlement with the debtor or released party.”
Term and Termination. This Agreement will remain in full force and effect while you use the Services. Endato can suspend or terminate your access to the Endato Applications or Services, in whole or in part, at any time, immediately and without notice. All terms that by their nature may survive termination of this Agreement shall be deemed to survive such termination.
Age Requirements. The Endato Applications are intended for general adult audiences and you represent that you are over the age of 18 years of age and that you possess the legal right and ability to enter into this agreement and to use the Endato Applications and Services in accordance with these Terms. If we have any reason to believe you are not 18 or older we may terminate your access to the Endato Application and Services.
Electronic Form/Communications. By accessing the Endato Applications or Services, you consent to having this agreement provided to you in electronic form and receiving communications from us electronically. We may communicate with you by postal mail, through contracts, e-mail or by posting notices on the Site. You agree that all agreements, notices, disclosures, and other communications we provide to you electronically satisfy any legal requirements that such communications be in writing.
Access to Services. Endato reserves the right to perform regular or planned or unplanned maintenance to our Services due to technology improvements or bugs, and you may or may not be notified of these changes before they occur. Endato also reserves the right to change, modify, discontinue, suspend or abandon the Endato Applications or any of the Services at any time for any reason with or without notice to you and that we will not be liable to you or any third party as a result of such termination, modification, discontinuance or abandonment.
Availability and Use Outside of the United States. The Endato Applications and Services are controlled from facilities in the United States. Endato makes no representations that the Endato Applications or Services are appropriate or available for use in other locations. Those who access or use the Endato Applications and/or Services from other jurisdictions do so at their own volition and are responsible for compliance with local law.
No Third Party Beneficiaries. You agree that, except as otherwise expressly provided in this Agreement, there shall be no third party beneficiaries to this Agreement.
RESOLUTION OF DISPUTES
Governing Law. These Terms shall be governed by and construed in accordance with the laws of the State of California without application of conflict of laws rules.
Resolution of any Dispute. In the event a dispute arises between you and Endato these Terms describe how both of us will proceed.
Limitation of Legal Remedies. INSTEAD OF SUING IN COURT, YOU AND COMPANY EACH AGREE TO ARBITRATE DISPUTES ON A BILATERAL (INDIVIDUAL) BASIS. ARBITRATION ON AN INDIVIDUAL BASIS MEANS THAT YOU WILL NOT HAVE, AND YOU WAIVE, THE RIGHT FOR A JUDGE OR JURY TO DECIDE YOUR CLAIMS, AND THAT YOU MAY NOT PROCEED IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE CAPACITY. You and Endato agree that any dispute, controversy or claim arising out of or relating to any aspect of our relationship; the Content accessible from Endato Applications; claims that may arise after the termination of your membership; and claims related to marketing efforts, including complaints concerning unsolicited text messages, emails, and telemarketing calls (“Claim(s)”) which cannot be settled through the Customer Care Department refunding your payments in full, shall be resolved by one arbitrator through binding arbitration. This agreement to arbitrate is intended to be broadly interpreted. It includes Claims based in contract, tort, statute, fraud, misrepresentation or any other legal theory. The arbitrator’s decision and award is final and binding, with some exceptions under the Federal Arbitration Act, 9 U.S.C. 1, et seq., and judgment on the award may be entered in any court with jurisdiction.
Class Action Waiver. We each agree that each of us are waiving the right to a trial by jury and may bring claims against the other only in an individual capacity and not in a class action or representative proceeding. All arbitrations under these Terms shall be conducted on an individual (and not a class-wide) basis, and an arbitrator shall have no authority to award class-wide relief. You acknowledge and agree that these Terms specifically prohibit you from commencing any legal proceedings as a representative of others or joining in any arbitration proceedings brought by any other person (“class action waiver”).
Arbitration Procedures. A party who intends to seek arbitration must first send to the other a written Notice of Dispute describing the nature and basis of the Claim and setting forth the specific relief sought. All notices to Endato shall be sent to the following address: Endato, 1821 Q Street, Sacramento, CA 95811. All notices to you will be sent to the email provided in your Account or by you. Upon receipt of such Notice of Dispute, the other party shall have a sixty (60) day period in which it may satisfy the Claim against it by fully curing the Claim and/or providing all the relief requested in the Notice of Dispute, and/or entering into a settlement to resolve the Claim to the mutual satisfaction of the parties. After the expiration of such sixty-day cure period, you or Endato may commence an arbitration proceeding. The arbitration of any Claim under this Agreement shall be referred to the JAMS (“JAMS”) under its rules and procedures, including the JAMS’s Comprehensive Arbitration Rules. These rules and procedures are available by calling the JAMS or by visiting its web site at www.jamsadr.com. For any non-frivolous claim that does not exceed $10,000 Endato will: (1) pay all costs of the arbitration; and (2) if you prefer will conduct the arbitration by telephone. Attorneys’ fees are recoverable by the prevailing party.
Choice of Law. This arbitration agreement concerns a transaction in interstate commerce, and therefore shall be governed by the United States Federal Arbitration Act, 9 U.S.C. § 1 et seq. The FAA’s provisions, not state law, govern all questions of whether a dispute is subject to arbitration.
Venue. The parties hereby irrevocably consent to the exclusive jurisdiction of the State of California and agree that any litigation arising out of this agreement, whether in arbitration or judicial proceedings, shall be conducted in Sacramento County, California.
Exception. Any claim or action for indemnification, contribution, interpleader or injunctive relief arising out of a Claim shall not be subject to arbitration.
Survival. This arbitration provision shall survive termination of this agreement and the closing of your account or membership.
Severability. If any provision of these Terms is declared or found to be unlawful, unenforceable or void, such provision will be ineffective only to the extent that it is found unlawful, unenforceable or void, and the remainder of the provision and all other provisions shall remain fully enforceable except that if for some reason this prohibition on class action waiver cannot be enforced, then this agreement to arbitrate will not apply.
These Terms and policies incorporated herein (“Policies”), are the entire agreement between you and Endato. They supersede any and all prior or contemporaneous agreements between you and Endato relating to your use of the Endato Applications or the Services. Endato may assign these Terms in whole or in part, at any time. If any part of these Terms, other than class action waiver as set forth above, is determined to be invalid or unenforceable, it will not impact any other provision of these Terms, all of which will remain in full force and effect. Headings in these Terms are for convenience of reference only and shall not affect the interpretation or construction of these Terms. The failure of Endato to partially or fully exercise any rights or the waiver of Endato of any breach of these Terms by you, shall not prevent a subsequent exercise of such right by Endato or be deemed a waiver by Endato of any subsequent breach by you of the same or any other term of these Terms. The rights and remedies of Endato under these Terms, its Policies and any other applicable agreement between you and Endato shall be cumulative, and the exercise of any such right or remedy shall not limit Endato right to exercise any other right or remedy.
You may contact us with any questions when logged into your account.
“Downtime” means the time in which the Services are not capable of being accessed by you.
“Monthly Uptime Percentage” means the total number of minutes in a calendar month minus the number of minutes of Downtime suffered in a calendar month, divided by the total number of minutes in a calendar month.
“Exclusion from Downtime” means the following events which are not counted as Downtime for the purpose of calculating Monthly Uptime Percentage:
(i) the unavailability of Services caused by maintenance, repair or modification of the platform used to provide the Services; or
(ii) the unavailability of Services outside of the reasonable control of Endato or its subcontractor(s), including any force majeure event, the failure or unavailability of your systems, the internet, or the failure of any other technology or equipment used to connect to or access the Services; or
(iii) a breach of the Terms or API Terms.
“Service Credits” means the credits as set forth below that are issued as a financial reimbursement if Endato does not meet the SLA for a particular calendar month. Upon submission of a claim by you and approval of such claim by Endato, Endato will provide the applicable remedy set forth below:
|Monthly Uptime Percentage||Service Credit to you|
|Less than 99.9% but >= 99.0%||5% of the monthly fee|
|Less than 99.0% but >= 97.0%||15% of the monthly fee|
|Less than 97.0%||25% of the monthly fee|