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THESE TERMS OF SERVICE GOVERNS USE OF ROE SERVICES BY SUBSCRIBERS. CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN.

YOU BECOME A SUBSCRIBER OF THE SERVICES BY (1) CLICKING A BOX INDICATING ACCEPTANCE, OR (2) EXECUTING AN PACKAGE FORM THAT REFERENCES THESE TERMS OF SERVICE. BY BECOMING A SUBSCRIBER, YOU AGREE TO THE TERMS OF THESE TERMS OF SERVICE. IF THE INDIVIDUAL ACCEPTING THESE TERMS OF SERVICE IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “SUBSCRIBER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THESE TERMS OF SERVICE DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THESE TERMS OF SERVICE AND MAY NOT USE THE SERVICES.

THESE TERMS REQUIRE THE USE OF ARBITRATION (SECTION 8.2) ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.

The Services may not be accessed for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.

ROE’s direct competitors are prohibited from accessing the Services, except with ROE’s prior written consent.

These Terms of Service were last updated on March 10, 2025. They are effective between Subscriber and ROE as of the date of Subscriber’s accepting these Terms of Service (the “Effective Date”).

Definitions. As used herein:
1. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
2. "Authorized Users" means Subscriber's employees and independent contractors working for Subscriber in the ordinary course of Subscriber's business who: (i) agree to be bound by the terms of these Terms of Service; and (ii) are specifically authorized by Subscriber to access the Service and identified on an applicable Package form.
3. “Customer” means individual customers of Subscriber for which Subscriber utilizes the Services, including such customers that obtain access to a Dash Board.
4. “Dash Board” means the portion of the Service whereby Customers have access to customized web pages providing information on Subscriber’s services and updates on the ordering, manufacturing and delivery of goods managed by the Service.
5. "Display Devices" shall mean the display device of an Authorized User used to access, display, and use the Service.
6. “ROE” means Rock of Eye Software Pty Ltd.
7. "Service" means the Rock of Eye service offered via the World Wide Web supporting the design and manufacturing of apparel by tailors, consisting of products and services that are ordered by Subscriber under an Package form or online purchasing portal, or provided to Subscriber free of charge (as applicable) or under a free trial, and made available online by ROE, including associated ROE offline or mobile components.
8. "Service Start Date" shall mean the date from which Subscriber first receives the applicable Service or as identified on an applicable Package form, whichever is earlier.
9. "Fees" shall mean the fees payable pursuant to Section 3 hereof and an applicable Package form.
10. "Office" shall mean the address(es) of Subscriber's office(s) in which an Authorized User’s Display Device is located, as identified on an applicable Package form.
11. "Package form" means an ordering document or online order specifying the Services to be provided hereunder that is entered into between Customer and ROE or any of their Affiliates, including any addenda and supplements thereto. By entering into an Package form hereunder, an Affiliate agrees to be bound by the terms of these Terms of Service as if it were an original party hereto.
12. “Policies” means the Privacy Policies set forth at [LINK TO Privacy POLICIES].
13. “Revenue” means the total monetary amount received by or credited to the subscriber and authorized user for products and services provided, before the deduction of any expenses, taxes, refunds, or adjustments. Revenue may include, but is not limited to: Custom Tailoring Services Income generated from bespoke, made-to-measure, and custom-designed garments (e.g., suits, shirts, dresses, coats).
14. “Subscriber” means in the case of an individual accepting these Terms of Service on his or her own behalf, such individual, or in the case of an individual accepting these Terms of Service on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting these Terms of Service, and Affiliates of that company or entity (for so long as they remain Affiliates) which have entered into Package forms.
15. "Subscriber Data" means (i) any electronic data, customer data, information, or material that Subscriber provides, uploads, or submits to ROE in connection with these Terms of Service, and (ii) any electronic data, customer data, information, or material generated from or in connection with Subscriber’s use of the Service (including any Authorized User).
16. "Subscriber Marks" shall mean the trademarks, service marks, copyrights, intellectual property, symbols, logos, emblems, decals, designs, colors, likenesses, or other visual representations of Subscriber, as such trademarks and other marks may be modified by Subscriber from time to time.
17. "Term" shall mean the period beginning on the Effective Date and continuing until the Subscriber terminates the agreement in writing, as applicable.
License to Receive the Service and Provision of Services.
1. Grant. ROE hereby grants the Subscriber identified on the Package form a limited, non-exclusive and non-transferable license, without right of sublicense, during the Term to access, display, and use on Subscriber's Display Devices within the United States, the Service, and to permit Authorized Users to access and use the Service, subject to the terms and conditions of these Terms of Service, applicable Package form and the Policies. All rights in the Service not expressly granted hereunder are reserved to ROE. ROE further grants the right for Customers to access the applicable Customer’s Dash Board.
2. Scope. The license granted to Subscriber hereunder is solely for Subscriber’s internal business purposes and is limited to the access, display, and use of the Service by only an Authorized User (and by Customers for access to each Customer’s Dash Board). Each Authorized User may access, display, and use the Service on only one Display Device at a time. Subscriber shall have no right pursuant to these Terms of Service to access, use, display, or distribute the Service, in whole or in part, beyond the number of Authorized Users identified on the applicable Package form. Subscriber may add additional Authorized Users by either executing a new Package form or amending an existing Package form. Subscriber is responsible for all activities that occur under Subscriber’s and any Authorized User’s accounts. Subscriber will: (a) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all use of the Service by Subscriber and any Authorized User; (b) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, and notify ROE promptly after becoming aware of any such unauthorized access or use; and (c) comply with all applicable local, state, federal, and foreign laws in using the Service, including all applicable privacy laws. Nothing in these Terms of Service shall obligate ROE to continue providing access to any Service beyond the date when ROE ceases providing such Service to subscribers generally.
3. Restrictions on Use. Subscriber shall not edit, alter, abridge, or otherwise change in any manner the content of the Service, including, without limitation, all copyright and proprietary rights notices. Subscriber may not, and may not permit others to (including any Authorized User or Customer):
  1. Reverse engineer, decompile, decode, decrypt, disassemble, or in any way derive source code from, the software or Service;
  2. Modify, translate, adapt, alter, or create derivative works from the Service;
  3. Copy, distribute, publicly display, transmit, sell, rent, lease, or otherwise exploit the Service;
  4. Distribute, sublicense, rent, lease, loan or grant any third-party access to or use of the Service to any third party;
  5. Harvest, collect, gather, or assemble information or data regarding other subscribers;
  6. Transmit through or post on the Service unlawful, immoral, libelous, tortuous, infringing, defamatory, threatening, vulgar, or obscene material or material harmful to minors;
  7. Transmit material containing software viruses or other harmful or deleterious computer codes, files, scripts, agents, or programs;
  8. Interfere with or disrupt the integrity or performance of the Service or the data contained therein;
  9. Attempt to gain unauthorized access to the Service, computer systems, or networks related to the Service; or
  10. Harass or interfere with another subscriber or end-user’s use and enjoyment of the Service.
4. Provision of Services. ROE will (a) make the Services available to Subscriber pursuant to this these Terms of Service, and the applicable Package forms and Policies, (b) provide applicable ROE standard support for the Services to Subscriber, (c) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which ROE shall give advance electronic notice), and (ii) any unavailability caused by circumstances beyond ROE’s reasonable control, and (d) provide the Services in accordance with laws and government regulations applicable to ROE’s provision of its Services to its customers generally, and subject to Subscriber’s and Customer’s use of the Services in accordance with Term of Service, the Policies and the applicable Package form.
5. Protection of Subscriber Data and Privacy. ROE will maintain reasonable administrative, physical, and technical safeguards for the protection of the security, confidentiality and integrity of Subscriber Data, as set forth in the Policies.
6. Subscriber Responsibilities. Subscriber will (a) ensure that Subscriber and Authorized Users use the Services in compliance with these Terms of Service, any applicable Package form and the Policies, (b) be responsible for the accuracy, quality and legality of Subscriber Data, Subscriber’s use of Subscriber Data with the Services, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services, and notify ROE promptly of any such unauthorized use, (d) use of the Services only in accordance with these Terms of Service, applicable Package form, Policies and applicable laws and government regulations, including those with respect to privacy and data protection.
7. Privacy Policy.
  1. By agreeing to these Terms of Service, you agree to be bound by ROE’s Policies, which may be reviewed at the following link [LINK TO Privacy POLICIES]. Subscriber agrees to be bound by the Policies, such Policies being incorporated into these Terms of Service.
  2. Subscriber agrees that it shall maintain a Privacy Policy that complies with all privacy and data protection laws applicable to the Subscriber. Subscriber shall further disclose to Customers that Subscriber utilizes third party service providers and that it shall disclose information, including personally identifiable information, to such third party service providers. ROE agrees that it shall reasonably cooperate with Subscriber in the event that a Customer exercises the Customer’s rights under Federal or State privacy and data protection regulations, including the right to correct, delete, copy, opt-out, revoke consent or other rights in fulfilling the Customer’s rights under these laws. Subscriber grants to ROE a non-exclusive, worldwide, royalty-free, perpetual, irrevocable license to host, store, use, reproduce, modify, transmit, modify for the purpose of formatting for display, create derivative works as authorized in this Agreement, distribute, and otherwise exploit all such Subscriber Data: (a) to provide the Services; (b) internally in any way subject to ROE’s obligation of non-disclosure in Section 12; and (c) internally or externally in any way in aggregate or anonymous format or otherwise in conformity with ROE’s Policies.
8. Cyber Security. Each Party represents and warrants that it shall:
  1. Proactively monitor for potential vulnerabilities or risks to the cybersecurity of the Service by implementing, maintaining and updating a cybersecurity risk assessment process that will involve regular quarterly vulnerability scanning and annual penetration testing at the minimum.
  2. Conduct a technically reasonable risk assessment and analysis as part of whenever cybersecurity vulnerabilities or risks are identified in order to assess the impact to the cybersecurity status.
  3. If a Party discovers a vulnerability that applies to the other Party's products or services or the Service, such Party will make every effort to remediate the vulnerability within a reasonable amount of time.
  4. Notify the other Party within twenty-four (24) hours if a Party knows or reasonably suspects that a cybersecurity vulnerability related to the Service has been exploited by a third party.
  5. Use its reasonable best efforts to ensure that its software and services will not, at any time, contain any destructive or unauthorized code, such as a virus, Trojan horse, worm or other software routine or hardware component that permits unauthorized access or that disables, erases or otherwise harms any part of the other Party's systems, including hardware, data and software.
Fees and Payment.
1. Service Fees and Other Fees. In exchange for the Services to be provided and the licenses granted under these Terms of Service, commencing on the Service Start Date, Subscriber shall pay ROE the Fees identified in the applicable Package form, plus any other applicable fees, costs, and expenses contained in the Package form and these Terms of Service. Unless otherwise set forth in the applicable Package form, Fees are calculated as a percentage of Subscriber and Authorized Users Revenue and are charged as transactions occur, rather than being prepaid. Payments are automatically deducted based on agreed terms in your Package form.

Late Payments. If Subscriber fails to pay the Fees by the due date specified on the invoice, ROE shall be entitled to interest from the day on which the Fees became due. Both parties agree that the rate of interest on overdue invoices shall be 1.5% per month, or the maximum amount allowable by applicable law, whichever is greater.
Taxes. Subscriber will be responsible for, and will promptly pay or reimburse ROE for, the payment of all sales, use, excise, value-added, or similar taxes, assessments, or duties (or other similar charges) imposed by any governmental agency (including any interest and penalty imposed thereon as a result of any act or omission of ROE that is in accordance with the direction or request of Subscriber) that are based on or with respect to any Services or goods provided by ROE to Subscriber, or the amounts payable to ROE therefore.

Access.
1. Service. Subscriber shall acquire, install, operate, and maintain at Subscriber’s expense all communications lines, equipment, software, services, and related technology necessary to receive, access, and use the Service. Except as expressly stated herein or on an applicable Package form, Subscriber is prohibited from and will have no right to: (i) allow any third party (which may include agents, contractors, affiliates, or other third-party representatives acting on behalf of Company) to access and/or use the Service; (ii) allow access to or use of the Service outside of the United States of America (including any Authorized User).
2. Delivery and Acceptance. ROE will make the Service available to Subscriber as indicated on the Package form. The Service will be deemed accepted upon the Service Start Date. Any updates, bug fixes, or upgrades ("Corrections") to the Service will be deemed accepted by Subscriber on the day such Corrections are first made available to Subscriber or accessed by Subscriber, whichever is earlier.
Reports and Records. Subscriber shall maintain accurate records containing the following information, copies of which ROE shall be entitled to receive upon seven (7) days prior written notice to Subscriber: (i) the address of each Office where at least one Display Device is located; (ii) the total number of Display Devices and Authorized Users at each Office; and (iii) the Service(s) received by each Authorized User on each Display Device. No Display Device may be accessed on a regular basis by more than one Authorized User, unless additional fees for such access have been agreed to in writing by the parties hereto in the applicable Package form. ROE may, upon prior written notice to Subscriber, reasonably request Subscriber to maintain records containing additional information related to the Service and Subscriber’s use thereof. In addition, ROE may implement and use, but is not required to, various software and tools to monitor Subscriber’s use of the Service, as ROE deems reasonably necessary, in order to determine Subscriber’s compliance with the terms of these Terms of Service.
Audits and Inspections. For the purpose of verifying compliance with these Terms of Service, ROE (and ROE's authorized representatives) shall have the right, during normal business hours upon reasonable advance notice and without material disruption to Subscriber's business, to audit and inspect from time to time Subscriber's offices, books, and records relevant to the Service and to observe the use made of the Service and the manner in which each Display Device and Authorized User accesses the Service. If such audit or inspection pursuant to this Section indicate that Subscriber is not in compliance with these Terms of Service (including any Package form), such as more Authorized Users accessing the Service than permitted and/or purchased by Subscriber under an applicable Package form, Subscriber shall pay ROE the shortfall in Fees, retrospectively to the date the noncompliance first occurred (such as the date the number of Authorized Users first exceeded the permitted number as stated in the applicable Package form). If such underpayment exceeds five percent (5%) of the Fees due during the relevant period, Subscriber shall reimburse ROE for ROE's reasonable costs associated with such audit or inspection.
Copyright Protection; Use Restrictions; Subscriber License Grant.
1. Subscriber agrees that the Service and all parts thereof, and its specifications, including without limitation the editorial coding and metadata contained therein, are the property of ROE or ROE's licensors. Other than as expressly set forth in these Terms of Service, no license or other rights in the pre-existing intellectual property rights to the Service are granted to Subscriber, and all such rights are hereby expressly reserved.
2. Subscriber agrees that only Authorized Users shall be permitted access to the Service as set forth in an Package form executed by the Parties. Except as set forth herein or in an Package form, no clients or other persons or entities who are not legal employees of Subscriber or independent contractors consulting for Subscriber in the ordinary course of Subscriber's business may be Authorized Users.
3. Subscriber hereby grants to ROE a non-exclusive, royalty-free, and non-transferable license to use, copy, store, modify, and display the Subscriber Data as necessary to provide the Service in accordance with these Terms of Service. Subscriber Data submitted by Subscriber to the Service, whether posted by Subscriber or by an Authorized User, remains the sole property of Subscriber and Subscriber reserves all right, title, and interest in the Subscriber Data. Notwithstanding any other provision in these Terms of Service, ROE may collect and provide certain Customer registration and statistical information in aggregate and anonymized form to third parties, provided that such information does not identify any Customer and contains no personally identifying information. ROE may access Subscriber’s and its Authorized User accounts, including, without limitation, Subscriber Data, to the extent necessary to respond to service or technical problems.
4. Subscriber hereby grants ROE a non-exclusive, non-transferable, and royalty-free license to use Subscriber Marks for the limited purposes set forth in this these Terms of Service, including as necessary for ROE’s performance under these Terms of Service, to deliver the Service in accordance with these Terms of Service, and in marketing materials related to the Service.
5. ROE will have the right to use, act upon, and freely exploit any suggestion, idea, enhancement request, feedback, recommendation, or other information provided by Subscriber, an Authorized User, or any other third party acting on Subscriber’s behalf, without any remuneration, fee, royalty, or expense of any kind, and ROE will hereby own all rights, title, and interest in any such suggestion, idea, enhancement request, feedback, recommendation, or other information provided by Subscriber, an Authorized User, or any other third party acting on Subscriber’s behalf, with all such input being considered work-made-for-hire for the benefit of ROE.
Warranties; Disclaimer. Each Party warrants and represents that it has the authority to execute, deliver, and perform its obligations under these Terms and Conditions, having obtained all required consents, and is duly organized or formed, and validly existing and in good standing under the laws of the state of its incorporation or formation. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, SUBSCRIBER ACKNOWLEDGES AND AGREES THAT THE SERVICE(S), THE CONTENTS THEREIN, AND ANY ACCOMPANYING DOCUMENTATION ARE PROVIDED ON AN "AS IS", "AS AVAILABLE" BASIS, AND ROE DOES NOT MAKE ANY AND HEREBY SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS, ENDORSEMENTS, GUARANTEES, OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
Indemnification.
1. Subscriber Infringement Indemnity. Subscriber, at its expense, will defend, indemnify, and hold ROE harmless from and against any and all third-party claims for damages (whether ordinary, direct, indirect, incidental, special, consequential, or exemplary), judgments, liabilities, fines, penalties, losses, claims, costs, and expenses including, without limitation, reasonable attorneys' fees, finally awarded by a court of competent jurisdiction, after all rights of appeal are exhausted, against ROE which relate to a claim, action, lawsuit, or proceeding made or brought against ROE by a third party alleging the infringement or violation of such third party's registered patent, trade secret, copyright, or trademark (each a "ROE Claim") by way of ROE's use of any Subscriber Data, Subscriber Marks, or other information or materials provided by Subscriber in connection with these Terms of Service.
2. ROE Infringement Indemnity. ROE, at its expense, will defend, indemnify, and hold Subscriber harmless from and against any and all third-party claims for damages (whether ordinary, direct, indirect, incidental, special, consequential, or exemplary), judgments, liabilities, fines, penalties, losses, claims, costs, and expenses including, without limitation, reasonable attorneys' fees, finally awarded by a court of competent jurisdiction, after all rights of appeal are exhausted, against Subscriber to the extent such directly relates to a claim, action, lawsuit, or proceeding made or brought against Subscriber by a third party alleging the infringement or violation of such third party's registered patent, trade secret, copyright, or trademark (each a "Subscriber Claim") by way of Subscriber's use of the Service that ROE provides to Subscriber under these Terms of Service.
3. For purposes herein, each Party, when providing indemnification, will be termed an "Indemnifying Party" and each Party, when receiving the benefits of indemnification, shall be termed an "Indemnified Party." The term "Indemnified Party" will include the other Party's respective shareholders, officers, directors, administrators, managers, employees, servants and agents, and successors and assigns. The Indemnifying Party's obligations under this Section will be subject to the Indemnified Party providing the Indemnifying Party prompt notice of the event giving rise to an indemnity obligation, providing reasonable cooperation and assistance in the defense or settlement of any claim (at the Indemnifying Party's sole cost and expense), and granting the Indemnifying Party control over the defense and settlement of the same. The Indemnifying Party will have the right to consent to any settlement or judgment that is binding upon the Indemnifying Party.
4. In the event a court of competent jurisdiction makes a determination that the Service infringes on or otherwise violates any third-party registered patent, trade secret, copyright, or trademark, or if ROE determines that the Service likely infringes or otherwise violates such third party's foregoing intellectual property rights, ROE, at its sole option and expense, will: (a) modify the allegedly infringing or violating portion of the Service so as to make it non-infringing and non-violating; (b) replace the allegedly infringing or violating Service, or any portion thereof, with a non-infringing and/or non-violating product having reasonably equivalent functionality; (c) obtain the right for Subscriber to continue using the allegedly infringing or violating portion of the Service; or (d) revoke the license to the allegedly infringing or violating Service and provide a pro rata refund to Subscriber for all fees prepaid for the Service and not yet earned by ROE.
5. ROE will have no obligation under these Terms of Service relating to any indemnification if a Subscriber Claim results from any of the following: (i) Subscriber’s continued use of the infringing or violating Service after ROE first makes an applicable Correction available to Subscriber; (ii) Subscriber’s modification of the Service (including a third party acting on its behalf); or (iii) Subscriber’s use of the Service in any manner other than as permitted under these Terms of Service.
Limitation of Liability. ROE AND ITS SUBSIDIARIES, AFFILIATES, SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AND LICENSORS ("ROE PARTIES") WILL NOT BE LIABLE (JOINTLY OR SEVERALLY) TO SUBSCRIBER, AUTHORIZED USERS, OR ANY THIRD PARTY, FOR INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST SAVINGS, AND LOST REVENUES (COLLECTIVELY, THE "EXCLUDED DAMAGES"), WHETHER OR NOT CHARACTERIZED IN NEGLIGENCE, TORT, CONTRACT, OR OTHER THEORY OF LIABILITY, EVEN IF ANY OF ROE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN ANY OF THE EXCLUDED DAMAGES, AND IRRESPECTIVE OF ANY FAILURE OF AN ESSENTIAL PURPOSE OF A LIMITED REMEDY. IN NO EVENT WILL THE LIABILITY OF ROE PARTIES ARISING OUT OF ANY CLAIM RELATED TO THESE TERMS OF SERVICE, EXCEPT FOR ROE’S INDEMNIFICATION FOR INTELLECTUAL PROPERTY INFRINGEMENT PURSUANT TO SECTION 9, EXCEED THE AGGREGATE AMOUNT PAID BY SUBSCRIBER HEREUNDER IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. FOR ANY ROE INDEMNIFICATION FOR INTELLECTUAL PROPERTY INFRINGEMENT PURSUANT TO SECTION 9, IN NO EVENT WILL THE LIABILITY OF ROE PARTIES ARISING OUT OF ANY SUCH CLAIM EXCEED THREE TIMES THE AGGREGATE AMOUNT PAID BY SUBSCRIBER HEREUNDER IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IF ANY APPLICABLE AUTHORITY HOLDS ANY PORTION OF THIS SECTION TO BE UNENFORCEABLE, THEN ROE PARTIES' LIABILITY WILL BE LIMITED TO THE FULLEST POSSIBLE EXTENT PERMITTED BY APPLICABLE LAW.
Term; Termination. these Terms of Service shall be effective for the Term, unless terminated earlier in accordance herewith. Modifications in any ongoing Fees in connection with the Service shall be communicated to Subscriber no later than thirty (30) days prior to their effective date, and such modified Fees shall be deemed to replace those previously stated in the Package form. these Terms of Service, including all Package forms, may be terminated as follows: (a) if either Party commits a material breach of these Terms of Service and fails to remedy such breach within thirty (30) days of receiving written notice thereof by the non-breaching Party ("Notice of Breach"), the Party giving such notice may then deliver a second written notice to the breaching Party terminating these Terms of Service, in which event these Terms of Service, and the licenses granted hereunder, will terminate on the date specified in such second notice; or (b) if a receiver is appointed over any assets of either Party or if either Party makes any arrangement with its creditors or becomes subject to an administration order or goes into liquidation or anything equivalent to the foregoing under any jurisdiction or ceases to carry on business, the other may terminate by giving written notice with immediate effect; or (c) The Subscriber may terminate this Agreement at any time by providing thirty (30) days’ prior written notice to ROE. Upon termination under this provision, the Subscriber shall be responsible for all outstanding fees incurred up to the termination date. No early termination fees or liquidated damages shall apply if termination is made in accordance with this clause. Notwithstanding anything to the contrary contained in these Terms of Service, if Subscriber receives any notice of late payment under these Terms of Service in any form, written or electronic, from ROE including any business division (e.g., ROE's Credit Department), such notice will be deemed to be a Notice of Breach.
Confidentiality. Subscriber and ROE understand and agree that in providing or receiving Services each Party may have access to private or Confidential Information of the other Party, which either is marked as "confidential" or the receiving party should reasonably know under the circumstances that such information is confidential and/or proprietary information of the other Party. Each Party shall hold such Confidential Information in confidence and not, without the consent of the other, disclose it to a third party or use it for any purpose other than in performance of the Services. The disclosure of the Confidential Information to the receiving Party does not confer upon the receiving Party any license, interest, or right of any kind in or to the Confidential Information, except as provided under these Terms of Service. At all times and notwithstanding any termination or expiration of the Term, the receiving Party agrees that it will hold in strict confidence and not disclose to any third party the Confidential Information of the disclosing Party, except as approved in writing by the disclosing Party. The receiving Party will only permit access to the Confidential Information of the disclosing Party to those of its employees or authorized representatives having a need to know and who have signed confidentiality agreements or are otherwise bound by confidentiality obligations substantially similar to those contained in these Terms of Service. The receiving Party will be responsible to the disclosing Party for any third party's use and disclosure of the Confidential Information that the receiving Party provides to such third party in accordance with these Terms of Service. The receiving Party will use at least the same degree of care it would use to protect its own Confidential Information of like importance, but in any case with no less than a reasonable degree of care, including maintaining information security standards for such Confidential Information as are commercially reasonable and customary for the type of Confidential Information. This obligation of confidentiality shall not apply to information that is: (i) generally available to the public through no act or omission of the receiving Party, (ii) becomes known to the receiving Party through a third party with no obligation of confidentiality, (iii) was in the receiving Party's possession before receipt from the disclosing Party, (iv) is independently developed by the receiving Party, or (v) is required to be disclosed by law, court, or by any government or regulatory authority. If any Confidential Information is required to be disclosed by statute, rule, regulation, or order of any court of competent jurisdiction, before any such disclosure the receiving Party will provide notice to the disclosing Party reasonably sufficient to allow the disclosing Party the opportunity to apply for a protective order or other restriction regarding such disclosure. All Confidential Information will remain the exclusive property of the disclosing Party. No public announcement, press release, or communication concerning shall be made without the prior consent of the other Party. Each Party will immediately notify the other Party in writing upon discovery of any unauthorized loss, access, or disclosure of the Confidential Information of the other Party. Upon termination or expiration of the Term, upon written request of the other Party, or when no longer needed by either Party for fulfillment of its obligations under these Terms of Service, each Party will either: (a) promptly return to the other Party all documents and other tangible materials representing the other Party's Confidential Information, and all copies thereof in its possession or control; or (b) destroy all tangible copies of the other Party’s Confidential Information in its possession or control by the following methods. Notwithstanding the foregoing, each Party’s legal counsel may retain one copy of the disclosing Party’s Confidential Information for its files solely to provide a record of such Confidential Information for archival purposes. If either Party should breach or threaten to breach any provision of this Section, the non-breaching Party, in addition to any other remedy it may have at law or in equity, will be entitled to seek a restraining order, injunction, or other similar remedy in order to specifically enforce the provisions of this Section. Each Party specifically acknowledges that money damages alone would be an inadequate remedy for the injuries and damages that would be suffered and incurred by the non-breaching Party as a result of a breach of any provision of this Section. In the event that either Party should seek an injunction hereunder, the other Party hereby waives any requirement for the submission of proof of the economic value of any Confidential Information or the posting of a bond or any other security. In the event of a dispute between the Parties, the non-prevailing Party will pay all costs and expenses, including, but not limited to, reasonable attorneys' fees, associated with resolving the dispute. For purposes of this Section, “Confidential Information” means any valuable, non-public business information that is designated or identified as confidential at the time of the disclosure or is by its nature clearly recognizable as confidential information to a reasonably prudent person with knowledge of the disclosing Party’s business and industry.
Miscellaneous.
1. Notice. All notices to a Party hereunder shall be in writing, and delivered to the contact email address set forth in the applicable Package form or to a different email address that a Party may give written notice of pursuant to this Section from time to time. Notice will be deemed delivered and received on the date it is actually received.
2. Assignment. Services provided to Subscriber are not transferable, assignable, delegable, or sublicenseable by Subscriber in whole or in part, without the prior written permission of ROE.
3. Survival. Any and all provisions, promises, and warranties contained herein, which by their nature or effect are required or intended to be observed, kept, or performed after termination or expiration of these Terms of Service, will survive the termination or expiration of the Term and remain binding upon and for the benefit of the Parties hereto.
4. Independent Contractor. ROE is acting in performance of these Terms of Service as an independent contractor.
5. Binding Effect and Third-Party Beneficiary. Except if specifically stated in these Terms of Service, neither Party, nor any of their respective employees or agents, will have the power or authority to bind or obligate the other Party. No third party is a beneficiary of these Terms of Service.
6. Waiver of Rights. Except where specifically stated to the contrary, all remedies available to either Party for breach of these Terms of Service under these Terms of Service, at law, or in equity, are cumulative and non-exclusive. A waiver or failure of either Party at any time to require performance by the other Party of any provision hereof will not affect the full right to require such performance at any time thereafter.
7. Injunctive Relief. If Subscriber breaches Section 2 of these Terms of Service, ROE will be entitled, in addition to any other rights available at law or in equity, to apply for immediate injunctive relief without any requirement to post a bond or other security and Subscriber acknowledges and agrees to not contest such application.
8. Severability. If any provision or portion thereof of these Terms of Service or their application in a particular circumstance is held to be invalid or unenforceable to any extent in any jurisdiction, such provision or portion thereof will, as to such jurisdiction only, be ineffective to the extent of such unenforceability, all other provisions and portions thereof of these Terms of Service will not be affected thereby and will be valid and enforced to the fullest extent permitted by law.
9. Dispute Resolution. Please read these Arbitration Provisions carefully. It is part of your contract with Company and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
  1. Applicability of Arbitration Provisions. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms of Service, Privacy Policy or the use of any product or service provided by ROE that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of these Arbitration Provisions. Unless otherwise agreed to, all arbitration proceedings shall be held in English. These Arbitration Provisions apply to you and the Company, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms of Service.
  2. Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to the Company should be sent to: [NOTICE ADDRESS]. After the Notice is received, you and the Company may attempt to resolve the claim or dispute informally. If you and the Company do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
  3. Arbitration Rules. Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms of Service. The AAA Consumer Arbitration Rules (“Arbitration Rules”) governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within 100 miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise. If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearings. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If the arbitrator grants you an award that is greater than the last settlement offer that the Company made to you prior to the initiation of arbitration, the Company will pay you the greater of the award or $2,500.00. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.
  4. Additional Rules for Non-Appearance Based Arbitration. If non-appearance based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
  5. Time Limits. If you or the Company pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.
  6. Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and the Company, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and the Terms of Service. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and the Company.
  7. Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under these Arbitration Provisions. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and the Company in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND THE COMPANY WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
  8. Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR SUBSCRIBER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
  9. Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce these Provisions, to enforce an arbitration award, or to seek injunctive or equitable relief.
  10. Severability. If any part or parts of these Arbitration Provisions are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Provisions shall continue in full force and effect.
  11. Right to Waive. Any or all of the rights and limitations set forth in these Arbitration Provisions may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of these Arbitration Provisions.
  12. Survival of Arbitration Provisions. These Arbitration Provisions will survive the termination of your relationship with Company.
  13. Small Claims Court. Notwithstanding the foregoing, either you or the Company may bring an individual action in small claims court.
  14. Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under these Arbitration Provisions.
  15. Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets shall not be subject to these Arbitration Provisions.
  16. Courts. In any circumstances where the foregoing Arbitration Provisions permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within Los Angeles County, California, for such purpose.
10. Force Majeure. Any failure or delay by ROE in the performance of its obligations pursuant to these Terms of Service will not be deemed a default or breach of these Terms of Service or a ground for termination to the extent such failure or delay is due to computer or Internet or telecommunications breakdowns, denial of service attacks, fire, flood, earthquake, elements of nature or acts of God, acts of war, terrorism, riots, civil unrest, rebellions or revolutions in any nation where the obligations under these Terms of Service are to be executed, strikes, supplier and third-party failure, lockouts, labor difficulties, quarantines, health related orders, or other similar actions taken by governmental authorities, or any similar cause beyond the reasonable control of ROE.
11. Electronic Communications. The communications between Subscriber and ROE use electronic means, whether a Party uses the Service or send us emails, or whether ROE posts notices via the Service or communicates with Subscriber via email. For contractual purposes, Subscriber (a) consents to receive communications from ROE in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that ROE provides to Subscriber electronically satisfy any legal requirement that such communications would satisfy if it were be in a hardcopy writing. The foregoing does not affect Subscriber’s non-waivable rights.
12. Entire Agreement. these Terms of Service and any Package form contains the final and entire agreement of the parties and supersedes all previous and contemporaneous verbal or written negotiations, understandings, or agreements regarding the Services.
13. Export Laws Compliance. Neither Party will export, directly or indirectly, any technical data acquired from the other Party pursuant to these Terms of Service (or any product utilizing such data) to any country for which the United States Government, any agency thereof, or any applicable foreign governmental body at the time of export requires an export license or other governmental approval without first obtaining such license or approval. Each Party will comply with all applicable export and import laws and regulations.