CUSTOMER TERMS
Last Modified: July 13, 2020
These Customer Terms (the “Customer Terms”) apply to the use of dynmhx.io and all related apps and services that we offer to the Customer and its Users (the “Services”). By using the Services, the Customer is agreeing to these Customer Terms.
For clarity, all references to “us” (and similar words such as “we” and “our”) mean Dynamhex, Inc., a Delaware corporation (regardless if they are capitalized); and all references to “Customer” means the individual or organization that signed up for a Subscription through an Order Form.
Use of the Services
Order Forms, Subscriptions, & License to Use the Services
Subject to the Customer’s compliance with these Customer Terms, if a Customer purchases a subscription to the Services (a “Subscription”) using an order form (the “Order Form”), then we grant the Customer and individuals using the Services under that Subscription (the “Users”) a limited, non-exclusive, non-sublicensable, non-transferable, and revocable license to access and use the Services solely for their intended purpose, for the duration of the Subscription. However, each User must agree to the User Terms (available at www.dynmhx.io/user-terms) before they can use the Services. The phrase “Customer Terms” includes both the terms on this page and the Order Form. If the Order Form contains provisions that conflict with the terms on this page, then the provisions in the Order Form will control.
Provision of Services
We will use reasonable efforts to make the Services available to the Customer and its Users at all times during the Subscription, subject to scheduled downtime, which will generally not occur without prior advance notice to the Customer. We may add to, modify, or terminate, portions of the Services at any time for any reason.
Prohibited Uses
The Customer shall not directly or indirectly:
- Use the Services for any illegal purpose or in such a way that would violate another contract.
- Resell or otherwise make the Services available to third parties without our express permission.
- Use the Services in any way that may harm the Services, including without limitation using bots, scrapers, harvesters, or other automated systems.
- Take any action which constitutes reverse engineering, decompiling, disassembling, or otherwise attempting to discover the source code, object code, or underlying structure or algorithms, of the Services.
- Attempt to use the Services without our express permission after we have terminated the Customer’s right to use the Services.
Privacy Policy
Our privacy policy is available at www.dynmhx.io/privacy-policy (the “Privacy Policy”).
User Accounts
We may allow Users to create accounts (or we may create accounts for them) to use the Services. We may also allow the Customer to (or we may) establish different types of user accounts, each with unique permission sets. The Customer is responsible for everything which its Users do on the Services.
Application Program Interface (API) Terms
General
We may allow certain Customers and their Users to interact with the Services (including submitting, receiving, modifying, using, and displaying, certain information and data from the Services) using their own application (an “Application”). Those Customers and their Users must comply with these additional API Terms while using the Application and our APIs. For clarity, for Customers and Users using our APIs, the term “Services” includes our APIs.
Usage Limitations
We may limit the amount or types of information and data which you may submit or receive using our APIs at any time, for any reason.
Data Restrictions
Although Customers may use their Application to interact with the Services, the Customer and its Users may not use any of our information or data which they obtain through that Application for any use not otherwise permitted by these Customer Terms or our user Terms.
No Assignment
Customers and their Users may not assign any of the rights we grant to them with respect to their Applications or our APIs without our prior and express written consent.
API Documentation
If we publish any additional API Documentation, then the Customer and its Users shall comply with all of that documentation at all times with respect to their use of our APIs.
Suspension and Termination of API Access
We may suspend or terminate one or more of a Customer’s or its Users’ rights to interact with the Services using an Application and our API at any time, for any reason.
Payment Obligations
General
The Customer shall pay us all fees associated with the Customer’s Subscription during the initial term and all renewal terms. Those fees will be described during the Customer’s checkout process (or, if applicable, on the Customer’s Order Form). All fees must be paid in advance, are non-cancelable, and non-refundable. All fees are exclusive of taxes and similar government assessments of every nature and form, all of which must be paid by the Customer and not us.
Additional Services
If the Customer requests additional services beyond those offered in the Customer’s Subscription, then we may provide the additional services and invoice the Customer for the same. The Customer shall pay all undisputed payments in those invoices within 30 days of receipt. However, we will not provide any additional services without the Customer’s prior and express written (including email) consent.
Interest
We may charge the Customer interest at 1.5% per month for any undisputed fees which are not timely paid in accordance with these Customer Terms.
Change to Fees
We may change the fees for the Services (and additional services) after the initial term by providing the Customer with written (including email) notice of the change at least 30 days prior to the expiration of the initial term or the then current renewal term.
Content & Intellectual Property
Our Rights
As between us and the Customer and its Users, we own and will continue to own the Services and all intellectual property rights related to the Services (including all copyright, moral rights, trademark and service mark (and related goodwill), trade secrets, and patent rights).
The Customer’s Rights
As between us and the Customer and its Users, the Customer will own all Customer Content. “Customer Content” means all content uploaded to the Services by the Customer or its Users. Subject to the provisions in these Customer Terms, the Customer (on behalf of itself and all of its Users) grants us an irrevocable, worldwide, perpetual, royalty-free, sub-licensable, transferable, non-exclusive, license to access, store, use, process, copy, modify, distribute, display, perform, create derivative works from, and export, the Customer Content with or without attribution for the following purposes: (a) to provide, maintain, and update the Services; (b) to prevent or address service, security, support, and technical issues; (c) as required by law or these Customer Terms; and (d) as permitted by the Customer. The Customer represents and warrants that it has all rights to the Customer Content from all individuals and organizations required to allow it to grant that license to us.
Confidentiality
Non-Disclosure
We shall (a) take all reasonable measures to protect the confidentiality of the Customer’s Confidential Information in our possession; (b) not disclose any of the Customer’s Confidential Information to any third party except as permitted in these Customer Terms or as otherwise directed by the Customer; and (c) not use any of the Customer’s Confidential Information except as permitted in these Customer Terms or as otherwise directed by the Customer.
We may, however, disclose the Customer’s Confidential Information to our employees and contractors as required in the ordinary course of our business provided each recipient agrees to protect the Customer’s Confidential Information in writing. Additionally, we may disclose the Customer’s Confidential Information to the extent we are compelled to do so by law, provided we (a) take reasonable measures to maintain the confidentiality of the Customer’s Confidential Information (for example, seeking a protective order); and (b) provide reasonable prior notice to the Customer to the extent legally permitted.
What is Confidential
“Confidential Information” means all of the Customer’s information the Customer or its Users disclose to us under these Customer Terms that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information does not include information that: (i) we knew before disclosure under these Customer Terms; (ii) becomes public through no fault of us; (iii) we independently developed; or (iv) was rightfully given to us by another party.
Duration
The Services may provide data and reports to Customers. However, we do not make any decisions regarding business or governmental affairs. Rather, it is solely up to each Customer to make their own decisions. We will not be liable for any such decisions. For more, please review the Warranties, Disclaimers, & Limitations of Liability provisions below.
Decision-Making
Our confidentiality obligations in these Customer Terms will apply during the Customer’s Subscription and will survive its termination for five years. These Customer Terms will not be used to limit or invalidate a party’s rights under applicable trade secret laws.
WARRANTIES, DISCLAIMERS, & LIMITATIONS OF LIABILITY
All references to “us” (and similar words such as “we” and “our”) in this section mean us and our parents, subsidiaries, affiliates, and licensors, and the owners, members, directors, officers, employees, contractors, and agents, of all of them.
- The Services are offered on an “as is” and “as available” basis “with all faults” without any representations or warranties of any kind.
- Without limitation, we do not represent or warrant that (a) the information on the Services is free from error; (b) the functionality of the Services will be uninterrupted, secure, or free of errors; (c) defects in the Services will be corrected; or (d) that the Services or the equipment the Services use are free of viruses.
- To the fullest extent permitted by law, we disclaim all representations and warranties (express, implied, and statutory), including the implied warranty of merchantability, the implied warranty of witness for a particular purpose, the implied warranty of noninfringement, title, accuracy of data and non-infringement, course of dealings, course of performance, and usage of trade, and also all liability for identity theft and other misuse of the Customer’s identity or content.
- We do not vet content submitted by anyone using the Services and we do not represent or guarantee that any such content is truthful or accurate or that the Customer or any User will have any right to use that content.
- We do not warrant, endorse, guarantee, or assume responsibility for, any product or service advertised or offered by a third party on the Services, or for any other websites or applications which are linked to or referenced in the Services. If a Customer or User uses or purchases any such products or services, or if the Customer or User clicks on any such links, they do so at their sole risk.
- We will not be liable to the Customer, a User, or any third party, for any indirect, special, incidental, consequential, cover, or punitive damages (including lost profits or revenues, loss of data, loss of use, or costs of obtaining substitute goods or services), arising out of or in connection to the Services or any links provided on the Services.
- All limitations of liability in these Customer Terms will apply regardless of whether the Customer or User or the third party bases the claim on contract, tort, strict liability, or any other legal theory, and whether we knew or should have known about the possibility of such damages.
- All limitations of liability in these Customer Terms will apply even if a remedy fails of its essential purpose and to the fullest extent permitted by law.
- Any cause of action or claim which the Customer may have which arises out of or in connection to the Services must be brought (if at all) within one year after the cause of action or claim accrued. Otherwise, such cause of action or claim will be permanently barred.
- Subject to the limitations of liability in these Customer Terms: our liability to a Customer will not exceed the amount the Customer paid for the Services, and our liability to a User will not exceed $100.
Some jurisdictions do not allow certain disclaimers, limitations of liability, and exclusions. To the extent such jurisdictions’ laws are applicable to a Customer’s or Users’ use of the Services, such disclaimers, limitations of liability, and exclusions, will be limited to the extent required by the applicable law.
Arbitration
If a dispute arises between a Customer and us related to the Customer’s or its Users’ use of the Services or any agreement between us and the Customer or any agreement between us and the Customer’s Users, then the dispute will be resolved by binding arbitration rather than in court (arbitration does not involve a judge or jury and court review of arbitration awards is limited). To initiate an arbitration, the Customer must send a letter requesting arbitration and describing its claim to our registered agent on file with the Delaware Secretary of State. The arbitration proceedings will be held in Jackson County, Missouri. If this agreement to arbitrate is found not to apply to the Customer’s claim, then any judicial proceedings must be brought in accordance with the governing law and jurisdiction/venue provisions below.
CLASS ACTIONS ARE PROHIBITED: All claims, including all arbitration claims, must be brought on an individual basis and not as a plaintiff or class member in any purported class, consolidated, or representative proceeding. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations, are not allowed.
Notwithstanding that agreement to arbitrate, either party may assert a claim seeking injunctive or other equitable relief from the courts as necessary to stop unauthorized use or abuse of the Services or intellectual property infringement (for example, trademark, trade secret, copyright, or patent rights) without first engaging in arbitration.
Indemnification
The Customer shall indemnify us and our affiliates and the respective owners, directors, officers, managers, employees, contractors, and other representatives of each (the “Protected Parties”) against all reasonable expenses including attorneys’ fees, costs, and damages of every kind (the “Losses”) arising out of any suit, claim, investigation, or proceeding, related to any of the following actions or omissions of a Customer or its Users: the breach of these Customer Terms or any other agreement with us, the submission of content that violates third party rights or applicable laws, the violation of applicable law, in each case except to the extent that a Protected Party negligently or intentionally caused those Losses.
Arbitration
If a dispute arises between a Customer and us related to the Customer’s or its Users’ use of the Services or any agreement between us and the Customer or any agreement between us and the Customer’s Users, then the dispute will be resolved by binding arbitration rather than in court (arbitration does not involve a judge or jury and court review of arbitration awards is limited). To initiate an arbitration, the Customer must send a letter requesting arbitration and describing its claim to our registered agent on file with the Delaware Secretary of State. The arbitration proceedings will be held in Jackson County, Missouri. If this agreement to arbitrate is found not to apply to the Customer’s claim, then any judicial proceedings must be brought in accordance with the governing law and jurisdiction/venue provisions below.
CLASS ACTIONS ARE PROHIBITED: All claims, including all arbitration claims, must be brought on an individual basis and not as a plaintiff or class member in any purported class, consolidated, or representative proceeding. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations, are not allowed.
Notwithstanding that agreement to arbitrate, either party may assert a claim seeking injunctive or other equitable relief from the courts as necessary to stop unauthorized use or abuse of the Services or intellectual property infringement (for example, trademark, trade secret, copyright, or patent rights) without first engaging in arbitration.
Decision-Making
Our confidentiality obligations in these Customer Terms will apply during the Customer’s Subscription and will survive its termination for five years. These Customer Terms will not be used to limit or invalidate a party’s rights under applicable trade secret laws.
Arbitration
If a dispute arises between a Customer and us related to the Customer’s or its Users’ use of the Services or any agreement between us and the Customer or any agreement between us and the Customer’s Users, then the dispute will be resolved by binding arbitration rather than in court (arbitration does not involve a judge or jury and court review of arbitration awards is limited). To initiate an arbitration, the Customer must send a letter requesting arbitration and describing its claim to our registered agent on file with the Delaware Secretary of State. The arbitration proceedings will be held in Jackson County, Missouri. If this agreement to arbitrate is found not to apply to the Customer’s claim, then any judicial proceedings must be brought in accordance with the governing law and jurisdiction/venue provisions below.
CLASS ACTIONS ARE PROHIBITED: All claims, including all arbitration claims, must be brought on an individual basis and not as a plaintiff or class member in any purported class, consolidated, or representative proceeding. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations, are not allowed.
Notwithstanding that agreement to arbitrate, either party may assert a claim seeking injunctive or other equitable relief from the courts as necessary to stop unauthorized use or abuse of the Services or intellectual property infringement (for example, trademark, trade secret, copyright, or patent rights) without first engaging in arbitration.
Termination
Initial Term
A Customer’s Subscription begins on the start date in the Customer’s Order Form and continues during the initial term described in the Order Form.
Renewals
All Subscriptions automatically renew on an annual basis after the expiration of the initial term.
Termination
A Subscription may not be terminated early except as provided in these Customer Terms.
Non-Renewal
Either party may terminate a Subscription at the end of the then current term by providing written (including email) notice of non-renewal at least 30 days before the end of the then current term.
Termination for Cause
If we breach any of our material obligations in these Customer Terms and we fail to cure the breach within 10 days of receiving written notice of the breach from the Customer, then the Customer may immediately terminate its Subscription by providing written notice to us (including email).
If the Customer or any of its Users breach any of their material obligations in these Customer Terms (including non-payment of fees) or any agreement between us and the Customer or any agreement between us and the Customer’s Users, then we may immediately terminate the Customer’s Subscription by providing written notice to the Customer (including email).
Force Majeure
A party will not be liable for any delay of its obligations in these Customer Terms due to events beyond its reasonable control, including without limitation denial-of-service attacks, a failure by a third-party hosting provider or utility provider, strikes, shortages, riots, fires, acts of God, war, terrorism, and governmental actions.
Survival
All provisions in these Customer Terms which by their nature should survive termination of these Customer Terms will survive the termination.
Miscellaneous
Entire Agreement
These Customer Terms set forth the complete and entire agreement between the Customer and us relating to the subject matter in these Customer Terms and supersede all other discussions, negotiations, proposals, and agreements, whether oral or written, previously discussed or entered into, by the Customer and us relating to the subject matter in these Customer Terms.
Waiver
The failure or delay by a party to exercise any right or remedy in these Customer Terms shall not operate as a waiver of the same. The waiver by a party of a breach of any provision in these Customer Terms shall not operate as a waiver of any subsequent breach. A waiver shall not be effective unless and until it is in written form and signed by the waiving party.
Severability
Each provision in these Customer Terms will be treated as separate and independent of the other provisions. Accordingly, if a court with competent jurisdiction declares a provision unenforceable, then the parties will request the court to amend the provision to the minimum extent necessary so that it remains enforceable. If such amendment is not possible, then the parties will deem the unenforceable provision removed from these Customer Terms but continue to comply with the remaining provisions.
Assignment
The Customer may not assign its rights or obligations in these Customer Terms to any third party without our prior consent. We may assign our rights and obligations in these Customer Terms without limitation.
Governing Law & Jurisdiction
Our provision of the Services, the Customer’s and its Users’ use of the Services, these Customer Terms, and our Privacy Policy, will all be governed by and construed in accordance with the laws of Missouri excluding its conflict of law principles. If a dispute arises between the parties related to any of the foregoing, and if the dispute is not subject to the arbitration provisions above, each party consents to jurisdiction in, and the exclusive venue of, the state courts in Jackson County, Missouri, or if applicable, the U.S. District Court having jurisdiction over that county.
Waiver of Jury Trial
Both parties waive trial by jury in all actions, proceedings, or counterclaims brought by either party against the other on any matter arising out of or in any way connected to our provision of the Services, the Customer’s and its Users’ use of the Services, these Customer Terms, and our Privacy Policy.
Power to Amend These Customer Terms
We may amend these Customer Terms at any time, for any reason, with or without notice to the Customer. The Customer’s continued use of the Services after the amended Customer Terms are posted on the Services will constitute the Customer’s acknowledgment and agreement to the amended Customer Terms. However, to the extent the amended Customer Terms materially alter the Customer’s rights or obligations in these Customer Terms, the amended Customer Terms will become effective upon the earlier of (a) the Customer’s continued use of the Services with actual knowledge of the amended Customer Terms; or (b) 30 days after the amended Customer Terms are posted on the Services.
Contact
Except as otherwise required in these Customer Terms or by law, all notices and communications which the Customer may send to us should be sent to hello@dynmhx.io.