Terms Of Service
RePic, Inc. (“RePic,” “we,” “us,” and/or “our”)provides the proprietary RePic downloadable desktop application (the “Application”)and online software platform (the “Platform”) that enables users to create, publish and share presentations (the “Service”). The term “RePic Services” as used throughout this Terms of Service Agreement (this “Agreement”),means the Application, Platform and/or any services that RePic provides Customer in connection with the Application and/or Platform.
As used in this Agreement, the term “Customer” means the individual, organization and/or or entity specified on the applicable order form submitted by, or on behalf of, such individual, organization and/or entity for the purchase of a subscription license to access the RePic Services.
IMPORTANT –Please read this agreement CAREFULLY. THIS AGREEMENT sets forth the legally binding terms that GOVERN THE USE OF THE RePic SERVICES. BY SUBMITTING AN ORDER FORM TO PURCHASE A SUBSCRIPTION TO USE THE RePic SERVICES, OR BY CLICKING “I ACCEPT,”“CREATE”, OR OTHERWISE PROCEEDING WITH THE USE OF THE RePic SERVICES (ORANY PART THEREOF), YOU: (1) acknowledge that YOU have read, understand, and agree to be bound by this Agreement (INCLUDING ALL OF THE TERMS AND CONDITIONS SPECIFIED OR REFERENCED BELOW); (2) represent that customer is eligible to enter into this Agreement pursuant to the eligibility requirements set forth below in Section 1; (3) REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT (INCLUDING ALL OF THE TERMS AND CONDITIONS SPECIFIED OR REFERENCED BELOW), ON BEHALF OF THE CUSTOMER; AND (4) AGREE THAT CUSTOMER IS ENTERING INTO THIS AGREEMENT WITH RePic SLIDES, INC.
Please be advised that RePic does not provide warranties for the RePic Services, and this Agreement limits our liability. Please see Sections 6 and 7 for further information.
IF YOU AND/OR THE CUSTOMER DOES NOT AGREE WITH ALL OF THE TERMS OF THIS AGREEMENT, OR YOU DO NOT HAVE AUTHORITY TO BIND CUSTOMER TO THIS AGREEMENT, OR CUSTOMER DOES NOT MEET THE ELIGIBILITY REQUIREMENTS, DO NOT PURCHASE A SUBSCRIPTION or otherwise access or USE THE RePic SERVICES, OR ANY PART THEREOF.
1. ELIGIBILITY
Customer must be at least 18 years of age or the age of majority in Customer’s jurisdiction. Customer affirms and represents and warrants that Customer is 18 years old or the age of majority in Customer’s jurisdiction, and is fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement. In addition, the RePic Services are not intended for use by individuals under the age of 13, or the equivalent minimum age in the relevant jurisdiction. Customer must ensure, and represents and warrants, that each Authorized User is at least 13 years of age, or the equivalent minimum age in the relevant jurisdiction. Any use or access to the RePic Services (or any part thereof) by Customer and/or any Authorized User that does not meet the eligibility requirements set forth in this Section is strictly prohibited and is a material violation of this Agreement.
2. ACCESS AND USE OF RePic'S SERVICES
To register to use the RePic Services You must provide RePic with the information requested in the registration process, including Your email address. You are responsible for all activities that occur under Your account and RePic and RePic’s affiliates are not responsible for unauthorized access to Your account. You will contact RePic immediately if You believe an unauthorized third party may be using Your account or if Your account information is lost or stolen. You will provide complete and accurate information during the registration process and will update it to ensure it remains accurate.
2.1. Accounts. To access and use the RePic Services, Customer is required to register an account (“Account”). Each Authorized User shall be required to register as an authorized user of Customer’s Account. Customer agrees to, and shall ensure that its Authorized Users, provide and maintain up to date information that is true, accurate, current, up to date, and complete. Customer agrees that it will not, and will not permit any Authorized User or other third party to: (a)create an Account or sign up to access the RePic Services using a false identity or fictitious name or information, and/or (b) create an Account or use the RePic if Customer has been previously removed or banned from use of the RePic Services, or any part thereof. Customer understands and agrees that Customer is solely responsible for maintaining the confidentiality of and protecting Customer’s and its Authorized User’s password for the Account. Customer is solely responsible for any activity originating from Customer’s Account, including, without limitation, any of its Authorized User’s Accounts, regardless of whether such activity is authorized by Customer. Customer agrees to notify RePic immediately regarding any unauthorized use of or access to Customer’s Account or the Accounts of any of its Authorized Users.
2.2. Administrators; Authorized Users. Customer may designate an administrator or administrators (each, an “Administrator”) to administer and manage Customer’s Account, which includes, without limitation, the right to invite Customer’s employees, contractors, and/or agents, to access and use RePic's Services as an authorized user under Customer’s Account (“Authorized User”). For the avoidance of doubt, the term “Authorized Users” as used in this Agreement, includes Administrators. In addition, an Administrator may set certain permissions and access rights to each Authorized User (“Permissions”). Customer acknowledges and agrees that depending on the Permissions granted to an Authorized User, such Authorized User may (a) subsequently invite or enable other Authorized Users with the same access and ability to use the RePic Services, and such additional Authorized User will be deemed an Authorized User of the Account; and/or (b) have the ability to view Customer Data that is connected to the Account. Customer acknowledges and agrees that Customer is solely responsible and liable for inviting Authorized Users and the Permissions granted to Authorized Users by the Administrator(s) of the Account. Customer shall not permit any person other than Authorized Users to access and use the Service, and shall ensure that Authorized Users use the RePic Services solely in accordance with this Agreement. Customer acknowledges and agrees that Customer is solely responsible for the use of the RePic Services by Authorized Users, and any breach of this Agreement by any Authorized User will be deemed a breach by Customer.
2.3. Subscription Plans. RePic will provide Customer and its Authorized Users access to the RePic Services in accordance with the subscription plan purchased by Customer from RePic (the “Subscription Plan”). Each Subscription Plan shall begin on the date Customer obtained the Subscription Plan, or on the start date specified in the applicable written or electronic order form entered into between Order Form, and continue for the applicable subscription period (e.g., monthly or annually) selected by Customer for such Subscription Plan (the “Subscription Term”). The Subscription Term shall automatically renew for successive periods equal to the initial Subscription Term, unless Customer provides us with written notice of non-renewal or termination prior to the expiration of Customer’s then-current Subscription Term.
2.4. License. Subject to Customer’s compliance with the terms and conditions of this Agreement, including payment of all applicable fees, RePic grants Customer a personal, non sublicensable, nonexclusive, non transferable, limited license, solely during the Subscription Term or Trial Period (as defined in and subject to Section 2.5 below), as applicable, and subject to the permitted user seats and/or other applicable usage limits of the Subscription Plan and/or or any other restrictions specified in the user manuals or documentation, applicable order form, or in writing by RePic regarding the scope of use of the RePic Services by Customer and/or its Authorized Users (collectively, the “Usage Parameters”): (a) to install and execute, and permit Authorized Users to install and execute, in object code form only, the Application on computers owned and/or controlled by Customer or the applicable Authorized User, and to access and use the RePic Services, over the internet, using the Application; and/or (b) to access and use, and permit Authorized Users to access and use the RePic Services using the Platform, over the internet, in each case set forth in clause (a) and (b) above, solely for Customer’s internal business or personal, non-commercial purposes and in accordance with the terms of this Agreement. Customer acknowledges and agrees that Customer will comply with all laws, rules, and regulations applicable to the use of RePic's Services.
2.5. Trial Version. Notwithstanding Section 2.4, if Customer has obtained the RePic Services on a trial basis (the “Trial Version”), Customer understands and agrees that the license set forth in Section 2.4 is granted to Customer by RePic for a period of fourteen (14) days, unless RePic has otherwise expressly authorized and agreed to in writing an extended trial period (the “Trial Period”) solely for Customer’s own internal evaluation purposes, and subject to any and all technical limitations implemented by RePic in the Trial Version. Customer acknowledges and agrees that if Customer has not purchased a Subscription Plan prior to the expiration of the Trial Period, this Agreement will automatically terminate (without the requirement of providing any termination notice) and the Trial Version may cease functioning. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE TRIAL VERSION IS PROVIDED “AS-IS’ AND WITHOUT ANY WARRANTY WHATSOEVER OR ANY SUPPORT OR OTHER SERVICES (INCLUDING ANY UPDATES OR UPGRADES).
2.6. Restrictions and Prohibited Uses. Customer may not, and may not permit any third party (including, without limitation, any Authorized User) to: (a) modify, alter, tamper with, repair, or otherwise create derivative works of the RePic Services or any part thereof; (b) reverse engineer, disassemble, or decompile the RePic Services or any part thereof, or apply any other process or procedure to derive the source code of any software included in, or any underlying technology of, the RePic Services or any part thereof; (c) distribute, license, assign, transfer, resell, sublicense or otherwise make available to any third party the RePic Services, or any part thereof; (d) attempt to disable or circumvent any security mechanisms used by the RePic Services (including, without limitation, any time-control disabling functionality or other mechanisms in the Trial Version); (e) use the RePic Services to store or transmit any malicious or unsolicited code or software, or store, transmit or upload any material and/or content that is false, inaccurate, illegal, abusive, harassing, harmful to reputation, pornographic, indecent, profane, obscene, hateful, racist, infringing, libelous, tortious, or otherwise objectionable in RePic’s reasonable opinion, or to store, transmit or upload any material or content in violation of third-party privacy rights; (f) upload or otherwise process any infringing or malicious content to or through the RePic Services; (g) attempt to gain unauthorized access to the RePic Services, or any related systems or networks; (h) frame or utilize framing techniques to enclose the RePic Services or any portion thereof; (i) use any meta tags, "hidden text", robots, spiders, crawlers, or other tools, whether manual or automated, to collect, scrape, index, mine, republish, redistribute, transmit, sell, license or download the RePic Services or any part thereof, including, without limitation any content, or any personal information of others without RePic’s prior written permission or authorization; (j) use the RePic Services to hack, spam, or phish RePic or any third party (including, without limitation RePic’s other users); (k) impersonate any person or entity, use a fictitious name, or falsely state or otherwise misrepresent Customer’s affiliation with any person or entity, including without limitation, Customer or RePic; (l) remove, alter, or obscure in any way any proprietary rights notices (including copyright notices) of RePic or its suppliers on or within the RePic Services and/or any related documentation; or (m) access or use the RePic Services in violation of any applicable local, state, national or international laws, rules or regulations. The RePic Services, Platform and/or Application may have storage and other limitations.
2.7. Open Source Components. The Application and/or Platform may contain third party open source software components (“Open Source Components”). Such Open Source Components are not licensed under this Agreement, but are instead licensed under the terms of the applicable open source license. Customer’s use of each Open Source Component is subject to the terms of each applicable license which are available to Customer on request from RePic. Notwithstanding any provision herein to the contrary, Customer is solely responsible for its compliance with such licenses. As used in this Agreement, the terms “Application” and “Platform” do not include Open Source Components.
2.8. Proprietary Rights. This Agreement does not transfer any right, title or interest in any intellectual property right to the other, except as expressly set forth in this Agreement. RePic and/or its licensors shall own and retain all rights, title and interest in and to (a) any text, graphics, images, music, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the RePic Services, including, without limitation, any presentation templates, but excluding Customer Content and Customer Data, (b) the RePic Services, including, without limitation, the Platform, Application, and Documentation, and (c) any and all modifications, enhancements and updates to the items listed in clause (a) and (b). There are no implied rights. RePic reserves all rights not expressly granted herein. Customer acknowledges that any ideas, inventions, suggestions for improvement or discussions submitted by Customer and/or its Authorized Users regarding any aspect of the RePic Services, including, without limitation, the functioning, features, and other characteristics thereof (or any component thereof) (all of the foregoing, collectively, “Feedback”) may be used by RePic without compensation or attribution to Customer or any Authorized User, and Customer hereby grants to RePic, its subsidiaries, affiliates and partners a worldwide, irrevocable, royalty free, non-exclusive, sublicensable and transferable license under all intellectual property rights in and to the Feedback for RePic to use for any purpose.
3. CUSTOMER DATA AND CONTENT
3.1. Customer Data. Customer understands and agrees that Beautiful may collect data and information, which may include Personal Data (as defined in Section 3.2 below), in connection with Customer’s and/or its Authorized User’s use of the Service (collectively, “Customer Data”). Customer grants to RePic a non-exclusive, royalty-free, fully-paid, worldwide license, under all of Customer’s intellectual property and proprietary rights, to any and all Customer Data reasonably necessary for RePic to provide Customer the RePic Services hereunder. Notwithstanding the foregoing, Customer acknowledges and agrees that RePic may use and exploit any aggregated non-personally identifiable data or information collected or obtained from Customer’s and/or its Authorized Users’ use of the RePic Services for any purpose.
3.2. Personal Data. Customer acknowledges and agrees that, as between the parties, with respect to the collection, transmission, disclosure, processing and/or use of any personally identifiable data and/or information through or in connection with the use of the RePic Services (“Personal Data”), that is subject to any applicable laws, rules, or regulations pertaining to data privacy or data security (“Data Protection Laws”), Customer is the data controller and RePic is merely a data processor and/or service provider as such terms are defined pursuant to Data Protection Laws. Customer represents and warrants that with respect to any Customer Data (including, without limitation, Personal Data) transmitted, hosted, stored or processed, or otherwise provided by Customer and/or its Authorized Users to RePic in connection with the use of the RePic Services, that: (a) Customer is in compliance with all Data Protection Laws, and (b) Customer has made all disclosures to, and obtained all permissions and/or approvals from, each applicable data source as may be necessary or required to transmit such data through the RePic Services. Personal Data provided or collected through or in connection with the use of the RePic Services shall only be used in accordance with this Agreement and our Privacy Policy. Customer agrees to execute and/or enter into any documents, agreements, statements, or policies reasonably deemed necessary or appropriate by RePic to comply with any Data Protection Laws with respect to any Personal Data. Without limiting the foregoing, if Customer is located in the European Union, Customer may request a Data Processing Addendum (“DPA”) from us by contacting RePic at privacy@RePic.
3.3. Customer Content. Customer is solely responsible for the development, content, operation, maintenance, and use of any, content, materials, presentation slides, and/or any other information submitted, uploaded, generated or provided by or on behalf of Customer and/or any Authorized Users in connection with the use of the RePic Services (collectively, “Customer Content”). Customer shall ensure that Customer Content, and the use of it by Customer and Authorized Users, complies with this Agreement and any applicable laws, rules or regulations.
3.4. Responsibility. Customer is responsible for properly configuring and using the RePic Services and taking steps to maintain appropriate security, protection and backup of Customer Data and Customer Content. Customer acknowledges and agrees that Customer is solely responsible for Customer Content, including its legality, reliability, accuracy and appropriateness, and determining who will receive access or copies to Customer Content. Customer represents and warrants that Customer will not, and will not permit any third party (including, without limitation, any Authorized User) to use the RePic Services to store or process protected health information or sensitive data and/or information, or any other data or information that Customer does not have the legal right to process or store. Customer further represents and warrants that : (a) Customer or its licensors own all right, title, and interest in and to Customer Content; (b) Customer has all necessary rights and/or authorizations to grant the license to RePic to Customer Content and Customer Data contemplated by this Agreement; and (c) none of the Customer Content and/or Customer Data violates this Agreement, any applicable law or any third party’s intellectual property, privacy, or other right.
4. FEES AND PAYMENT TERMS
4.1. Fees. Customer shall pay the applicable fees, if any, for the Subscription Plan obtained by Customer. Except as otherwise set forth in this Agreement, the fees payable by Customer for the Subscription Plan will remain fixed during the Subscription Term unless Customer (a) exceeds the Usage Parameters, (b) upgrades the Subscription Plan and/or increases the Usage Parameters, and/or (c) subscribes to additional features or products. In the event a price change applies, Customer will be charged at the start of the next billing cycle for such additional fees. For the avoidance of doubt, Customer acknowledges and agrees that any downgrade to the Subscription Plan shall not take effect until the next renewal date of the applicable Subscription Term, regardless of Customer’s billing cycle for such Subscription Plan (i.e. for monthly Subscription Plans, prior to the start of the next month, and for annual Subscription Plans, prior to the start of the next year). Subscription Plans shall renew at RePic’s then-current pricing for such Subscription Plan.
4.2. Payment Terms. All fees are due and payable by Customer in advance, unless otherwise expressly and mutually agreed to by Customer and RePic in writing. Customer expressly agrees that RePic is permitted to bill Customer the applicable fees, any applicable tax and any other charges Customer may incur with RePic in connection with such Subscription Plan, and Customer hereby authorizes RePic to charge the fees to the credit card, or other payment method, Customer provides at the time the Subscription Plan is purchased, in accordance with the billing terms in effect at the time a fee or charge is due and payable. All fees are non-refundable and non-cancellable. If payment is not received or cannot be charged to Customer for any reason in advance, RePic reserves the right to suspend or terminate Customer’s and its Authorized User’s access to the RePic Services, downgrade the Subscription Plan and/or terminate this Agreement.
4.3. Taxes. The fees are exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”), and Customer is and shall be responsible for payment of all such taxes (other than taxes based on RePic’s income), and any related penalties and interest, arising from the payment of the fees, the delivery of the RePic Services, or performance of any services by RePic hereunder.
5. TERM; TERMINATION; CHANGES TO THE SERVICES
5.1. Term. The term of this Agreement commences when Customer accepts this Agreement (such as by creating an account) and will remain in effect during the Subscription Term (including any renewal thereof), or until terminated in accordance with this Agreement (whichever is sooner).
5.2. Termination; Suspension. Customer may terminate this Agreement at any time by cancelling the Customer's Account. If, in RePic, in good faith, believes that Customer and/or any Authorized User has used the RePic Services (or any part thereof) in violation of this Agreement, including any incorporated guidelines, terms or rules, RePic may (a) suspend Customer’s and/or any Authorized User’s access to the Services (or any part thereof), and/or (b) terminate this Agreement immediately upon written notice to Customer.
5.3. Effect of Termination. Upon termination of this Agreement (a) the rights and licenses granted to Customer’ under this Agreement immediately terminate and Customer shall cease, and ensure its Authorized Users cease, using the RePic Services, Platform and Application, and (b) all fees for the remainder of Customer’s Subscription Plan as of the effective date of termination shall immediately become due and payable. Customer is solely responsible for deleting or retrieving Customer Content from the RePic Services prior to termination for any reason. If RePic terminates Customer’s Account or this Agreement, RePic will provide Customer with a reasonable opportunity to retrieve Customer’s presentation data from the RePic Services; provided that, Customer submits a written request to retrieve such data by email to RePic within seven (7) days after Customer receives notice regarding the termination. In any event, Customer’s presentation data will be deleted from the RePic Services no earlier than fourteen (14) days after the termination notice has been sent to Customer. The following Sections shall survive any termination or expiration of this Agreement: 1, 2.2, 2.6, 2.7, 2.8, 3, 4, 5.3, 6, 7, 8, 9, 10, 11, 12 and 13.
5.4. Changes to the Services. Customer understands and agrees that RePic may change, suspend or discontinue any part of the RePic Services and/or the RePic Services as a whole. RePic will notify Customer of any material change to or discontinuation of the RePic Services by email or via RePic’s website. Customer acknowledges and agrees that RePic will not be liable to Customer or to any third party (including, without limitation, any Authorized User) for any modification, suspension or discontinuance of RePic's Services (or any part thereof).
6. WARRANTY DISCLAIMER
THE RePic SERVICE (AND ANY PART THEREOF), AND ANY OTHER MATERIALS, CONTENT, OR SERVICES PROVIDED OR MADE AVAILABLE BY RePic, ARE PROVIDED "AS IS" AND "AS AVAILABLE". RePic AND ITS LICENSORS AND SUPPLIERS HEREBY EXPRESSLY DISCLAIM ANY REPRESENTATIONS, WARRANTIES OR GUARANTEES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, SATISFACTORY PURPOSE, ACCURACY, OR NON-INFRINGEMENT. RePic AND ITS LICENSORS AND SUPPLIERS DO NOT WARRANT OR MAKE ANY GUARANTEE THAT DEFECTS WILL BE CORRECTED OR THAT THE RePic SERVICES (OR ANY PART THEREOF), OR ANY OTHER MATERIALS, CONTENT, AND/OR SERVICES PROVIDED BY RePic OR MADE AVAILABLE THROUGH RePic SERVICES: (A) WILL MEET CUSTOMER’S OR ANY AUTHORIZED USER’S REQUIREMENTS; (B) WILL BE COMPATIBLE WITH CUSTOMER’S OR ITS AUTHORIZED USERS’ NETWORK, COMPUTER OR MOBILE DEVICE, OR ANY THIRD PARTY PRODUCTS OR SERVICES; (C) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE BASIS; OR (D) WILL BE ACCURATE OR RELIABLE. CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE USE OF THE RePic SERVICES, AND ALL RESULTS OF SUCH USE IS SOLELY AT CUSTOMER’S OWN RISK. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER AND/OR ANY AUTHORIZED USER FROM RePic OR ANY THIRD PARTY, SHALL CREATE ANY WARRANTY.
7. LIMITATION OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (A) NEITHER PARTY SHALL BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES, OR DAMAGES FOR ANY LOST PROFITS, LOST SAVINGS, OR ARISING FROM LOSS OF USE, CONTENT OR DATA OR ANY ACTUAL OR ANTICIPATED DAMAGES, REGARDLESS OF THE LEGAL THEORY ON WHICH SUCH DAMAGES MAY BE BASED, AND EVEN IF RePic HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) EACH PARTY’S TOTAL AGGREGATE LIABILITY FOR ANY PERMITTED DIRECT DAMAGES UNDER THIS AGREEMENT WILL BE LIMITED TO THE GREATER OF: (I) THE AMOUNT OF FEES PAID OR PAYABLE BY CUSTOMER TO RePic HEREUNDER WITH RESPECT TO THE RePic SERVICES GIVING RISE TO THE CLAIM OR LIABILITY IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM OR LIABILITY, OR (II) TWO HUNDRED DOLLARS ($200.00). THE FOREGOING LIMITATIONS SHALL NOT APPLY TO (A) A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, (B) CUSTOMER’S MISUSE OF RePic’S INTELLECTUAL PROPERTY OR ITS INDEMNIFICATION OBLIGATIONS UNDER SECTION 10.2, (C), CUSTOMER’S VIOLATION OF ANY APPLICABLE LAWS, INCLUDING, WITHOUT LIMITATION, ANY DATA PROTECTION LAWS, OR (D) A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR FRAUDULENT MISREPRESENTATION. THE LIMITATIONS SPECIFIED IN THIS SECTION 7 SHALL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF THESE TERMS OR ANY LIMITED REMEDY HEREUNDER. RePic DISCLAIMS ALL LIABILITY OF ANY KIND OF ITS AFFILIATES, LICENSORS AND SUPPLIERS.
8. JURISDICTIONAL APPLICATION OF LIMITATIONS AND DISCLAIMERS
Some jurisdictions may not allow the exclusion and/or limitation of implied warranties or conditions, or allow limitations on how long an implied warranty lasts, or exclusions and/or limitations on incidental, special, consequential, or other damages, so the limitations and/or exclusions set forth in Section 6 and 7 above may not apply to Customer. In such an event, RePic’s warranties and conditions, and liability for such damages, with respect to the RePic Services will be limited to the greatest extent permitted by applicable law in such jurisdiction.
9. BASIS OF BARGAIN
The warranty disclaimer and limitation of liability set forth above in Section 6 and 7 are fundamental elements of the basis of the agreement between RePic and Customer. RePic would not be able to provide the Services on an economic basis without such limitations. The warranty disclaimer and limitation of liability inure to the benefit of RePic’s suppliers.
10. INDEMNIFICATION
10.1. RePic Indemnity. RePic will defend at its own expense any claim or action against Customer brought by a third party to the extent that the action is based upon a claim that the Platform and/or Application infringes any copyrights or misappropriates any trade secrets of such third party, and RePic will pay those costs (including reasonable attorneys’ fees) and damages finally awarded against Customer in any such action that are specifically attributable to such claim or those costs (including reasonable attorneys’ fees) and damages agreed to by RePic in a monetary settlement of such action. If the Platform and/or Application becomes, or in RePic’s opinion is likely to become, the subject of an infringement claim, RePic may, at its option and expense, either: (a) procure for Customer the right to continue exercising the rights licensed hereunder; and/or (b) replace or modify the Platform and/or Application, as applicable, so that it becomes non-infringing. Notwithstanding the foregoing, RePic will have no obligation under this Section or otherwise with respect to any infringement or misappropriation claim: (i) based upon the use of a superseded release of the Platform and/or Application, if the claim would have been avoided by the use of the current release, (ii) based upon any modification of the Platform and/or Application by any person other than RePic, (iii) based upon the use, operation, or combination of the Platform and/or Application with software programs, data, equipment, materials or business processes not provided by RePic, or (iv) based upon the Customer Content or Customer Data. THIS SECTION STATES RePic’S ENTIRE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT AND MISAPPROPRIATION CLAIMS AND ACTIONS.
10.2. Customer Indemnity. Customer shall defend, indemnify, and hold harmless RePic, RePic’s affiliates and licensors, and each of their respective employees, officers, directors, and representatives from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable legal fees) arising out of or relating to: (a) Customer’s and its Authorized Users’ use of the RePic Services (including any activities under Customer’s Account and/or Authorized Users’ Accounts); (b) Customer’s and/or any Authorized User breach of this Agreement or any license applicable to any Open Source Components, (c) Customer’s violation of applicable law, rules or regulations, including, without limitation, any Data Protection Laws; (d) Customer Content, or the combination of Customer Content with other applications, content or processes, including any claim involving alleged infringement or misappropriation of third-party rights by Customer Content or by the use, development, design, production, advertising or marketing of Customer Content; or (e) Customer Data.
10.3. Procedure. The indemnified party shall (a) promptly notify the indemnifying party in writing of the claim (a delay in providing notice does not excuse these indemnity obligations unless the indemnifying party is prejudiced by such delay), (b) give the indemnifying party sole control of the defense of the claim (and in any related settlement negotiations), and (c) cooperate and, at the indemnifying party’s request and expense, assist in such defense. The indemnified party may participate in the defense of the claim using its own counsel (at its own expense). The indemnifying party may not settle the claim without the indemnified party’s consent if such settlement imposes a payment or other obligation on the indemnified party.
11. EXCLUSIONS
Customer acknowledges and agrees that RePic will have no responsibility or liability of any kind under this Agreement, arising or resulting from: (a) problems caused by failed Internet connections or other hardware, software or equipment which is not owned, controlled or operated by RePic; (b) nonconformities resulting from Customer’s, any Authorized Users’, or any third party’s misuse, abuse, negligence, or improper or unauthorized use of all or any part of the RePic Services; (c) modification, amendment, revision, or change to the RePic Services (or any part thereof) by any person other than RePic; or (d) any other factor outside of RePic’s reasonable control.
12. GOVERNMENT LICENSES
The Platform and Application, and any related documentation, licensed to Customer under this Agreement is "commercial computer software" as that term is described in DFAR 252.227-7014(a)(1). If acquired by or on behalf of a civilian agency, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in 48 C.F.R. 12.212 (Computer Software) and 12.11 (Technical Data) of the Federal Acquisition Regulations (“FAR”) and its successors. If acquired by or on behalf of any agency within the Department of Defense (“DOD”), the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in 48 C.F.R. 227.7202 of the DOD FAR Supplement and its successors.
13. GENERAL
13.1. Miscellaneous. RePic and Customer are independent contractors, and neither party, nor any of their respective affiliates, is an agent of the other for any purpose or has the authority to bind the other. This Agreement does not create any third party beneficiary rights in any individual or entity that is not a party to this Agreement. Customer may not assign this Agreement, or delegate or sublicense any of its rights under this Agreement, without RePic’s prior written consent. RePic’s failure to enforce any provision of this Agreement will not constitute a present or future waiver of such provision nor limit RePic’s right to enforce such provision at a later time. If any portion of this Agreement is held to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect.
13.2. Entire Agreement. This Agreement is the entire agreement between Customer and RePic regarding the subject matter of this Agreement. This Agreement supersedes all prior or contemporaneous representations, understandings, agreements, or communications between Customer and RePic, whether written or verbal, regarding the subject matter of this Agreement.
13.3. Notice. All communications and notices to be made or given pursuant to this Agreement must be in English. RePic may provide any notice to Customer under this Agreement by posting a notice in the RePic Services or sending a message to the email address associated with the Customer’s Account. Customer will be deemed to have received any email sent to the email address then associated with Customer’s Account when RePic sends the email, whether or not Customer actually receives the email. To give RePic notice under this Agreement, Customer must (1) email RePic at support@RePic. By using the RePic Services, Customer consents to receiving electronic communications from RePic and Customer agrees that any notices, agreements, disclosures or other communications that we send Customer electronically will satisfy any legal communication requirements, including that such communications be in writing.
13.4. Choice of Law; Jurisdiction. The laws of California govern this Agreement and any dispute of any sort that might arise from or relate to this Agreement, without reference to any applicable conflict of laws rules. Customer consents to exclusive jurisdiction and venue of San Francisco County, California courts. RePic may seek injunctive or other relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of RePic’s, RePic’s affiliates, or any third party’s intellectual property or other proprietary rights. The United Nations Convention for the International Sale of Goods does not apply to this Agreement.
13.5. Force Majeure. RePic is not liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond RePic’s reasonable control, including acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, war, plague, epidemic, pandemic, outbreaks of infectious disease or any other public health crisis, including quarantine, shelter in place or other orders and/or restrictions.
13.6. Amendments. RePic reserves the right to update or modify this Agreement at any time. The revised version of this Agreement will be posted on our site at (the “Site”) and will be effective on the day posted, except as otherwise stated in this Section. If we make any material changes to this Agreement, we will notify Customer by sending a notification to the email address we have on file for Customer, or, if we do not have an email address on file, by posting a notice of the changes on the Site and through the user interface of the RePic Services. It is the Customer's responsibility to regularly visit and review this Agreement. If Customer does not agree to any updates or modifications to this Agreement, Customer may terminate its Account and cease access and use of the RePic Services. Customer’s or any Authorized User’s continued use of the RePic Services, after we have posted the updated Agreement, or, in the event of material changes, ten (10) days following the date we first notified Customer of such material changes either through email or the date we posted the notice of such changes on the Site or through the user interface of the RePic Services, signifies Customer’s acknowledgment and agreement to be bound by the revised Agreement. RePic last updated this Agreement on the date listed at the beginning of this Agreement.
13.7. Export. Customer acknowledges that the laws and regulations of the United States of America and foreign jurisdictions may restrict the export and re-export of certain commodities and technical data of United States of America origin, including the RePic Services. Customer agrees that Customer will not export or re-export the RePic Services without the appropriate United States or foreign government licenses or permits.
14. QUESTIONS AND ADDITIONAL INFORMATION
Please feel free to contact our developer email if you have any questions about this Agreement.