Effective Date: September 20, 2023
If you accept or agree to the Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to the Agreement and, in such event, “you” and “your” will refer and apply to that company or other legal entity.
THE SECTIONS BELOW TITLED “BINDING ARBITRATION” AND “CLASS ACTION WAIVER” CONTAIN A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER. THEY AFFECT YOUR LEGAL RIGHTS. PLEASE READ THEM.
We reserve the right, at our sole discretion, to modify, discontinue, or terminate the Platform and/or Services, or to modify the Agreement, at any time and without prior notice. If we modify the Agreement, we will post the modification on the Platform and/or Services or provide you with notice of the modification at the last email address you gave us. By continuing to access or use the Platform and/or Services after we have posted a modification on the Platform or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified Agreement. If the modified Agreement is not acceptable to you, your only recourse is to cease using the Platform and/or Services.
The Platform is available only to individuals aged 13 years or older. If you are 13 or older, but under the age of majority in your jurisdiction, you should review this Agreement with your parent or guardian to make sure that you and your parent or guardian understand it. If you are under the age of 13, you may not use the Platform. By registering as a Subscriber, you represent and warrant that you are at least 13 years old.
We reserve the right, in our sole and absolute discretion, to deny you access to the Platform, or any portion of the Platform and/or Services, without notice and without reason.
2. COMMUNITY GUIDELINES
DevStride’s community, like any community, functions best when its users follow a few simple rules. By accessing the Platform and/or Services, you agree to comply with these community guidelines (the “Community Guidelines”) and that:
We reserve the right, in our sole and absolute discretion, to deny you access to the Platform, or to any portion of the Platform and/or Services, without notice.
3. SIGN-IN NAME; PASSWORD; UNIQUE IDENTIFIERS
If you are a Subscriber, you will be required to create an account, which includes a sign-in name (“Sign-In Name”), a password (“Password”), and perhaps certain additional information that will assist in authenticating your identity when you log-in in the future (“Unique Identifiers”). When creating your account, you must provide true, accurate, current, and complete information. Each Sign-In Name and corresponding Password can be used by only one Subscriber. You are solely responsible for the confidentiality and use of your Sign-In Name, Password, and Unique Identifiers, as well as for any use, misuse, or communications entered or payments made through the Platform using one or more of them. You will promptly inform us of any need to deactivate a Password or Sign-In Name, or change any Unique Identifier. We reserve the right to delete or change your Password, Sign-In Name, or Unique Identifier at any time and for any reason and shall have no liability to you for any loss or damage caused by such action. DevStride will not be liable for any loss or damage caused by any unauthorized use of your account.
4. INTELLECTUAL PROPERTY
The Platform contains material, such as software, text, data, analytics, graphics, images, designs, sound recordings, audiovisual works, and other material provided by or on behalf of DevStride (collectively referred to as the “DevStride Content”). The DevStride Content may be owned by us or third parties. The DevStride Content is protected under both United States and foreign laws. Unauthorized use of the DevStride Content may violate copyright, trademark, and other laws. You have no rights in or to the DevStride Content, and you will not use the DevStride Content except as permitted under this Agreement. No other use is permitted without prior written consent from us. You must retain all copyright and other proprietary notices contained in the original DevStride Content on any copy you make of the DevStride Content. You may not sell, transfer, assign, license, sublicense, or modify the DevStride Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the DevStride Content in any way for any public or commercial purpose. The use or posting of the DevStride Content on any other website or in a networked computer environment for any purpose is expressly prohibited. If you violate any part of this Agreement, your permission to access and/or use the DevStride Content and the Platform automatically terminates and you must immediately destroy any copies you have made of the DevStride Content. The foregoing restrictions may be altered by your Subscription Agreement if you are a Subscriber.
The trademarks, service marks, and logos of DevStride (the “DevStride Trademarks”) used and displayed on the Platform are registered and unregistered trademarks or service marks of DevStride. Other company, product, and service names located on the Platform may be trademarks or service marks owned by others (the “Third-Party Trademarks,” and, collectively with DevStride Trademarks, the “Trademarks”). Nothing on the Platform should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Trademarks, without our prior written permission specific for each such use. Use of the Trademarks as part of a link to or from any site is prohibited unless establishment of such a link is approved in advance by us in writing. All goodwill generated from the use of the DevStride Trademarks inures to our benefit.
Elements of the Platform are protected by trade dress, trademark, unfair competition, and other state and federal laws and may not be copied or imitated in whole or in part, by any means, including, but not limited to, the use of framing or mirrors.
5. SUBSCRIBER CONTENT
Subscriber owns all right, title and interest in and to all data entered by the Subscriber manually into the Platform or downloaded into the Platform via [integrations] as well as any data that is based on or derived from the Subscriber content and provided to DevStride as part of the Services, and all intellectual property rights related to any of the foregoing (collectively, “Subscriber Content”). Subscriber hereby grants to DevStride, a perpetual, irrevocable, worldwide, royalty-free, non-exclusive license to use and disclose Subscriber Content and derivative works thereof only (i) in connection with DevStride’s performance of the Services, and (ii) in anonymized form for DevStride’s internal business purposes including, without limitation, statistical analysis and industry benchmarking. You acknowledge DevStride may create records from data provided to us by, or collected by us about, Platform users (including, but not limited to, Subscribers), by subjecting it to anonymization through the removal of all personal information and information about the source of such data.
If you submit Subscriber Content, each such submission constitutes a representation and warranty to DevStride that such Subscriber Content is your original creation (or that you otherwise have the right to provide the Subscriber Content), that you have the rights necessary to grant the license to the Subscriber Content under the prior paragraph, and that it and its use by DevStride and its content partners as permitted by this Agreement does not and will not infringe or misappropriate the intellectual property or moral rights of any person or contain any libelous, defamatory, or obscene material or content that violates the terms of this Agreement.
6. AGGREGATE DATA
We monitor your performance and use of the Platform and collect data in connection therewith. We may combine any and all of the above described data with other data, and use such combined data, or a subset thereof, in an aggregate and anonymous manner (the “Aggregate Data”). Aggregate Data does not identify you, any Subscriber or any individual. You hereby agree that we may collect, reproduce, execute, use, store, archive, modify, enhance, perform, display, distribute, sell, rent, vend, license, or otherwise exploit Aggregate Data for any lawful purpose; provided, however, that such usage does not identify you or your employer. We own and shall retain all right, title, and interest in and to such Aggregate Data.
7. COMMUNICATIONS WITH US; FEEDBACK
Although we encourage you to e-mail us, we do not want you to, and you should not, e-mail us any content that contains confidential information. With respect to all e-mails and communications you send to us, including, but not limited to, feedback, questions, comments, suggestions, and the like, we shall be free to use any ideas, concepts, know-how, or techniques contained in your communications for any purpose whatsoever, including but not limited to, the development, production, and marketing of products and services that incorporate such information without compensation or attribution to you.
8. HOSTING; SUPPORT
DevStride or our contractors shall host the Platform on our or our contractors’ servers. DevStride and/or our contractors shall monitor the Platform to optimize performance of the Platform, and shall use commercially reasonable efforts to minimize any downtime, other than for scheduled maintenance or downtime caused by reasons beyond our reasonable control, including, but not limited to, acts of God, epidemic, pandemic, acts of any governmental body, war, insurrection, sabotage, armed conflict, terrorism, embargo, fire, flood, strike or other labor disturbance, unavailability of or interruption or delay in telecommunications or third-party services, or virus attacks or hackers. We accept support questions via the Platform. Responses to support questions submitted through the Platform are provided during our normal business hours only, unless otherwise provided in your Subscription Agreement, if any.
9. NO WARRANTIES; LIMITATION OF LIABILITY
YOU ACKNOWLEDGE THAT ALTHOUGH THE PLATFORM AND/OR SERVICES, THE DEVSTRIDE CONTENT, AND THE DATA CONTAINED THEREIN, CAN BE USED AS AIDS TO ASSIST YOU IN MAKING INFORMED BUSINESS DECISIONS, THE PLATFORM AND/OR SERVICES, THE DEVSTRIDE CONTENT, AND THE DATA CONTAINED THEREIN, ARE NOT MEANT TO BE SUBSTITUTES FOR LEGAL, BUSINESS, OR INVESTMENT ADVICE OR YOUR EXERCISE OF YOUR OWN INDEPENDENT BUSINESS JUDGMENT. ANY SUCH DECISIONS OR JUDGMENTS ARE MADE AT YOUR SOLE DISCRETION AND ELECTION.
THE PLATFORM AND/OR SERVICES, THE DEVSTRIDE CONTENT, THE DATA, AND ANY OTHER MATERIALS PROVIDED HEREUNDER ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND NEITHER DEVSTRIDE NOR OUR SUPPLIERS OR CONTRACTORS MAKE ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SAME OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT. DEVSTRIDE AND OUR SUPPLIERS AND CONTRACTORS HEREBY DISCLAIM ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. TO THE EXTENT THAT DEVSTRIDE (AND OUR SUPPLIERS AND CONTRACTORS) MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
EXCEPT AS OTHERWISE PROVIDED IN YOUR SUBSCRIPTION AGREEMENT, IF ANY, IN CONNECTION WITH ANY WARRANTY, CONTRACT, OR COMMON LAW TORT CLAIMS: (I) WE AND OUR LICENSORS SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM THE USE OR INABILITY TO ACCESS AND USE THE PLATFORM AND/OR SERVICES OR THE DEVSTRIDE CONTENT, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) ANY DIRECT DAMAGES, NOT ATTRIBUTABLE TO PERSONAL INJURIES, THAT YOU MAY SUFFER AS A RESULT OF YOUR USE OF THE PLATFORM AND/OR SERVICES OR THE DEVSTRIDE CONTENT SHALL BE LIMITED TO $1,000.
SOME JURISDICTIONS, INCLUDING THE STATE OF NEW JERSEY, DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. THEREFORE, SOME OF THE ABOVE LIMITATIONS ON WARRANTIES IN THIS SECTION MAY NOT APPLY TO YOU.
NOTHING IN THIS AGREEMENT SHALL AFFECT ANY NON-WAIVABLE STATUTORY RIGHTS THAT APPLY TO YOU.
10. EXTERNAL SITES; THIRD-PARTY VENDORS
The Platform may contain links to third-party websites (“External Sites”). These links are provided solely as a convenience to you and not as an endorsement by us of such External Sites. The External Sites are developed and provided by others, and you should contact the site administrator or webmaster for those External Sites if you have any concerns regarding such links or any content located on such External Sites. We are not responsible for the content of any linked External Sites or the third-party vendors highlighted on such External Sites, and we do not make any representations regarding the content or accuracy of materials on such External Sites or any such third-party vendors. You should take precautions when downloading files from all websites to protect your computer from viruses and other destructive programs. If you decide to access linked External Sites, you do so at your own risk.
You agree to defend, indemnify, and hold us and our officers, directors, employees, agents, successors, licensees, licensors, and assigns harmless from and against any damages, liabilities, losses, expenses, claims, actions, and/or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from: (i) your breach of this Agreement; (ii) your misuse of the Platform and/or Services or DevStride Content; (iii) your Subscriber Content; and/or (iv) your violation of any third-party rights, including without limitation any copyright, trademark, property, publicity, or privacy right. We reserve the right to assume the exclusive defense and control (at your expense) of any matter that is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting our defense of such matter.
12. COMPLIANCE WITH APPLICABLE LAWS
The Platform is based in the United States. We make no claims concerning whether the DevStride Content may be downloaded, viewed, or be appropriate for use outside of the United States. If you access or use the Platform or DevStride Content from outside of the United States, you do so at your own risk. Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.
We reserve the right, in our sole discretion, to restrict, suspend, or terminate the Agreement and/or your access to all or any part of the Platform and/or the Services, at any time and for any reason without prior notice or liability. We reserve the right to change, suspend, or discontinue all or any part of the Platform and/or the Services at any time without prior notice or liability.
14. DIGITAL MILLENNIUM COPYRIGHT ACT
Reporting Claims of Copyright Infringement
We respect the intellectual property rights of others and attempt to comply with all relevant laws. We will review all claims of copyright infringement received and remove any content deemed to have been posted or distributed in violation of any such laws. Our designated agent under the Digital Millennium Copyright Act (the “Act”) for the receipt of any Notification of Claimed Infringement which may be given under that Act is as follows:
If you believe that your work has been copied on the Platform and/or Services in a way that constitutes copyright infringement, please provide our agent with notice in accordance with the requirements of the Act, including (i) a description of the copyrighted work that has been infringed and the specific location on the Platform and/or Services where such work is located; (ii) a description of the location of the original or an authorized copy of the copyrighted work; (iii) your address, telephone number and e-mail address; (iv) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; (v) a statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and (vi) an electronic or physical signature of the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest.
If you believe that material you posted on the Platform and/or Services was removed or access to it was disabled by mistake or misidentification, you may file a counter-notification with us (a “Counter-Notice”) by submitting written notification to our copyright agent (identified above).
Pursuant to the Act, the Counter-Notice must include substantially the following: (i) your physical or electronic signature; (ii) an identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access disabled; (iii) adequate information by which we can contact you (including your name, postal address, telephone number, and, if available, email address); (iv) a statement under penalty of perjury by you that you have a good faith belief that the material identified above was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and (v) a statement that you will consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or if you reside outside the United States for any judicial district in which the Services may be found) and that you will accept service from the person (or an agent of that person) who provided the Platform and/or Services with the complaint at issue.
The Act allows us to restore the removed content if the party filing the original notice does not file a court action against you within ten business days of receiving the copy of your Counter-Notice.
Please be aware that if you knowingly materially misrepresent that material or activity on the Platform and/or Services was removed or disabled by mistake or misidentification, you may be held liable for damages (including costs and attorneys' fees) under Section 512(f) of the Act.
15. CONTROLLING LAW
The Agreement and any action related thereto will be governed by the laws of the State of Delaware without regard to its conflict of laws provisions.
16. BINDING ARBITRATION
In the event of a dispute arising under or relating to the Agreement, the Platform, or the DevStride Content, (each, a “Dispute”), unless otherwise provided in your Subscription Agreement, such Dispute will be finally and exclusively resolved by binding arbitration governed by the Federal Arbitration Act (“FAA”). NEITHER PARTY SHALL HAVE THE RIGHT TO LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL, EXCEPT EITHER PARTY MAY BRING ITS CLAIM IN ITS LOCAL SMALL CLAIMS COURT, IF PERMITTED BY THAT SMALL CLAIMS COURT RULES AND IF WITHIN SUCH COURT’S JURISDICTION. ARBITRATION IS DIFFERENT FROM COURT, AND DISCOVERY AND APPEAL RIGHTS MAY ALSO BE LIMITED IN ARBITRATION. All disputes will be resolved before a neutral arbitrator selected jointly by the parties, whose decision will be final, except for a limited right of appeal under the FAA. The arbitration shall be commenced and conducted by JAMS pursuant to its then current Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those rules, or, where appropriate, pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. All applicable JAMS’ rules and procedures are available at the JAMS website www.jamsadr.com. Each party will be responsible for paying any JAMS filing, administrative, and arbitrator fees in accordance with JAMS rules. Judgment on the arbitrator’s award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitration may be conducted in person, through the submission of documents, by phone, or online. The parties may litigate in court to compel arbitration, to stay a proceeding pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator. The parties shall cooperate in good faith in the voluntary and informal exchange of all non-privileged documents and other information (including electronically stored information) relevant to the Dispute immediately after commencement of the arbitration. As set forth in Section 18 below, nothing in this Agreement will prevent us from seeking injunctive relief in any court of competent jurisdiction as necessary to protect our proprietary interests.
17. CLASS ACTION WAIVER
You agree that any arbitration or proceeding shall be limited to the Dispute between us and you individually. To the full extent permitted by law, (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any Dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
18. EQUITABLE RELIEF
You acknowledge and agree that in the event of a breach or threatened violation of our intellectual property rights and confidential and proprietary information by you, we will suffer irreparable harm and will therefore be entitled to injunctive relief to enforce this Agreement. We may, without waiving any other remedies under this Agreement, seek from any court having jurisdiction any interim, equitable, provisional, or injunctive relief that is necessary to protect our rights and property pending the outcome of the arbitration referenced above. You hereby irrevocably and unconditionally consent to the personal and subject matter jurisdiction of the federal and state courts in the State of Delaware for purposes of any such action by us.
If the Agreement is terminated in accordance with the termination provision above, such termination shall not affect the validity of the following provisions of this Agreement, which shall remain in full force and effect: “Intellectual Property,” “Communications with Us; Feedback,” “Subscriber Content,” “No Warranties,” “Limitation of Liability,” “Indemnification,” “Compliance with Applicable Laws,” “Termination,” “Binding Arbitration,” “Class Action Waiver,” and “Miscellaneous.”
Our failure to act on or enforce any provision of the Agreement shall not be construed as a waiver of that provision or any other provision in this Agreement. No waiver shall be effective against us unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance. Except as expressly agreed by us and you in writing, this Agreement constitutes the entire Agreement between you and us with respect to the subject matter, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter. The section headings are provided merely for convenience and shall not be given any legal import. This Agreement will inure to the benefit of our successors, assigns, licensees, and sublicensees.
Copyright 2023 DevStride Corp. All rights reserved.