Terms & Conditions
Last Updated: March 21, 2023
THESE TERMS AND CONDITIONS (“TERMS”) GOVERN YOUR USE OF THE REALWORK LABS WEBSITE (“SITE”) AND SERVICE (DEFINED BELOW). THESE TERMS, INCLUDING THE MANDATORY ARBITRATION AND CLASS ACTION WAIVER PROVISIONS SET FORTH IN SECTION 14, ARE LEGALLY BINDING ON YOU, AS WELL AS ANY ENTITY, ORGANIZATION OR INDIVIDUAL ON WHOSE BEHALF YOU USE THE SITE OR SERVICE. IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, DO NOT ACCESS OR OTHERWISE USE THE SITE OR SERVICE. YOUR USE OF THE SITE OR SERVICE CONSTITUTES YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS SET FORTH (A) BELOW, AND/OR (B) IN ANY AND ALL ORDERS ENTERED INTO BETWEEN YOU (OR THE ENTITY YOU REPRESENT) AND REALWORK LABS. YOU AGREE THAT REALWORK LABS MAY (X) MODIFY THE SITE OR SERVICE AT ANY TIME, WITHOUT NOTICE, AND (Y) REVISE THESE TERMS AT ANY TIME, WITH THE ‘LAST UPDATED’ DATE ABOVE SERVING AS NOTICE TO YOU OF SUCH TERMS UPDATE. YOU ARE RESPONSIBLE FOR REGULARLY REVIEWING THESE TERMS. YOUR CONTINUED USE OF THE SITE OR SERVICE AFTER UPDATED TERMS HAVE BEEN POSTED TO THE SITE SHALL CONSTITUTE YOUR CONSENT TO SUCH UPDATED TERMS.
REALWORK LABS INC dba RealWork Labs, (“RealWork Labs” or “We” or “Us,” or in the possessive, “Our”) operates a Service designed to help Our customers optimize their digital marketing return on investment. Our Service is available through the Site, and may become available through mobile apps in the future.
By using the Site or Service, You agree to these Terms and any and all other rules applicable to Your use of the Site or Service (including those contained in Your Order(s)).
You must be at least 18 years of age to use the Site or Service. If You use the Site or Service on behalf of another person or entity (a) all references to “You” or “Your” throughout these Terms or Your Order(s) will include such person or entity, (b) You represent that You are authorized to accept these Terms and execute Orders on such person or entity’s behalf, and (c) in the event You or the person or entity violates these Terms or the terms of an applicable Order, such person or entity agrees to be responsible to Us in accordance with these Terms and such Order, as applicable.
2.1 “Account Owner” is someone who purchases and maintains an active subscription to the Service, for example. In order to use certain aspects of the Service, You will have to register for the Service and create an administrator account (“Owner Account”). When creating Your account for the Service, You agree to provide true, accurate, current and complete information, including payment information. You further agree to maintain and update Your information as needed to keep it true, accurate, current and complete. You are solely responsible for maintaining the confidentiality of Your account and password and for restricting access to Your computer, and You agree to accept responsibility for all activities that occur under Your account or password. If You have reason to believe that Your account is no longer secure (e.g., in the event of a loss, theft or unauthorized disclosure or use of Your ID, password, or any credit, debit or charge card number), You agree to immediately notify Us. You may be liable for the losses incurred by Company or others due to any unauthorized use of Your Owner Account. An Owner Account may authorize such number of employees and/or independent contractors (collectively, “Authorized Users”) as is indicated in the Order to use the Service; provided, however, each Authorized User must agree to abide by these Terms. Other than the Owner Account, Authorized Users are not permitted to make any account changes, including cancellations.
2.2 “Confidential Information” means any and all information provided by You or Us (in such circumstance, “Discloser”) to the other (in such circumstance, “Receiver”), whether orally or in writing, that is designated as confidential. Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to Discloser, or (b) was known to Receiver before receipt from Discloser.
2.3 “Order” means any form or online subscription process by which You agree to subscribe to the Service. Most Orders are completed through Our online payment process.
2.4 “RealWork Labs Content” means any and all information, data, text, messages, software, sound, music, video, photographs, graphics, images, and tags that We incorporate into the Service, including Refined Data.
2.5 “Refined Data” means data generated by the Site or Service, including any data We make available to You during the course of Your use of the Service.
2.6 “Sensitive Information” means (a) credit or debit card numbers, (b) personal financial account information, (c) Social Security numbers, (d) passport numbers, (e) driver’s license numbers or similar forms, (f) unique numeric identifiers, (g) racial or ethnic origin information, (h) physical health or mental health information, or (i) any other employment, financial or health information, including any information which may be subject to regulations, laws or industry standards designed to protect data privacy and security, such as the Health Insurance Portability and Accountability Act or the Payment Card Industry Data Security Standards.
2.7 “Service” means Our web-based applications, tools, services, reports and platforms that (a) You subscribe to under an Order, or (b) We otherwise make available to You in Our discretion, including any ancillary products or services.
2.8 “Third-Party Services” means non-embedded products and professional services that are provided by third parties which may interoperate with or be used in connection with the Service.
2.9 “Third-Party Sites” means third-party websites linked from within the Service.
2.10 “User Content” means all information, messages, text, photos, videos, software and other materials that You create, post, store, share submit or collect via the Site or Service. User Content does not include Refined Data.
2.11 “You” (or in the possessive “Your”) means the individual accessing or otherwise using the Site or Service, as well as any and all persons or entities on whose behalf such individual accesses or uses the Site or Service.
3. BILLING AND FEES
3.1 Registration and Password Protection. Prior to Your gaining access to Service, We will require You to set up an account with a username and password. You shall comply with the procedures specified by RealWork Labs from time to time regarding obtaining and updating passwords for the Site or Service. You hereby assume sole responsibility for the security of passwords issued to You. Passwords are subject to cancellation or suspension by RealWork Labs at any time, including following (a) any misuse of the Site or Service, or (b) re-issuance or reactivation of passwords. You are solely responsible for preventing any third party from obtaining Your password, and You agree to (x) so prevent such third-party obtaining access to Your password and (y) inform RealWork Labs immediately in writing of any actual or potential unauthorized access to a password or to the Site or Service.
3.2 Subscription Terms. RealWork Labs offers a range of Service subscription plans (each, a “Plan”). Each Plan includes a numerical range of user interactions or engagement views (“Events”) and custom messages (“Messages”) that may be recorded by the Service on Your registered web page. You will select Your Plan as part of Your registration for a Service subscription. Each subscription period for a Plan will be based on the subscription period chosen/sold (e.g., annually, bi-annually, quarterly, monthly) in the applicable Order. You may choose to be billed for the Plan annually or in less than annual increments (e.g., monthly or bi-annually), but regardless of Your billing cycle, You are responsible for all subscription fees for the entire subscription period set forth in the applicable Order. Each Order is effective beginning on its applicable effective date and will continue in effect for the initial term length set forth therein (“Initial Term”). Upon expiration of the Initial Term, Your Order and Plan will automatically renew for consecutive periods of equal duration as the Initial Term (each a “Renewal Term”, and collectively with the “Initial Term”, the “Term”). We may accept other means of non-renewal notice (e.g., if You call customer service at 888-966-5196 at least ten (10) days prior to the end of the then-current Initial Term or Renewal Term) in Our sole and reasonable discretion. Text, emails or cancellations requested by a third party will not be accepted. If You cancel Your Plan, You will lose all access to the Service and any data or information stored in Your account upon the expiration of Your final paid Initial Term or Renewal Term, as the case may be.
3.3 Billing Policies, Refunds, Overages, Upgrade and Downgrade Terms. The fees for Your Plan are set forth in the applicable Order and billed in advance of each billing cycle. Fees may be paid via credit card over the phone or in any other manner We deem acceptable in Our sole discretion. You agree that no refunds or credits will be provided for partial or unused months left in the applicable Service subscription if You cancel a Plan prior to the end date of the then-current Initial Term or Renewal Term of the applicable Order. If You upgrade Your Plan level, (x) You will immediately be charged for the increased price of the upgraded Plan, prorated to reflect the remaining duration of the applicable Order’s then-current Initial Term or Renewal Term, and (y) You will be charged the full amount of the then-current rate for such upgraded Plan when the applicable Order next renews. Any discounts applied to an Order’s prior Initial Term or Renewal Term will not apply to the subsequent Renewal Term unless otherwise agreed by Us in writing. Any questions involving upgrades or downgrades to Your Plan can be directed to firstname.lastname@example.org.
3.4 Changes in Fees. If You change to a new Plan (whether at Your election or as otherwise set forth in Section 3.3), You will be charged at the then-current rate for such new Plan.
3.5 Payment of Fees. As an express condition of Your rights to access and use the Service set forth herein or the applicable Order, You shall pay all fees applicable to Your Plan, plus any and all (a) other fees for additional services, and (b) applicable taxes levied in connection with Your use of the Service. Unless otherwise mutually agreed in writing by You and RealWork Labs, We will bill the fees due under Your Plan to the credit card You provide to Us during registration (or to a different credit card if You change Your payment information in the Service). You acknowledge and agree that the amount billed for each Renewal Term may vary due to changes in (x) promotional offers, (y) Your Plan, and (z) applicable taxes. You hereby authorize Us to bill You the amounts corresponding to such changes. You further agree to pay such amounts corresponding to such changes. We reserve the right to deactivate Your access to the Service for failure to pay applicable fees as described in these Terms (including as described in the applicable Order). Unless otherwise stated in writing by RealWork Labs, all fees are stated in United States Dollars.
3.6 Credit Card Payments.
(a) Unless otherwise mutually agreed in writing by You and RealWork Labs, all fees for Your Plan will be billed to Your credit card. You hereby authorize Your card issuer to approve payment of any amounts described herein, in Your Order, or otherwise associated with Your Plan. You further authorize RealWork Labs (or a billing agent acting on Our behalf) to continue charging all such amounts to Your credit card account until You or We cancel or terminate Your Plan and corresponding Order as provided in these Terms (including as may be provided in the applicable Order).
(b) You must provide current, complete and accurate billing and credit card information. You must promptly update all billing information (such as billing address, card number and expiration date) to keep Your account current, complete and accurate. You must promptly contact RealWork Labs if Your credit card is lost or stolen or if You become aware of a potential breach of account security (such as an unauthorized disclosure or use of Your username or password).
(c) In the event that the credit card You provided to Us expires, We reserve the right to charge any renewal or replacement card issued to You to the same extent as the expired card. If payment is not received in full from Your credit card issuer, You agree to pay all amounts due upon demand and in any manner which We may designate in Our sole and reasonable discretion. You agree to pay all costs of collection, including attorney’s fees and costs, on any past due balance. In certain instances, the issuer of Your credit card may charge You a foreign transaction fee or related charges, which You will be responsible to pay. Please check with Your bank and credit card issuer for details.
3.7 Third-Party Payment Processor. You authorize Us to use third parties to process payments. You consent to the disclosure of Your payment information to such third parties.
3.8 Payment Timing. If You are paying by invoice, all amounts invoiced are due and payable immediately upon Your receipt of such invoice unless otherwise specified in the applicable Order. If You are paying by credit card, all amounts are due and payable in advance of Your receipt of access to the Service.
3.9 Past Due Amounts. Amounts not paid within thirty (30) days of the invoice date shall be assessed interest at a monthly rate equal to the lesser of (a) one and one-half percent (1.5%), or (b) the maximum rate allowed by law. In such circumstances, interest accrues starting on the first date the payment was due. Unless otherwise expressly set forth in the applicable Order, all invoices shall be paid in U.S. dollars. If We commence legal proceedings to collect any payment and ultimately prevail in such proceedings, You shall pay Our reasonable attorneys’ fees, court costs and other collection expenses. Except as otherwise expressly set forth in these Terms or the applicable Order, all payment obligations are non-cancelable and all amounts paid are non-refundable. All fees are exclusive of taxes, which We will charge as applicable. You agree to pay any taxes applicable to Your Order or other use of the Service.
4. SERVICE ACCESS AND MODIFICATIONS
During the Term, We will provide You access to use the Service as described in these Terms and the applicable Order. We may modify the Service from time to time in Our sole discretion, including by adding or deleting features and functions. Notwithstanding the foregoing, We will exercise commercially reasonable efforts to not make any changes to the Service that materially reduce the functionality of the Service provided to You during the then-current Initial Term or Renewal Term, as the case may be. In Our sole discretion, We may elect to provide some or all elements of the Service through third-party service providers.
5. CUSTOMER SUPPORT
Service support is available; the type of Service support for which You are eligible will depend on the support tier set forth in the applicable Order. Notwithstanding the foregoing, You Agree that We do not promise or guarantee any specific response or resolution times, Service uptimes, or other service levels.
Receiver shall not share Confidential Information in any manner not expressly permitted under these Terms or the applicable Order. Receiver will: (a) protect the confidentiality of Discloser’s Confidential Information using the same degree of care that it uses with respect to its own confidential information of similar nature, but in no event with less than a commercially reasonable degree of care suitable for the nature of the given Confidential Information, (b) not disclose Discloser’s Confidential Information to any third party (except, with respect to RealWork Labs as Receiver, to Our third-party service providers or as otherwise expressly permitted under these Terms or the applicable Order), and (c) limit access to Discloser’s Confidential Information to Receiver’s employees, contractors, advisors and agents with a need to know such Confidential Information in order for Receiver to perform its obligations or exercise its rights under these Terms or the applicable Order. Upon reasonable prior written notice to Discloser (and where permitted by applicable law), Receiver may disclose Discloser’s Confidential Information as required or ordered under any federal, state or local law, statute, rule, regulation, subpoena or legal process.
7. PROPRIETARY RIGHTS
These Terms govern Your access to and use of the Site and Service. You are not granted a license to any software by these Terms. Subject to Your compliance with these Terms and all terms and conditions contained in an active and applicable Order, You may be entitled to a subscription to the Service. You acknowledge that You have no proprietary interest in or to the Site or Service, including (a) the servers, software or data used by RealWork Labs in the provision of the Service, (b) Refined Data, or (c) RealWork Labs Confidential Information. All right, title and ownership in and to the Site, Service, Refined Data or any software (both in object code and source code format), hardware or know-how which We license, use or develop to provide the Site Service is owned exclusively by RealWork Labs or Our licensors (if any). You may only use Refined Data in connection with Your use of the Service during the Term of Your applicable Order. You agree not to copy, rent, lease, sell, distribute or create derivative works based on the Site, Service or Refined Data in whole or in part, by any means, except as expressly authorized in writing by RealWork Labs. In addition, You agree to strictly comply with all use restrictions contained in these Terms or the applicable Order, including the restrictions set forth in Section 9.2 of these Terms. RealWork Labs, the RealWork Labs logo and other marks that We use from time to time are Our trademarks. The appearance, layout, color scheme and design of the Site and Service are protected trade dress. You may not use any of these without Our prior written permission with respect to each such Use.
8. USER CONTENT
8.1 General. The Site or Service may allow You to create, post, store or share User Content. Except for the license You grant below, You retain all rights in and to Your User Content (as between You and RealWork Labs).
8.2 License to User Content. You hereby grant RealWork Labs and Our subsidiaries and affiliates a perpetual, irrevocable, non-exclusive, royalty-free, worldwide, fully paid, transferable and sublicensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly perform and display Your User Content and any name, username or likeness provided in connection with Your User Content in all media formats and channels now known or later developed without compensation to You. When You post or otherwise share User Content on or through the Site or Service, You understand that such User Content and any associated information (such as Your username or profile photo) may be visible to others.
8.3 User Content Restrictions. You may not create, post, store or share any User Content that violates these Terms or for which You do not have all the rights necessary to grant Us the license described above. You represent and warrant that Your User Content, and Our use of such User Content as permitted by these Terms, will not violate any rights of or cause injury to any person or entity. Although We have no obligation to screen, edit or monitor User Content, We may delete or remove User Content at any time and for any reason with or without notice.
8.4 No Sensitive Information. YOU AGREE NOT TO USE THE SITE OR SERVICE TO COLLECT, STORE, MANAGE OR PROCESS SENSITIVE INFORMATION. REALWORK LABS WILL NOT HAVE ANY LIABILITY WITH RESPECT TO ANY CLAIMS, DAMAGES, LOSSES OR EXPENSES THAT MAY RESULT FROM OR RELATE TO YOUR USE OF THE SITE OR SERVICE TO COLLECT, STORE OR MANAGE SENSITIVE INFORMATION.
9. USE AND LIMITATIONS OF USE
9.1 Acceptable Use. You acknowledge and agree that You will only be entitled to receive a subscription-based right to access and use the Service on a non-exclusive basis pursuant to an active and valid Order with which You are in strict compliance. You agree that You have not received and will not receive any license to the Site, Service or any other software or other materials used or made available by RealWork Labs. You are solely responsible for (a) making all arrangements necessary for You to have access to the Site and Service, and (b) ensuring that all persons who may access the Site or Service through Your Internet connection are aware of, and agree to comply with, these Terms and comply with them. You agree to use the Site and Service only for lawful purposes and in strict compliance with these Terms and all terms set forth in the applicable Order. Without limiting the foregoing, in the event that the Service includes access to tools or features that enable You to send messages to third parties, You agree that You will abide by all applicable laws, rules and regulations in connection with Your use of such tools and features, including laws and regulations applicable to commercial SMS messages and commercial email communications. You agree that You are responsible for the acts and omissions of all persons who access and/or use the Site or Service through Your account and/or on Your behalf to the same extent as if such acts and omissions were Your own.
9.2 Prohibited and Unauthorized Use.
(a) You will not violate any applicable law, contract, intellectual property right or other third-party right or commit a tort, and You are solely responsible for Your conduct while using the Site or Service. Without limiting the foregoing, You will not:
engage in any harassing, threatening, intimidating, predatory or stalking conduct;
use or attempt to use another user’s account without authorization from that user and RealWork Labs;
impersonate or post on behalf or any person or entity or otherwise misrepresent Your affiliation with a person or entity;
sell or resell the Site or Service or otherwise use or make available the Site or Service for the benefit of any third party;
copy, reproduce, distribute, publicly perform or publicly display all or portions of the Site or Service;
modify the Site or Service, remove any proprietary rights notices or markings, or otherwise make any derivative works based upon the Site or Service;
use the Site or Service other than for their intended purpose;
use the Site or Service in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying the Site or Service;
use the Site or Service in any manner that could damage, disable, overburden or impair the functioning of the Site or Service;
reverse engineer any aspect of the Site or Service;
do anything that might result in the discovery of source code or bypassing or circumvention of measures employed to prevent or limit access to any part of the Site or Service;
use any data mining, robots, spiders, screen scrapers or similar data gathering or extraction methods designed to scrape or extract data from the Site or Service;
develop or use any applications that interact with the Site or Service without Our prior written consent;
send, distribute or post spam, unsolicited or bulk commercial electronic communications, chain letters, or pyramid schemes;
bypass or ignore instructions contained in any robots.txt or similar file We issue with respect to the Site or Service; or
use the Site or Service for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates these Terms or the terms of an Order;
use or share access to the Site or Service in connection with Your or any third party’s development of a competing site, service or product.
(b) You may post or otherwise share only User Content that is nonconfidential and that You have all necessary rights to disclose. You may not create, post, store or share any User Content that:
is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory or fraudulent;
would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability or violate any local, state, national or international law;
may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of RealWork Labs or any third party;
contains or depicts any statements, remarks or claims that do not reflect Your honest views and experiences;
impersonates, or misrepresents Your affiliation with, any person or entity;
contains any unsolicited promotions, political campaigning, advertising or solicitations;
contains any private or personal information of a third party without such third party’s prior written consent;
contains any viruses, corrupted data or other harmful, disruptive or destructive files or content; or
in Our sole judgment, is objectionable, restricts or inhibits any other person from using or enjoying the Site or Service, or may expose RealWork Labs or others to any harm or liability of any type.
(c) Enforcement of this Section 9.2 is solely at RealWork Labs’ discretion, and failure to enforce this Section 9.2 in some instances does not constitute a waiver of Our right to enforce it in other instances. In addition, this Section 9.2 does not create any private right of action on the part of any third party or any reasonable expectation that the Site or Service will not contain any content that is prohibited by this Section 9.2.
10. THIRD-PARTY SITES AND SERVICES
You agree to indemnify, hold harmless, and, if requested by Us, defend Us, Our affiliates, licensors, service providers, successors and assigns, and Our and each of the foregoing’s respective officers, directors, employees, contractors and agents (collectively, “Indemnitees”) from and against any and all claims, liabilities, damages, judgments, awards, costs, expenses, fees (including reasonable attorneys’ fees and court costs) or losses (collectively, “Claims”) arising out of or relating to (a) Your violation of these Terms or the Terms of any Order, (b) Your use of the Site or Service, (c) Your User Content, (d) Your Feedback, (e) Your violation, misappropriation or infringement of any rights of another (including intellectual property rights or privacy rights), (f) Your violation of applicable law, (g) Your use of Third-Party Sites or Third-Party Services, (h) Your conduct in connection with the Site or Service, or (i) any unauthorized use of the Site or Service by any other person using Your account information. You agree to (x) immediately notify RealWork Labs of any third-party Claims of which You are aware, (y) cooperate with Indemnitees in connection with the defense of any third-party Claims and (z) pay all fees, costs and expenses associated the defense of such Claims. You also agree that, at RealWork Labs’ option, RealWork Labs or certain Indemnitees designated by RealWork Labs will control the defense or settlement of any third-party Claims.
12. DISCLAIMERS; LIMITATIONS OF LIABILITY
12.1 Disclaimer of Warranties. REALWORK LABS AND OUR AFFILIATES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE SITE, SERVICE, DATA MADE AVAILABLE FROM THE SERVICE OR REALWORK LABS CONTENT. APPLICATION PROGRAMMING INTERFACES (APIs) MAY NOT BE AVAILABLE AT ALL TIMES. TO THE EXTENT PERMITTED BY LAW, THE SITE AND SERVICE ARE EACH PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. REALWORK LABS FURTHER DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, INCLUDING WITH REGARD TO THE SITE, SERVICE AND REALWORK LABS CONTENT, AND SPECIFICALLY INCLUDING ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, NON-INTERFERENCE, SYSTEM INTEGRATION OR ACCURACY. NO WARRANTIES ARE IMPLIED ON THE BASIS OF TRADE USAGE, COURSE OF PERFORMANCE OR COURSE OF DEALING. ALTHOUGH WE EXERCISE REASONABLE EFFORTS TO MAKE YOUR USE OF THE SITE AND SERVICE SAFE, WE CANNOT AND DO NOT REPRESENT OR WARRANT THAT THE SITE OR SERVICE ARE OR WILL BE FREE OF VIRUSES OR OTHER HARMFUL CODE OR COMPONENTS. YOU ASSUME THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SITE AND SERVICE.
12.2 No Indirect Damages. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL REALWORK LABS OR ANY INDEMNITEES (AS THAT TERM IS DEFINED IN SECTION 11) BE LIABLE UNDER ANY THEORY—WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, WARRANTY OR OTHERWISE—FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS OR BUSINESS OPPORTUNITIES, EVEN IF REALWORK LABS OR ANY INDEMNITEE(S) HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12.3 Limitation of Liability. THE TOTAL AGGREGATE LIABILITY OF REALWORK LABS AND THE OTHER INDEMNITEES FOR ANY CLAIM ARISING OUT OF OR RELATING TO THESE TERMS, YOUR ORDERS, THE SITE OR SERVICE, REGARDLESS OF THE FORM OF THE ACTION, IS AND WILL BE LIMITED TO THE LESSER OF (A) FIVE THOUSAND DOLLARS, OR (B) THE TOTAL AMOUNTS YOU HAVE ACTUALLY PAID PURSUANT TO THE APPLICABLE ORDER DURING THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT(S) GIVING RISE TO SUCH CLAIM.
12.4 Exclusions. THE LIMITATIONS SET FORTH ABOVE IN THIS SECTION 12 WILL NOT APPLY WITH RESPECT TO ANY MATTERS IN WHICH LIABILITY CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SUCH LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
12.5 Third Party Products. REALWORK LABS DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY SITES AND THIRD-PARTY SERVICES THAT YOU MAY USE. REALWORK LABS’ LICENSORS SHALL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT. YOU UNDERSTAND AND AGREE THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, REALWORK LABS WOULD NOT PROVIDE YOU WITH ACCESS TO THE SITE OR SERVICE.
13. TERMINATION, SUSPENSION AND EXPIRATION
13.1 Termination for Cause. You and RealWork Labs may each terminate an active Order for cause: (a) upon ten (10) days’ written notice to the other party of such other party’s material breach if such breach remains uncured at the expiration of such period, or (b) immediately upon written notice if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, liquidation or assignment for the benefit of creditors. Other than as expressly set forth in these Terms or the terms of the applicable Order, You may not otherwise terminate an Order prior to the end of its then-current Initial Term or Renewal Term, as the case may be.
13.2 Suspension for Prohibited Acts. In addition to any other rights or remedies We may otherwise have under these Terms or the terms of the applicable Order, We may immediately suspend Your access to the Service without notice for any: (a) use or threatened use of the Service in a way that violates or would violate these Terms or applicable local, state, federal or foreign laws or regulations; or (b) actual or threatened posting or uploading of any User Content or other material that (i) infringes or is alleged to infringe on the copyright or trademark rights of any person or entity, or (ii) otherwise violates these Terms or applicable local, state, federal or foreign laws or regulations.
13.3 Suspension for Non-Payment. In addition to any other rights or remedies We may otherwise have under these Terms or the terms of the applicable Order, We may immediately suspend Your access to all or any part of the Service in the event of non-payment of any amount that is past due. If Your rights to access the Service are suspended for non-payment, We may charge a reactivation fee to reinstate Your access to the Service.
13.4 Suspension for Present Harm. If Your website on, or use of, the Service: (a) is being subjected to denial of service attacks or other disruptive activity, (b) is being used to engage in denial of service attacks or other disruptive activity, (c) is creating a security vulnerability for the Site, Service or others, (d) is consuming excessive bandwidth as determined in Our sole discretion, or (e) is otherwise causing harm to Us or others, then, in addition to any other rights or remedies We may otherwise have under these Terms or the terms of the applicable Order, We may immediately suspend Your access to the Service in whole or in part. We will exercise commercially reasonable efforts to limit any such suspension to the affected portion of the Service and promptly resolve the issues causing such suspension.
13.5 Effect of Termination or Expiration. Upon termination or expiration of an Order, You shall immediately stop all use of the Service, and if We request, You will provide Us written confirmation that You have discontinued all use of the Refined Data. If We terminate an Order for cause, You shall immediately pay all unpaid fees that would have been due and payable through the end of the then-current Initial Term or Renewal Term, as the case may be, but for such early termination for cause. You acknowledge that We retain all rights granted by these Terms to continue use of User Content upon termination or expiration of Your Order(s), but We have no obligation to back up or store any User Content except as expressly set forth below. If You have (a) timely paid all fees owed to Us, and (b) made a written request within ten (10) days after termination or expiration of the applicable Order’s then-current Initial Term or Renewal Term, We will either (x) provide You with temporary access to the Service to retrieve User Content, or (y) provide You with copies of all User Content then in Our possession or control. We may withhold access to User Content until You pay any fees owed to Us. Notwithstanding anything to the contrary, following ten (10) days after termination or expiration of the applicable Order’s then-current Initial Term or Renewal Term, We will have no further obligation to maintain or provide any User Content and may, in Our sole discretion and unless legally prohibited, delete any and all User Content in Our systems or control.
14. DISPUTE RESOLUTION; BINDING ARBITRATION
PLEASE READ THIS SECTION 14 CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH REALWORK LABS AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US, UNLESS YOU OPT OUT OF ARBITRATION BY FOLLOWING THE INSTRUCTIONS SET FORTH BELOW. NO CLASS OR REPRESENTATIVE ACTIONS OR ARBITRATIONS ARE ALLOWED UNDER THIS ARBITRATION PROVISION. IN ADDITION, ARBITRATION PRECLUDES YOU FROM SUING IN COURT OR HAVING A JURY TRIAL.
14.1 No Representative Actions. You and RealWork Labs each agree that (a) any dispute, action, claim or cause of action arising out of or related to these Terms, an Order, the Site or the Service is (a) personal to You and RealWork Labs, (b) will be resolved solely through individual action, and (c) will not be brought as a class arbitration, class action or any other type of representative proceeding.
14.2 Arbitration of Disputes. Except for small claims disputes in which You or RealWork Labs seeks to bring an individual action in small claims court or disputes in which You or RealWork Labs seeks injunctive or other equitable relief for the alleged infringement or misappropriation of intellectual property, You and RealWork Labs each waive all rights to (a) a jury trial, and (b) have any other dispute arising out of or related to these Terms, an Order, the Site or the Service, including claims related to privacy and data security, (collectively, “Disputes”) resolved in court. Instead, for any Dispute that You have against RealWork Labs, You agree to first contact RealWork Labs and attempt to resolve the Dispute informally by sending a written notice (“Notice”) to RealWork Labs by email at email@example.com or by certified mail addressed to RealWork Labs at 3300 N. Interstate 35, Suite 700, Austin, TX 78705, Attn: Legal Department. The Notice must (x) include Your name, residence address, email address and telephone number, (y) describe the nature and basis of the Dispute, and (z) set forth the specific relief sought. Our notice to You will be similar in form to that described above. If You and RealWork Labs cannot reach an agreement to resolve the Dispute within thirty (30) days after such Notice is received, then either party may submit the Dispute to binding arbitration administered by JAMS or, under the limited circumstances set forth above, in court. All Disputes submitted to JAMS will be resolved through confidential, binding arbitration before one arbitrator. Arbitration proceedings will be held in Travis County, Texas. You and RealWork Labs agree that Disputes will be held in accordance with the JAMS Streamlined Arbitration Rules and Procedures (“JAMS Rules”). The most recent version of the JAMS Rules are available on the JAMS website and are hereby incorporated into these Terms by reference. You either acknowledge and agree that You have read and understand the JAMS Rules or waive Your opportunity to read the JAMS Rules and waive any claim that the JAMS Rules are unfair or should not apply for any reason.
14.3 You and RealWork Labs agree that these Terms affect interstate commerce and that the enforceability of this Section 14 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the “FAA”), to the maximum extent permitted by applicable law. As limited by the FAA, these Terms and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any Dispute and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability. The arbitrator may conduct only an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.
14.4 The arbitration will allow for the discovery or exchange of non-privileged information relevant to the Dispute. The arbitrator, RealWork Labs and You will maintain the confidentiality of any arbitration proceedings, judgments and awards, including information gathered, prepared and presented for purposes of the arbitration or related to the Dispute(s) therein. The arbitrator will have the authority to make appropriate rulings to safeguard confidentiality, unless the law provides to the contrary. The duty of confidentiality does not apply to the extent that disclosure is necessary to prepare for or conduct the arbitration hearing on the merits, in connection with a court application for a preliminary remedy or in connection with a judicial challenge to an arbitration award or its enforcement, or to the extent that disclosure is otherwise required by law or judicial decision.
14.5 For any arbitration You initiate, You will pay the filing fee (up to a maximum of $1,000 if You are a consumer), and the parties will equally share responsibility for the remaining JAMS fees and costs. For any arbitration initiated by RealWork Labs, RealWork Labs will pay all JAMS fees and costs. The state or federal courts of the State of Texas and the United States sitting in Travis County, Texas have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.
14.6 Section 15.5 of these Terms applies to any and all Disputes You may bring against RealWork Labs.
14.7 You have the right to opt out of binding arbitration within thirty (30) days of the date You first accepted the terms of this Section 14 by contacting Us at firstname.lastname@example.org. In order to be effective, the opt-out notice must include Your full name and address and clearly indicate Your intent to opt out of binding arbitration. By opting out of binding arbitration, You are agreeing to resolve Disputes in accordance with Section 15.15 below.
14.8 If any portion of this Section 14 is found to be unenforceable or unlawful for any reason, (a) the unenforceable or unlawful provision shall be severed from these Terms; (b) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of this Section 14 or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 14; and (c) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 14 is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 14 will be enforceable.
15.1 Modifications. We may update or modify these Terms, in whole or in part, at any time and in Our sole discretion. If We update or change these Terms, We will notify You by posting the updated Terms at www.realworklabs.com/terms. Such updated Terms will become effective and binding on You the next business day after they are posted. When We change these Terms, the “Last Updated” date above will be updated to reflect the date of the most recent version. We strongly encourage You to periodically review these Terms. If You do not agree with any update or modification to these Terms, You must immediately cease using the Site and Service.
15.2 No Waiver. No RealWork Labs delay or failure in exercising any right or remedy will constitute a waiver of such right or remedy or any other right or remedy. RealWork Labs’ waiver on one occasion will not constitute a waiver of any right or remedy on any future occasion.
15.3 Force Majeure. RealWork Labs will not be responsible for any failure or delay in performance caused, in whole or in part, by: (a) an act of war, hostility or sabotage; (b) an act of God; (c) electrical, Internet or telecommunication outage not caused by RealWork Labs; (d) government restrictions; (e) epidemics; or (f) other event outside Our reasonable control. We will use commercially reasonable efforts to mitigate the adverse effects of a force majeure event.
15.4 Publicity. We may add Your name and Company logo to Our customer list and website.
15.5 Actions Permitted. Any action, suit or other claim brought by You in relation to (a) these Terms, (b) an Order, or (c) Your use of the Site or Service shall, in each case, be brought within one (1) year of the first events giving rise to such action, suit or claim. You hereby waive any and all rights You may have to assert such an action, suit or claim after such one (1) year period has expired.
15.6 Compliance with Laws. We will exercise commercially reasonable efforts to comply with all U.S. state and federal laws applicable to Our provision of the Site and Service in general (i.e., without regard to Your specific intended use of the Site or Service). We reserve the right at all times to disclose any information, including User Content, as We deem reasonably necessary or appropriate to satisfy any law, regulation, legal process or governmental request. You shall comply with all laws, rules and regulations applicable to Your use of the Site or Service, including any applicable export laws. For the avoidance of doubt, You shall comply with all laws related to the recording of phone calls and ensure all proper consent to record is obtained prior to making any such recording. RealWork Labs controls and operates the Site and Service from its office in Texas and makes no representation that the Site, Service or any other materials are appropriate or will be available for use in locations other than the United States. If You use the Site or Service from outside the United States, You are entirely responsible for compliance with applicable local laws, including the export and import regulations of other countries in relation to the materials. Notwithstanding anything to the contrary, You agree that We may process, transfer and store information about You in the United States; if You reside or are otherwise based outside the United States, You acknowledge and agree that You may not have the same rights and protections under United States laws and regulations as You do under the laws and regulations of foreign jurisdiction(s) where You reside or are otherwise based.
15.7 Export Control. You shall comply with all sanctions programs administered by the Office of Foreign Assets Control (OFAC) of the U.S. Department of the Treasury. You shall not, directly or indirectly, export, re-export or otherwise transfer the Service, or any rights You may have to use the Service, to prohibited countries or individuals.
15.8 Severability. If any part of this Agreement or an Order is determined to be invalid or unenforceable by applicable law, rule or regulation, then (a) the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision, and (b) the remainder of this Agreement will continue in effect.
15.9 Entire Agreement. Collectively with any Order(s), these Terms constitute the entire agreement between You and RealWork Labs with respect to the subject matter hereof and supersede any and all other proposals and agreements, including any prior or contemporaneous negotiations, discussions or agreements, whether electronic, oral or written, between You and RealWork Labs. We object to and reject any additional or different terms proposed by You, including those which may be contained in Your purchase order, acceptance or website. Your obligations under these Terms or any Order are not conditioned on Our (a) delivery of any future functionality or features of the Service, or (b) fulfillment of any oral or written promises or other comments regarding future functionality or features of the Service.
15.10 Precedence. In the event of a conflict between these Terms and an Order, these Terms shall control unless the Order expressly references the conflicting provision of these Terms and clearly indicates the intent to supersede such provision.
15.11 Assignment. You shall not assign or transfer these Terms or any Order (including any assignment or transfer by reason of merger, reorganization, sale of all or substantially all of Your assets, change of control or operation of law) without Our prior written consent. Upon notice to You, We may assign these Terms or any Order to any affiliate or other third party (including in the event of merger, acquisition, reorganization, sale of all or substantially all of Our assets, change of control or operation of law).
15.12 No Third-Party Beneficiaries. Notwithstanding anything to the contrary, nothing in these Terms or any Order, express or implied, is intended to or shall confer upon any third-party person or entity any right, benefit or remedy of any nature whatsoever.
15.13 Authority. Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms.
15.14 Survival. The following Sections in these Terms shall survive the expiration or termination of these Terms (as applicable to You) or any Orders: 1 (Definitions), 3 (Billing and Fees), 6 (Confidentiality), 7 (Proprietary Rights), 8 (User Content), 9 (Use and Limitations of Use), 10 (Third-Party Sites and Services), 11 (Indemnification), 12 (Disclaimers; Limitations of Liability), 13 (Termination, Suspension and Expiration), 14 (Dispute Resolution; Binding Arbitration) and 15 (General).
15.15 Governing Law; Venue. These Terms shall be governed by Texas law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction. Solely to the extent these Terms or applicable United States federal or Texas state law dictate that any of the following are not subject to Section 14, all disputes, actions, claims or causes of action related to these Terms, an Order, the Site or the Service shall be brought only in the federal or state courts located in Travis County, Texas. If any provision of these Terms is held by a court of competent jurisdiction to be contrary to law, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the parties, with all other provisions remaining in full force and effect.
15.16 Independent Contractors. You and RealWork Labs are independent contractors. These Terms do not create, nor are they intended to create, any joint venture, partnership, employment or agency relationship between You and RealWork Labs.
15.17 Feedback. You may voluntarily post, submit or otherwise communicate to Us any questions, comments, suggestions, ideas, original or creative materials or other information about RealWork Labs or Our Site or Service (collectively, “Feedback”). You understand and agree that We may use such Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to You, including to develop, copy, publish or improve the Site or Service in Our sole discretion. Notwithstanding anything to the contrary, You understand that We may treat Feedback as nonconfidential.
15.18 Headings; Interpretation. The headings in these Terms are for reference only and do not affect the interpretation of these Terms. The words “include,” “includes” and “including” are deemed to be followed by the words “without limitation”. The word “or” is not exclusive. You agree that these Terms are intended to be construed without regard to any presumption or rule requiring construction or interpretation against RealWork Labs by virtue of RealWork Labs having drafted these Terms.