Last Updated: March 14, 2018
Thank you for your interest in LiquidPlanner. This Terms of Service agreement (“Agreement”) constitutes a binding agreement between LiquidPlanner, Inc. (“LiquidPlanner,” “we,” “us” or “our”), and you or the company or legal entity you represent (“You” or “Customer”) and governs the access to and use of the Sites (as defined in Section 1) and the Hosted Services (as defined in Section 1) by You and your Workspace Members (as defined in Section 1). This Agreement is effective on the date of your acceptance (“Effective Date”). This Agreement does not alter in any way the terms or conditions of any other agreement You may have with LiquidPlanner regarding any services, products or otherwise.
By registering for a LiquidPlanner account, purchasing a Subscription Plan (as defined in Section 1) or accessing and using the Hosted Services, You agree to be bound by this Agreement and all terms incorporated by reference. If You are using the Hosted Services as a representative of a company or other legal entity, You represent and warrant that You are authorized to bind such company or entity to this Agreement, in which case the terms “You” and “your” will also refer to such company or entity. If You are using the Hosted Services as a Workspace Member, the terms of this Agreement that apply only to the individual or entity who administers and manages the Workspace will not apply to You. If You do not agree to all of the term applicable to You under this Agreement, do not access or use the Sites or Hosted Services.
Unless expressly stated otherwise by LiquidPlanner, any new features, new services, enhancements or modifications to the Sites or Hosted Services implemented after your initial access shall be subject to this Agreement. LiquidPlanner reserves the right, at its sole discretion, to revise and update any part of this Agreement at any time. It is your responsibility to check this Agreement periodically for changes. Your continued use of or access of the Sites or Hosted Services following the posting of any changes to this Agreement constitutes acceptance of those changes.
Section 1. Definitions
1.1. “Applicable Laws” means applicable federal, state, regional, local or foreign laws, regulations, rules, codes, judgments and orders.
1.2. “Billing Period” means the recurring billing period during which You will be charged the Fees throughout the term of this Agreement.
1.3. “Customer Content” means the documents, files, folders, information, data, text, photos, videos, graphics and other items, content and materials created, uploaded, posted or stored on the Workspace or the Sites by You or your Workspace Members.
1.4. “Documentation” means the user guides, manuals, videos, tutorials, webinars and other information, documentation and materials made available by LiquidPlanner.
1.5. “Feedback” means the questions, comments, suggestions, feedback, ideas, plans, notes, drawings, original or creative materials or other information or materials about LiquidPlanner, the Sites, Hosted Services or Documentation that You or your Workspace Members submit to LiquidPlanner.
1.6. “Fees” means the fees for your Subscription Plan, together with any seat fees for your Workspace Members and any other fees applicable to your use of the Hosted Services.
1.7. “Hosted Services” means the project management applications, services, tools, features and functionality made available through the Sites, including associated hosting, cloud storage and data processing services. The Hosted Services include the Workspace.
1.8. “Site Materials” means all content, information and other materials contained in the Sites, Hosted Services and Documentation, including the LiquidPlanner logo and all designs, text, graphics, pictures, information, data, software, sound files and other files, and the selection and arrangement of any of the foregoing.
1.9. “Sites” means, collectively, the LiquidPlanner websites and mobile applications.
1.10. “Subscription Plan” means the subscription plan You select and subscribe to pursuant to this Agreement, together with all additional seats You purchase for your Workspace Members.
1.11. “User Accounts” means the user accounts created by Workspace Members after such Workspace Members receive an invitation to join the Workspace from You. Each User Account is linked to a unique email address of a Workspace Member and, once created, may be used by the Workspace Member to access and use the Workspace and the Hosted Services.
1.12. “Workspace” means the private LiquidPlanner workspace on the Hosted Services dedicated for use by You and your Workspace Members. The Workspace is administered and managed by You via your Workspace Account.
1.13. “Workspace Account” means your administrative workspace account that allows You to administer, manage and use the Workspace. The Workspace Account is linked to your unique email address.
1.14. “Workspace Members” means the individuals who You authorize to create a User Account and invite to join, access and use the Workspace and the Hosted Services.
Section 3. Free Trials
3.1. Registration. From time to time, we may offer a free trial of the Hosted Services that will allow You to access and use certain features and functionalities of the Hosted Services on a trial basis, free of charge, for a limited period of time (“Free Trial”). If You register for a Free Trial, this Agreement and any additional terms and conditions to which You agree during the registration process for your Free Trial will govern your access to and use of the Hosted Services during your Free Trial period. Any additional terms and conditions applicable to your Free Trial are incorporated by reference into this Agreement.
3.2. Free Trial Period. When You register for a Free Trial, the term of your Free Trial will continue until the earlier of (a) the end of the Free Trial period for which You registered and (b) the date after You register for your Free Trial on which You purchase a Subscription Plan to the Hosted Services.
3.3. Availability of Customer Content. You acknowledge and agree that any Customer Content that You create, upload, post or store on the Workspace or on the Sites during your Free Trial may not be available to You after the date on which your Free Trial expires, unless You purchase a Subscription Plan within 30 days of the expiration of your Free Trial that includes at least equivalent Hosted Services as those provided during your Free Trial. If You purchase a Subscription Plan that offers different features or functionalities than those provided during your Free Trial, you may lose access to certain features and functionalities of the Hosted Services that were available to You during your Free Trial. You may export certain Customer Content that You create, upload, post or store on the Workspace or on the Sites during your Free Trial prior to the date on which your Free Trial expires, or as otherwise permitted by us. We reserve the right to permanently delete the Customer Content that You create, upload, post or store on the Workspace or on the Sites during your Free Trial after 30 days following the expiration of your Free Trial.
3.4. Disclaimer. NOTWITHSTANDING SECTION 10 OR ANYTHING TO THE CONTRARY IN THIS AGREEMENT, THE HOSTED SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS DURING THE FREE TRIAL, WITH ALL FAULTS, DEFECTS AND ERRORS AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. LIQUIDPLANNER HEREBY SPECIFICALLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SITES, HOSTED SERVICES, DOCUMENTATION, SITE MATERIALS AND CUSTOMER CONTENT AND ANY OTHER MATTERS UNDER THIS AGREEMENT IN CONNECTION WITH YOUR USE OF THE HOSTED SERVICES DURING YOUR FREE TRIAL.
Section 4. Hosted Services
4.1. Services. LiquidPlanner will make the Hosted Services included in the Subscription Plan available to You and your Workspace Members pursuant to this Agreement.
4.2. License to the Hosted Services. Subject to the terms and conditions of this Agreement, LiquidPlanner grants You a limited, nonexclusive, nontransferable, non-sublicensable license to access and use the Hosted Services included in your Subscription Plan solely for your internal use in the regular course of your business. This license includes the right for You to permit your Workspace Members to access and use the Workspace and the Hosted Services pursuant to your Subscription Plan. The maximum number of Workspace Members permitted to access and use the Workspace may not exceed the number of Workspace Member seats included in your Subscription Plan or otherwise purchased by You.
4.3. Documentation. LiquidPlanner may make certain Documentation available on the Sites or the Hosted Services. You and your Workspace Members may use the Documentation solely in connection with your use of the Hosted Services pursuant to this Agreement.
4.4. Restrictions and Limitations. Neither You nor your Workspace Members may use the Hosted Services or Documentation in any manner or for any purpose other than as expressly permitted in this Agreement. Without limiting the foregoing, the rights granted to You and your Workspace Members in Sections 4.2 and 4.3 do not include or authorize You or your Workspace Members to: (a) enable any third party to access or use the Workspace or the Hosted Services; (b) modify or create any derivative work based upon any part of the Sites, Hosted Services, Documentation or Site Materials; (c) distribute, copy, license, rent or sell any part of the Sites, Hosted Services, Documentation or Site Materials to any third party; (d) grant any sublicense or other rights to the Hosted Services to any third party; (e) reverse engineer, disassemble or decompile all or any portion of, or attempt to discover or recreate the source code for, the Sites, Hosted Services, Documentation or Site Materials; (f) use any data mining, robots or similar data gathering or extraction methods; (g) download (other than the page caching) of any part of the Sites, Hosted Services, Documentation or Site Materials, or any information contained therein, except as expressly permitted on the Hosted Services; (h) remove, obscure or alter any proprietary rights notices related to the Sites, Hosted Services, Documentation or Site Materials; (i) engage in or permit any infringing or unlawful activities involving the Sites, Hosted Services, Documentation or Site Materials; (j) develop a product or service competitive with the Hosted Services; or (k) engage in or permit any use, reproduction, distribution, disposition, possession, disclosure, sale or other activity involving any part of the Sites, Hosted Services, Documentation or Site Materials that is not expressly authorized under this Agreement or otherwise in writing by LiquidPlanner.
4.5. Professional Services. LiquidPlanner may provide implementation, training, consulting or other professional services to You as may be agreed upon by You and LiquidPlanner from time to time during the term of this Agreement and pursuant to a separate written agreement entered into and signed by both parties.
Section 5. Use of the Hosted Services
5.1. Provision of the Hosted Services. LiquidPlanner will (a) provide You with technical and other support services for the Hosted Services in accordance with the support package included in your Subscription Plan or otherwise purchased by You and as further described on our Pricing page; and (b) use commercially reasonable efforts to make the Hosted Services available to You in accordance with our Service Level Agreement, except for scheduled downtime and any unavailability caused by circumstances beyond the reasonable control of LiquidPlanner such as acts of God, floods, fires, earthquakes or other natural disasters, acts of terror, civil disturbances, Internet service provider failures or delays, or failures or delays caused by issues with the facilities, equipment or services maintained by You and necessary for your access to and use of the Hosted Services.
5.2. Your Responsibilities. You and your Workspace Members will be responsible for (a) ensuring that only You and your Workspace Members are permitted to access and use the Workspace; (b) ensuring that all access to and use of the Hosted Services by You and your Workspace Members complies with this Agreement; (c) all Customer Content; (d) all actions taken via the Workspace Account and the User Accounts on the Workspace and the Hosted Services and the security of all user credentials associated with the Workspace Account and User Accounts; and (e) providing, installing and maintaining, at your own expense, any and all equipment, facilities and services necessary for You and your Workspace Members to access and use the Hosted Services.
5.3. Customer Content. You and your Workspace Members may create, upload, post and store Customer Content on the Workspace, which may be viewable by You and other Workspace Members. You and each of your Workspace Members will not create, upload, post or store any Customer Content that (a) may create any liability, violate any Applicable Laws or result in any harm or injury to LiquidPlanner or any third party; (b) involves the publication of any material or content that is false, defamatory, untruthful, unlawful, harassing or obscene; (c) violates any privacy rights of any third party or promotes bigotry, racism, hatred or harm; (d) constitutes an infringement of any intellectual property or proprietary rights of any third party; or (e) contains any software viruses, corrupted data or other harmful, malicious, disruptive or destructive files or content. In addition to the other rights afforded to LiquidPlanner under this Agreement, LiquidPlanner reserves the right, but has no obligation, to take remedial action if any Customer Content materially violates any of the terms of this Agreement, which may include the removal or disablement of access to such Customer Content, without any liability to You or any of your Workspace Members.
5.4. Customer Conduct. In connection with access to and use of the Hosted Services, You and each of your Workspace Members will not (a) engage in any activities that could create any liability, violate any Applicable Laws or result in any harm or injury to LiquidPlanner or any third party; (b) attempt to circumvent any content-filtering techniques or security measures LiquidPlanner employs, or attempt to access any features or areas of the Sites or Hosted Services that You and your Workspace Members are not authorized to access; (c) engage in any unlawful, harassing, intimidating, predatory or objectionable conduct on the Hosted Services; (d) develop any third-party applications or services that interact with the Sites or the Hosted Services without LiquidPlanner’s prior written consent; (e) use the Sites or the Hosted Services for any illegal or unauthorized purpose or engage in, encourage or promote any activity that violates the terms or conditions of this Agreement; (f) infringe or violate any intellectual property or proprietary rights of any third party; (g) create, upload, post or store any Customer Content that contains any software viruses, corrupted data or other harmful, malicious, disruptive or destructive files or content on the Hosted Services; or (h) create, upload, post or store any Customer Content that contains any private or personal information of a third party without such third party’s consent.
5.5. Feedback. You and your Workspace Members may submit Feedback to LiquidPlanner at any time. Feedback, whether submitted through the Sites or the Hosted Services or otherwise, is non-confidential. LiquidPlanner will own all rights in and to the Feedback, including all intellectual property rights, and will be entitled to the use such Feedback for any purpose, without acknowledgment or compensation to You or your Workspace Members.
5.6. General Areas of the Sites. You and each of your Workspace Members agrees that any Customer Content that is created, uploaded, posted or stored on the Workspace may be viewable by You and other Workspace Members. If You or any of your Workspace Members use any areas of the Sites that are publicly accessible and upload or post any Customer Content to such areas, You and your Workspace Members understand that such Customer Content may be viewable by the public. You will be solely responsible for any uploading or posting of Customer Content in any publicly-accessible areas of the Sites by You or any of your Workspace Members.
Section 6. Fees and Payment Terms
6.1. Fees. You will pay all Fees to LiquidPlanner for the Hosted Services. All Fees are payable in United States dollars. Information regarding the Fees and your Subscription Plan are accessible via the Billing Summary located in the Settings section of your Workspace Account. Following the Effective Date, You may manage or upgrade your Subscription Plan (including the number of seats available for your Workspace Members) via your Workspace Account. You agree to pay all Fees associated with any upgrades or additional seat purchases made by You via your Workspace Account. Unless otherwise agreed by the parties in writing, (a) all Fees are based on your Subscription Plan and the number of seats You purchase and not on actual usage; (b) your payment obligations and Subscription Plan are non-cancelable; (c) all Fees paid are non-refundable; and (d) you may not downgrade your Subscription Plan or decrease the number of seats purchased during the term of your Subscription Plan.
6.2. Proration for Seat Purchases. When You purchase seats for your Workspace Members, the Fees associated with your seat purchase will be prorated to cover the number of days from the date of purchase of the seats to the end of the applicable Billing Period, depending on the type of seats You purchase for your Workspace Members. For additional information regarding seat purchases, please review our Help Guide.
6.3. Changes to Fees. LiquidPlanner may change the Fees with not less than 30 days’ prior notice to You; provided, that (a) any increase in the annual Fees for your Subscription Plan will not be effective until the first anniversary of the Effective Date and (b) any such increase in Fees will not exceed 5% of the Fees in effect during the period prior to such increase (unless the Fees applicable during such prior period were subject to a promotion or discount provided to You by LiquidPlanner, in which case such increase in Fees may exceed 5%). Any change in the Fees will take effect on the first Billing Period after the 30 day notice period has expired.
6.4. Payment. You will be charged on a recurring basis for the Fees set forth in the Billing Summary located in the Settings section of your Workspace Account. You may set up recurring automatic payments for the Fees in the Billing and Purchasing section of the Billing Summary by designating and maintaining a valid payment method (e.g., credit card or debit card). For recurring automatic payments, (a) You authorize LiquidPlanner, or a third-party payment processor of LiquidPlanner, to charge your designated payment method for the amount of the Fees applicable to each Billing Period on the first day of such Billing Period for the duration of the term of this Agreement; and (b) You must maintain a valid designated payment method at all times during the term of this Agreement. You may revoke your authorization for future automatic recurring payments at any time by modifying your payment options in the Payment Settings section of the Billing Summary. Any Fees not paid when due will bear interest at the rate of 1.5% per month or the maximum rate permitted by Applicable Law, whichever is less, computed and compounded daily until the date paid. You will reimburse LiquidPlanner for any costs and expenses (including reasonable attorneys’ fees) incurred by LiquidPlanner associated with collecting any overdue payments.
6.5. Invoices. If LiquidPlanner invoices You for the Fees applicable to a Billing Period, You will pay all Fees set forth in the invoice within 15 days of your receipt of the invoice or by such later payment due date as may be set forth by LiquidPlanner in the invoice.
6.6. Taxes. The Fees and other amounts payable to LiquidPlanner under this Agreement do not include any taxes, customs, duties, fees or other amounts assessed or imposed by any governmental authority, including VAT and applicable sales tax. You are responsible for paying all taxes applicable to the Hosted Services (other than taxes imposed on LiquidPlanner’s net income). You will pay or reimburse LiquidPlanner for all such amounts on demand or provide certificates or other evidence of exemption.
6.7. Payment Disputes. If You dispute any Fees due during a Billing Period, You must provide written notice to LiquidPlanner within 30 days from the payment due date with an explanation of the nature of the dispute. Unless LiquidPlanner receives a written notice of the dispute within such time period, the Fees due for such Billing Period will be deemed correct and payable in full by You.
Section 7. Term and Termination.
7.1. Term. The term of this Agreement will commence on the Effective Date and will continue until this Agreement is terminated by a party pursuant to this Section 7 or as mutually agreed upon by the parties.
7.2. Term of Your Subscription Plan. The term of your Subscription Plan will commence on the date You purchase the Subscription Plan and will continue for the subscription term applicable to your Subscription Plan as specified at the time You make your purchase. If You upgrade or make changes to your Subscription Plan, such upgrade or changes may affect the term of your Subscription Plan. Any promotions, extensions or additional periods applicable to your Subscription Plan and provided to You by LiquidPlanner, in our sole discretion, will be deemed to be included in term of your Subscription Plan.
7.3. Auto-Renewal of Your Subscription Plan. The term of your Subscription Plan will automatically renew for successive subscription terms, unless You provide us with written notice of non-renewal at least 30 days prior to the end of your then current subscription term.
7.4. Termination. If either party commits a material breach of this Agreement, the other party may give the breaching party written notice of the breach. Unless otherwise agreed by the parties in writing, the term of this Agreement will terminate immediately if the breaching party does not cure such breach within 30 days after its receipt of such written notice. In addition, LiquidPlanner may terminate this Agreement, at any time and in our sole discretion, by providing notice to You through the Sites or the Services.
7.5. Effect of Termination. Upon the expiration or termination of your Subscription Term and upon the expiration or termination of this Agreement, (a) the licenses and rights granted to You and your Workspace Members will immediately terminate; (b) You and your Workspace Members may no longer access and use the Workspace or the Hosted Services, and LiquidPlanner no longer has any obligation to provide the Workspace or the Hosted Services to You or your Workspace Members; and (c) LiquidPlanner will make certain Customer Content available for download by You for a period of at least 30 days after the date of such expiration or termination, after which time LiquidPlanner may permanently delete the Customer Content. If LiquidPlanner terminates the term of this Agreement pursuant to Section 7.4 due to a material breach by You or any of your Workspace Members, You will immediately pay to LiquidPlanner all Fees then payable and that would have become due had the term of this Agreement not been terminated. If LiquidPlanner terminates this Agreement for convenience pursuant to Section 7.4, LiquidPlanner will provide a pro-rata refund of any Fees paid by You and applicable to the period following the effective date of termination. The parties’ respective rights and obligations under Sections 3.1 (last sentence), 3.3, 3.4, 4.4, 5.2-5.6, 6.6, 7.5, 8, 10, 11, 12 and 13, all defined terms and all payment obligations and liabilities accrued prior to the effect date of expiration or termination will survive any expiration or termination of this Agreement.
7.6. Suspension of Hosted Services. LiquidPlanner may suspend access to and use of the Hosted Services by You and your Workspace Members if (a) You fail to pay any Fees or other amounts due and payable under this Agreement; or (b) LiquidPlanner reasonably determines that You or any of your Workspace Members has breached or is breaching any of the terms of this Agreement.
Section 8. Proprietary Rights
8.1. Ownership. The Sites, Hosted Services, Documentation and Site Materials constitute or otherwise involve the intellectual property or other proprietary rights of LiquidPlanner or its licensors. Any customizations of the Hosted Services provided by LiquidPlanner for your use as part of your Subscription Plan pursuant to this Agreement will be exclusively owned by LiquidPlanner. Except for the license and rights granted to You and your Workspace Members in Section 4, nothing in this Agreement will be construed as conferring any right or license to any intellectual property rights of LiquidPlanner or any third party, whether by estoppel, implication or otherwise. No title to or ownership of the Sites, Hosted Services, Documentation or Site Materials, or any corrections, modifications, customizations, revisions, improvements, upgrades, new releases or other changes to the Sites, Hosted Services, Documentation or Site Materials, or any intellectual property rights associated with any of the foregoing, is transferred You or your Workspace Members or any third party under this Agreement.
8.2. Customer Content. As between You and LiquidPlanner, You will own all right, title and interest in and to all Customer Content. You and each of your Workspace Members grants to LiquidPlanner and its affiliates a nonexclusive, nontransferable right to transmit, process and store Customer Content solely in connection with LiquidPlanner’s provision of the Hosted Services and performance of its obligations under this Agreement. You and LiquidPlanner will comply with all Applicable Laws in connection with the processing of the Customer Content.
Section 9. Confidentiality
9.1. Security. LiquidPlanner will implement and maintain reasonable physical, administrative and technical measures in its facilities and on its systems and networks to protect Customer Content from unauthorized access by any third party. LiquidPlanner will not be responsible for any unauthorized access to any Customer Content that (a) occurs through your systems or networks; (b) results from any vulnerabilities or weaknesses in your or your Workspace Members’ devices, equipment, facilities, networks or systems; (c) results from the use or misuse of the Workspace Account or any User Accounts; or (d) results from any breach of your privacy or data protection policies or procedures by You, your Workspace Members or any third party.
9.2. Notice. You will immediately notify LiquidPlanner in writing if any unauthorized use of a Workspace Account, User Account or any other breach of security related to the Workspace or the Hosted Services comes to your attention. In the event any unauthorized third party obtains access to the Hosted Services directly or indirectly through You or any of your Workspace Members, You will take all steps necessary to terminate such unauthorized use and will provide LiquidPlanner with such cooperation and assistance related to such unauthorized access as LiquidPlanner may reasonably request.
Section 10. Warranty and Disclaimers
10.1. Warranties. Each of You, your Workspace Members and LiquidPlanner represents and warrants that (a) this Agreement constitutes a valid and binding agreement enforceable against such party in accordance with its terms; (b) each has all necessary rights and authority to perform its obligations under this Agreement; and (c) the performance of this Agreement does not and will not violate the terms or conditions of any other agreement to which such party is a party or by which it is otherwise bound.
10.2. Disclaimers. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, LIQUIDPLANNER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SITES, HOSTED SERVICES, DOCUMENTATION AND SITE MATERIALS AND ANY OTHER MATTERS UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF USE OR FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT, ANY WARRANTY THAT THE USE OF THE SITES AND HOSTED SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, AND ANY WARRANTIES ARISING BY COURSE OF PERFORMANCE OR TRADE USAGE. LIQUIDPLANNER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE CUSTOMER CONTENT OR ANY FACILITIES, EQUIPMENT OR HOSTED SERVICES USED BY YOU OR YOUR WORKSPACE MEMBERS IN CONNECTION WITH THE SITES AND HOSTED SERVICES. TO THE EXTENT THAT LIQUIDPLANNER MAY NOT AS A MATTER OF APPLICABLE LAWS DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED PURSUANT TO SUCH LAW. LIQUIDPLANNER MAKES NO WARRANTIES REGARDING THE ACCURACY, COMPLETENESS OR TIMELINESS OF ANY INFORMATION OR DATA PROVIDED IN CONNECTION WITH OR RESULTS OBTAINED THROUGH USE OF THE SITES, HOSTED SERVICES, DOCUMENTATION OR SITE MATERIALS. LIQUIDPLANNER DOES NOT WARRANT THAT THE SITES OR HOSTED SERVICES ARE FREE FROM BUGS, ERRORS, DEFECTS OR DEFICIENCIES.
Section 11. Indemnification.
To the maximum extent permitted by Applicable Laws, You agree to defend, indemnify and hold harmless LiquidPlanner, its independent contractors, service providers and consultants, and each of their respective directors, employees and agents (collectively, “Representatives”), from and against any third-party claims, damages, costs, liabilities and expenses (including reasonable attorneys’ fees) arising out of or related to (a) any Customer Content; (b) the use of any facilities, equipment or services by You or your Workspace Members in connection with the Hosted Services; (c) Feedback; (d) any breach of any Applicable Laws, this Agreement or any rights of any third party by You or your Workspace Members; (e) the combination by You or your Workspace Members of the Hosted Services and other products, equipment, software or services not supplied, authorized or recommended in writing by LiquidPlanner; or (f) the gross negligence or willful misconduct of You or your Workspace Members.
Section 12. Limitations
12.1. No Consequential Damages. LIQUIDPLANNER WILL NOT BE LIABLE TO YOU, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY OR STRICT LIABILITY) OR OTHERWISE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF PROFIT, REVENUE OR USE, DAMAGES FOR BUSINESS INTERRUPTIONS OR LOSS OF DATA) ARISING OUT OF OR IN CONNECTION WITH THE PROVISION OF THE SITES, HOSTED SERVICES OR DOCUMENTATION OR THIS AGREEMENT, EVEN IF LIQUIDPLANNER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12.2. Limitation of Liability. IN NO EVENT WILL LIQUIDPLANNER’S AGGREGATE LIABILITY (WHETHER IN CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THE SITES, HOSTED SERVICES, DOCUMENTATION OR SITE MATERIALS OR TO THIS AGREEMENT (INCLUDING ANY LIABILITY ARISING OUT OF ANY PERFORMANCE, NONPERFORMANCE OR BREACH) EXCEED THE TOTAL AMOUNTS, IF ANY, PAID BY YOU TO LIQUIDPLANNER UNDER THIS AGREEMENT.
Section 13. Miscellaneous
13.1. Relationship of the Parties. The parties are independent contractors, and nothing in this Agreement creates any other relationship between the parties. Neither party will hold itself out as an agent, subsidiary or affiliate of the other party or has any authority to bind the other party to third party obligations.
13.2. Modifications. LiquidPlanner reserves the right to alter, modify, add, discontinue or otherwise change the Sites, Hosted Services, Documentation and Site Materials from time to time in our sole discretion and without notice.
13.3. Customers. You agree that LiquidPlanner may identify You as a customer of LiquidPlanner and may display your name and logo on LiquidPlanner’s website and in other promotional materials where LiquidPlanner identifies its other customers.
13.4. Excused Performance. LiquidPlanner will not be liable for, or be considered to be in breach of this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond its reasonable control, such as acts of God, floods, fires, earthquakes or other natural disasters, acts of terror, civil disturbances, Internet service provider failures or delays, or failures or delays caused by issues with the facilities, equipment or services maintained by You and necessary for your or your Workspace Members’ use of the Hosted Services.
13.5. Assignment. You may not assign this Agreement or any of your rights or obligations under this Agreement without the prior written consent of LiquidPlanner. Any attempted assignment without such consent will be void.
13.6. Waiver. A party’s failure or delay in exercising any right under this Agreement will not limit or operate as a waiver thereof, nor will the waiver of any breach by the other party waive any other or further breach.
13.7. Severability. If any provision of this Agreement is for any reason deemed illegal or invalid, such illegality or invalidity will not affect the validity of the remainder of this Agreement, and each such term or provision will be valid and enforceable to the fullest extent permitted by law.
13.8. Export Restrictions. Any software and all underlying information and technology downloaded or viewed from the Sites (collectively, the “Software or Technical Data”) may be subject to U.S. export controls, including the Export Administration Act (50 U.S.C. Appx. §§ 2401 et seq.) and the Export Administration Regulations (“EAR”, 50 C.F.R. Parts 730-774), and may be subject to export or import regulations in other countries. You are responsible for complying with all trade regulations and laws both foreign and domestic. Except as authorized by law, You agree and warrant not to export or re-export the Software or Technical Data to any county, or to any person, entity or end user subject to U.S. export controls, including persons or entities listed on the U.S. Department of Commerce Bureau of Export Administration’s Denied Parties List and the U.S. Department of Treasury’s Specially Designated Nationals. You further warrant that no U.S. federal agency has suspended, revoked or denied its export privileges.
13.9. Applicable Law; Jurisdiction and Venue. This agreement will be interpreted, construed and enforced in all respects in accordance with the laws of the state of Washington, U.S.A., without reference to its choice of law principles to the contrary. You and each of your Workspace Members hereby consents to the jurisdiction and venue of the state and federal courts located in King County, State of Washington, U.S.A. with respect to any claim arising under or by reason of this agreement. Neither You nor any of your Workspace Members will prosecute any action, suit, proceeding or claim arising under or by reason of this agreement except in such courts.
13.10. Entire Agreement. This Agreement, together with all terms incorporated by reference, sets forth the entire agreement between You, your Workspace Members and LiquidPlanner with respect to your and their access to and use of the Hosted Services.