Terms of Service

BY LOGGING IN, ACCESSING OR USING ANY SITES OR SERVICES (DEFINED BELOW), OR BY CLICKING OR CHECKING A BOX INDICATING “I AGREE,” “I ACCEPT,” OR ANY SIMILAR EXPRESSION OF AGREEMENT WHILE PURCHASING OR OBTAINING ACCESS TO ANY PORTION OF ANY SITES OR SERVICES, YOU (AND ANY BUSINESS OR COMPANY YOU ARE WORKING FOR OR WHO BENEFITS FROM USE OF SUCH SITES OR SERVICES) AGREE TO BE LEGALLY BOUND BY THIS AGREEMENT. PLEASE PRINT A COPY OF THIS AGREEMENT FOR YOUR RECORDS. IF YOU DO NOT AGREE TO THIS AGREEMENT, YOU ARE NOT AUTHORIZED TO USE AND YOU MUST CEASE USING THE SITES AND SERVICES.
Want to contact us about this Agreement? Legal issues should be addressed to legal@musubu.io. All other issues should be addressed to sales@musubu.io.
1. Overview and Important Definitions
1.1. These Terms of Service (the “Agreement”) constitute a legally binding contract between Musubu, LLC, a Delaware limited liability company (“Musubu”) and you, as a user of or subscriber to Musubu Services (defined below). Where you are also purchasing or accessing Musubu Services on behalf of a company or business, “you” also refers to, and this Agreement is binding on, the company or business for which you are using or purchasing the Services. You represent to Musubu that you have authority to bind such company or business. The most current version of the Musubu Privacy Policy is incorporated into this Agreement by reference and supersedes and replaces all prior versions of the same. Notwithstanding the above, if you and Musubu have entered into a separate written agreement, executed physically or digitally (e.g. DocuSign®) by both you and Musubu, for you to access or use any Sites or Services (“Other Musubu Agreement”), to the extent that the terms of any Other Musubu Agreement conflict with the terms of this Agreement, the conflicting terms of such Other Musubu Agreement will override the conflicting terms of this Agreement unless the Other Musubu Agreement states the contrary.
1.2. “User” refers to any person who accesses or uses any part of the Sites or Services; “Subscriber” refers to a User who has paid to access portions of the Sites or use certain Services restricted to the level of use that was purchased. References to the terms “you” or “your” in this Agreement also refers to Users or Subscribers, as applicable.
1.3. Musubu offers businesses and individuals access to cyber security services and products, application program interfaces (“API(s)”), software as a service available on a subscription basis (e.g., Known Networks® and Musubu®), and various data feeds (any or all are “Services”).
1.4. Musubu Services are available from Musubu branded web domains, including, without limitation, musubu.io (“Sites”).
1.5. In this Agreement “Musubu Data” refers to any and all information and data generated or provided by Musubu or any of its affiliates arising from use of the Sites or Services, which may include information about domains, internet protocol addresses, uniform resource locators and other information Musubu has collected or analyzed.
1.6. While access to certain portions of the Sites and selected features of the Services may be free, Musubu may charge fees for features and benefits associated with any Sites or Services at any time and does not promise that any Site or Service will remain free.
1.7. Musubu may revise and update this Agreement at any time for any reason in its sole and absolute discretion, effective immediately on posting the same to the Sites. The Agreement will indicate at the beginning (top of the page) the date on which the current Agreement was last revised and effective. It is your responsibility to check the then-current Agreement for any changes. YOU AGREE THAT THE MOST RECENT VERSION OF THIS AGREEMENT LEGALLY BINDS YOU FOR ANY OF YOUR ACCESS TO OR USE OF THE SITES AND ANY SERVICES, AND YOU FURTHER AGREE THAT THE MOST RECENT AGREEMENT VERSION SUPERSEDES AND REPLACES THE PRIOR VERSION AND BINDS YOU FOR THE ENTIRETY OF ANY UNEXPIRED AND ACTIVE TERMS OF YOUR SUBSCRIPTIONS TO ANY SERVICES. If you do not agree to the changes to this Agreement, and if such changes materially adversely affect you, you are entitled to terminate your use of the Sites and Services, which you must do effective as of the first attempted use of the Sites or Services after this Agreement is updated, by notifying Musubu of your objection to the modified Agreement terms. If you timely give notice to Musubu and validly terminate this Agreement, the modified terms will not apply to your pre-termination use of the Sites and Services. For the avoidance of doubt, an Other Musubu Agreement may modify or remove this provision.
2. Terms and Conditions Governing API Usage
2.1. Musubu may provide APIs and accompanying software codes and documentation to access and use Musubu Data.
2.2. If Musubu provides you API access via a secret access key, subject to the other terms and conditions in this Agreement, then Musubu grants you a worldwide, limited, non-exclusive, non-transferable license during any Subscription term to make a reasonable number of copies of the API to access Musubu Data and to use Services related to such Musubu Data. If you use or publicly display any Musubu Data accessed with the API, you also will comply with all Musubu link and attribution guidelines on the Sites from time to time.
2.3. You may not resell or redistribute the API, Services or any Musubu Data via your own API or offer it to any third parties – all such use is solely for the User’s or applicable Subscribers own internal personal or business purposes.
2.4. Musubu reserves the right to suspend or terminate access to the API at any time and for any reason, with or without cause. If your access to the API is suspended or terminated, you have no rights associated with such API and you acknowledge that you will not be entitled to any refund or other compensation whatsoever.
3. Terms and Conditions Governing Software as a Service and Subscriptions. Certain Services include Musubu proprietary software and Musubu Data as a service accessed and used from the Sites, including the Known Networks® and Musubu® Services; if you are a User of or Subscriber to any such Services, then you are also subject to the following specific terms and conditions.
3.1. Fees. You agree to pay Musubu for the subscription cost as stipulated on the applicable Site, beginning on the date each Service is first made available to you (“Musubu Subscription Fees”). ALL PAYMENTS ARE FINAL and Musubu is not obligated whatsoever for any partial or complete refunds, including for any renewal payments described in paragraph 3.1(b) below. You must ensure that the credit card information used for your account or subscription is current and accurate, and that you are authorized to use that credit card. Musubu may implement fraud-protection measures anytime including, without limitation, temporarily charging small amounts to validate your credit card and authorization. Each subscription has a credit card associated with it. If a subscription is suspended for inability to process that credit card, and you subscribe to a second Musubu Service while that first Service is suspended (e.g. changing the credit card for the new subscription) but before the original subscription is canceled, Musubu may use the valid payment credit card for the second subscription to re-initiate the suspended Service.
(a) Scope of Services. Subject to this Agreement (including payment), Musubu will grant you data access in accordance with subscription Service access terms. These Services are described in greater detail on the Sites.
(b) Renewal. Each Musubu subscription renews monthly or annually (as stipulated by the subscription purchased) or as set forth in a Other Musubu Agreement. You are responsible for acting prior to renewal if you do not want to renew automatically. You may not receive notice of your renewal after subscribing, and you must visit your Subscription and Billing page to find out when your subscription renews. If your renewal payment fails, you will no longer have any rights under this Agreement related to your previously purchased Musubu subscription or Musubu Data, until your payments are current. Failure to renew a listing within 10 business days of the renewal will result in loss of any special or custom pricing terms associated with the previous subscription.
(c) Pricing Changes. Musubu may change Subscription Fees from time to time; with respect to new pricing for renewals, Musubu will provide at least thirty (30) days’ notice by email and/or posting any new fee schedule on the applicable Site.
(d) Customer Management.
(1) Cancellation. Unless otherwise stated in a Other Musubu Agreement, you may cancel a subscription to a Service at any time. Cancellation is immediate, irreversible and must occur prior to expiration of the current subscription term to avoid related renewal fees. Cancellation removes access to Musubu Services and Musubu Data. Your cancellation will not under any circumstances entitle you to any complete or partial refunds whatsoever for such subscription, including any prepayments. For security, an email or phone call to Musubu is not sufficient to cancel your Services subscription. You may cancel at any time by selecting the cancel button on your subscription and billing page. You will continue to have access to the Sites and Services you have paid for until the end of your subscription term but will lose access if the subscription is not in good standing.
(2) Changes and Updates. You may make changes to machines you have designated to have access (whitelisted IPs) to the Services and Musubu Data. However, it is your responsibility to maintain an accurate list of these machines. This validation policy protects you and other customers from having unauthorized access by unauthorized agents.
(e) Additional obligations and acknowledgements. You acknowledge and agree as follows:
(1) By purchasing Services and Musubu Data, you warrant that you own each machine that accesses the related Services.
(2) To periodically review and confirm the accuracy of machines with access.
(3) Musubu may occasionally require you to submit proof by email of machines with access, and failure to comply with any request may result in cancellation of your listing(s).
4. General terms and conditions governing all Users
4.1. The Services are available only to Users and Subscribers who:
(a) Are human (not bots, except for certain authorized API users) and who are not less than 18 years old;
(b) Submit and then maintain truthful and accurate account information;
(c) Do not impersonate any other person or entity or otherwise misrepresent their identity to Musubu in any manner, including in a profile or elsewhere on the Sites;
(d) Have a valid email address;
(e) Comply with all applicable laws in the use of the Services and Musubu Data; and
(f) Do not authorize third parties (other than those affiliated through an employer-employee or entity ownership to such User or Subscriber) to use the Services, their account, profile, or messages or otherwise resell, sublicense or provide the Services to unaffiliated persons or parties (e.g. “group buys” or “buyers’ clubs”).
4.2. You agree that you have or will enter into agreements with your individual users who access any Sites or Services on your behalf that protect Musubu, the Musubu Data, Sites and Services in a manner that provides Musubu the same or greater extent as is provided in this Agreement.
4.3. If Musubu, through any Sites, Services, or otherwise, provides you user authentication and access tools (i.e., user name, password, access keys, etc.) for secure access to any Site or Services, you agree to keep that account access information protected, secure, and confidential, and not share it with others in any way that breaches this Agreement. You agree that Musubu in its sole and absolute discretion may block you from any Sites or Services or use of the API if Musubu determines in its discretion that your use thereof, or the credentials provided, have been compromised or otherwise misused, you are violating this Agreement, or violating applicable law. You acknowledge, however, that Musubu is not obligated to monitor your credentials for such misuse, and any monitoring or review by Musubu is solely to protect Musubu and you may not rely on such monitoring to secure your credentials. You also agree to notify Musubu immediately of any unauthorized access to or use of your credentials to the Musubu Services, Sites or Musubu Data.
4.4. If you and Musubu have entered into an invoicing relationship with you outside of automated credit card invoicing, the following terms apply unless superseded by an Other Musubu Agreement: You agree to pay all such undisputed invoices within 30 days. You agree that Musubu may charge interest of 1.5% per month for past due invoices, or the highest rate permitted by law, and you are liable for reasonable attorney fees and collection costs arising from Musubu’s efforts to collect on past due amounts. If you fail to pay an invoice, Musubu reserves the right to cancel your subscription and access to any Sites or Services, and any data associated with your subscription or the Services. You waive any right to dispute an invoice if such dispute is not raised in writing with Musubu within 15 calendar days of the date of the invoice.
4.5. Taxes. The price, fees, and other amounts payable to Musubu under this Agreement do not include any sales, use, transfer, excise or other similar taxes assessed or imposed by any governmental authority. With regard to such amounts, you will either pay or reimburse Musubu for all such charges as invoiced, pay such taxing authority directly or provide certificates or other evidence of exemption. You agree to indemnify, defend and hold Musubu harmless from any such taxes, fines, interest or other amounts, except solely to the extent Musubu violated applicable law in respect thereof.
4.6. Musubu reserves the right to monitor your communications to the extent they are facilitated by any Sites or Services, and may disclose content and information about you, including content contained within your communications, if Musubu deems it reasonably necessary to: (1.) conform to legal requirements or respond to legal process; (2.) ensure your compliance with this Agreement or the Musubu Privacy Policy; or (3.) protect the rights, property, personal safety, or interests of Musubu, its employees, customers, or the public. Musubu’s monitoring is solely for Musubu’s benefit and may not be relied upon by you for any purpose.
5. User-Generated Content
5.1. In this Agreement any information, profiles, data, text, links, articles, software, photographs, graphics, video, music, sound, messages, or other materials that you upload, publish, or display on or through any Sites or Services, whether publicly posted or privately transmitted is referred to as “User-Generated Content,” provided that for these purposes, credit card information you submit to us using our payment system to pay for the Services, your user name, and your password are not deemed User-Generated Content.
5.2. You may not provide any sensitive information to Musubu in User-Generated Content. In this provision “sensitive information” means any: health care information, including but not limited to protected health information, medical record numbers or other medical information; financial account information such as credit card data, bank account numbers, employer identification numbers, social security numbers or other similar types of identifying information; account login credentials, security keys or similar access credentials; or any other information which, if unauthorized access was gained to such information, could lead to identity theft, financial loss or public disclosure of sensitive personal matters. Musubu is not responsible for and undertakes no duty to safeguard, protect or prevent disclosure of any sensitive information that you include in User-Generated Content in violation of this provision.
5.3. You assume legal responsibility for all your User-Generated Content. You represent and warrant to Musubu that no proprietary rights including but not limited to copyright, trademark, trade secret, publicity or privacy rights, or any other intellectual property rights are being violated by your use, posting, transmission or sharing of any User-Generated Content via any Sites or Services. You agree not to use, post, transmit, or share User-Generated Content on any Sites or Services that you: lack authority or permission to use, post, transmit, or share, or that violates in any way the rights of other persons or solicits, encourages, or promotes illegal activities, including but not limited to activities that threaten, abuse in any way, harass, defame, libel, disparage, invade the privacy or publicity rights of other persons or that are vulgar, obscene, bigoted or hateful, profane, scandalous, obscene.
5.4. No Musubu Responsibility for User-Generated Content. Musubu assumes no obligations to screen and does not routinely pre-screen any User-Generated Content that you use, upload, publish, or display on or through any Sites or Services. Musubu does not guarantee the accuracy, integrity, appropriateness, quality, or validity of any User-Generated Content. User Generated Content does not necessarily represent the views or opinions of Musubu and under no circumstances whatsoever will Musubu be liable for any User-Generated Content, including without limitation liability related to any loss or damage of any kind incurred from using any User-Generated Content uploaded, published, or displayed on or through any Sites or Services. Only you are solely responsible (at your own expense) for creating backup copies and replacing any of your User-Generated Content. While you agree that Musubu is not obligated to, Musubu may remove any User-Generated Content at any time at its sole discretion, including User-Generated Content that in Musubu’s sole judgment violates this Agreement or applicable law, or is offensive, illegal, or violates the rights of any person or entity, or harms or threatens the safety of any person or entity. Musubu assumes no obligation to maintain or store any User-Generated Content. Musubu may delete, modify, or restrict the display of User-Generated Content at any time for any reason, including but not limited to a change in Subscriber account level, Services cancellation, violation of the Agreement, or violation of the Musubu Community Etiquette; once deleted, User-Generated Content may not be retrieved. You waive all claims for damages against Musubu or any of its owners, subsidiaries, affiliates, officers, directors and agents that may arise from Musubu’s exercise of its rights to remove, suspend access to or delete User-Generated Content.
6. Musubu’s Permitted Use of User-Generated Content and User Data
6.1. Musubu does not claim ownership of User-Generated Content. Subject to the rights granted to Musubu in this Agreement, you retain full ownership of all of User-Generated Content to the extent you would otherwise have intellectual property or other proprietary rights associated with such User-Generated Content.
6.2. You authorize Musubu to copy, make derivative works from, modify, distribute and otherwise use any User-Generated Content that you upload, publish, or display on or through any Sites or Services as Musubu deems necessary to facilitate the posting and storage of such User-Generated Content on the Sites or in the Services.
6.3. You further authorize Musubu to anonymize and aggregate User-Generated Content and any other data you share automatically or manually with Musubu (“User Data”), including data associated with your Google Analytics and social media profiles, and by way of example and not limitation, such authorization permits Musubu to provide current or future services and for benchmarking, research and development, data products, or other marketing purposes. By uploading, publishing, or displaying User Data on or through any Sites or Services, you grant Musubu, its parent companies, subsidiaries, affiliates, and partners an irrevocable, fully paid up, perpetual, worldwide, royalty-free, non-exclusive license (with the right to sublicense and transfer) right to use anonymized and aggregated User-Generated Content and User Data, in all present and future media, and in any manner relating to Musubu’s business including to provide any Sites or Services.
6.4. For any User-Generated Content that you upload, publish, or display on or through any community portions of the Sites, including without limitation your User Profile, the Musubu Blog, and the Q&A service, and any future Musubu Sites or Services that are made available to the public or other Subscribers, you grant to Musubu, its affiliates, and partners an irrevocable, fully paid up, perpetual, worldwide, royalty-free, non-exclusive, transferable license (with the right to sublicense) the right to use, reproduce, translate, alter, publicly perform, publicly display, modify and make derivative works from, adapt, publish, excerpt (in whole or in part), and distribute such User-Generated Content, in whole or in part, in all present and future media and in any manner relating to Musubu’s business (including, without limitation, on the sites of our affiliates, partners, and others with whom Musubu may have business relationships relating to any Sites or Services). You further agree that Musubu is free to use any ideas, know-how, concepts, techniques, or other materials in the User-Generated Content. You acknowledge that Musubu may retain archived copies of such User-Generated Content. Subject to the preceding, you may remove User-Generated Content from the Sites at any time.
7. Services Limitations; Availability. Musubu may limit use of any Sites or Services at its discretion, including the frequency with which you may access any Sites or Services or your ability to post User-Generated Content. Musubu reserves the right to modify, update, interrupt, suspend or discontinue, temporarily or permanently, all or a part of any Sites or Services without notice. You agree that Musubu shall not be liable to you or to any third party for any modification, suspension, or discontinuance of any Sites or Services. You are also responsible for providing all equipment you use to access any Sites or Services.
8. User Feedback and Beta Services
8.1. “Feedback” means any ideas, suggestions, or comments that you provide to Musubu related to any Sites, Services, Musubu Data or any other Musubu technologies, products, service, or business activities (in beta, pre-release, or released versions). You agree that you have no expectation of, and Musubu has no obligations for, confidentiality or privacy in any Feedback. You grant Musubu a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable license to use, modify and make derivative works, reproduce, distribute, display, publish, perform, use, make and have made, sell and have sold, import and export and otherwise make any use of Feedback whether existing now or in the future.
8.2. From time to time, Musubu may add new features to the Services that may be described as “beta” services or features (collectively, “Beta Features”). Beta Features will be considered part of the Sites or Services and all provisions of this Agreement relating to any Sites or Services will apply to the Beta Features as well. Users acknowledge that Beta Features may be untested, non-functional, and/or partially functional features of the Sites or Services. If you use a Beta Feature, you do so at your own risk. Notwithstanding anything else in this Agreement to the contrary, Beta Features are provided “AS IS” and Musubu disclaims any warranties associated with any Beta Feature. You assume and bear any risk that Beta Features may harm or interrupt operation of your software or hardware.
9. Ownership; Use Restrictions
9.1. Except for your rights to access and use the Sites, Services and Musubu Data expressly granted to you by this Agreement or if applicable an Other Musubu Agreement, and the provisions respecting User-Generated Content, Musubu retains all right, title, and interest in and to the Sites, Services, Musubu Data and all information contained therein, including all related patent, copyright, trademark, trade secret, and other proprietary rights (intellectual property rights) embodied or evidenced thereby. The Sites, Services and Musubu Data are protected by applicable intellectual property laws in the US and internationally. No grant or transfer of any right, title, or interest to you shall be implied, your sole rights shall be a license to copies thereof. Notwithstanding anything to the contrary, upon termination or expiration of this Agreement as applicable to you, all rights and licenses granted to you under this Agreement shall terminate.
9.2. Musubu owns the trademarks, service marks, trade names, and other marks, themes, trade dress and source identifying content throughout the world associated with Musubu, the Sites, and the Services (the “Musubu Trademarks”). Except as otherwise permitted by law, or as may expressly be stated in an Other Musubu Agreement, you agree not to display or use in any manner the Musubu Trademarks without Musubu’s prior written consent.
9.3. Subject to any of your rights under applicable law, you covenant not to directly or indirectly by or with any other person: (1.) modify, distribute, adapt, decompile, disassemble, reverse-assemble, reverse-engineer, or prepare derivative works from any computer code or any other materials owned by Musubu or available on the Sites or in the Service or in connection with other Musubu technology; (2.) use, evaluate, or view Musubu Data, the Sites or the Services for the purpose of designing, modifying, or otherwise creating any software program, or any portion thereof, that performs functions similar to the functions performed by any Sites or Services, or to compete with Musubu; (3.) knowingly access or use the Sites or Services in a manner that abuses or disrupts the Musubu networks, security systems, user accounts, or any Sites or Services or those of any third party, or attempt to gain unauthorized access to any of the above through unauthorized means (including by exceeding authorized access); (4.) market, offer to sell, and/or resell any Sites or Services unless authorized in an Other Musubu Agreement; (5.) use Sites, Services or Musubu Data in violation of this Agreement or any Other Musubu Agreement, or any Musubu policies, applicable laws, rules, regulations or orders; (6.) use any Sites or Services to send unsolicited or unauthorized advertising, junk mail, or spam; (7.) harvest, collect, or gather information or data regarding other Musubu users without their consent; (8.) transmit through or upload on any Sites or Services any material that may infringe the intellectual property or other proprietary rights of third parties, including any trademark, copyright, trade secret, privacy, or right of publicity; (9.) transmit or post on any Sites or Services any material that contains software viruses or other malicious or harmful computer code, files, or programs; (10.) remove, alter, or obscure any proprietary notices (including copyright notices) on any portion of the Sites, Services or Musubu Data; (11.) circumvent or disable any usage rules or other security features for or used by any Sites or Services; or (12.) disclose, reproduce, summarize, distribute, or use any Sites or Services except as necessary to exercise the rights granted to you in this Agreement. Musubu shall have sole and exclusive discretion to determine violations of these restrictions and then may immediately suspend your account and access to any Sites or Services without notice for violations of these restrictions.
10. Copyright Infringement
10.1. If you believe that your work has been used related to this Agreement in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please notify Musubu at legal@musubu.io or contact Musubu’s copyright agent as follows: Attention Director of Operations, Release 2 Innovation LLC, 5729 Pindell Road Lothian, MD 20711, Phone: 443-607-6923.
10.2. You must provide all of the following in writing: identify the copyrighted work that you claim has been infringed (or if multiple copyrighted works, then a representative list of such works); identify the content on the Services that you claim is infringing with enough detail so that Musubu may locate it; your statement must comply with applicable law in the country in which you are located, you must state that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; your statement declaring that the notification is accurate, and, under penalty of perjury, that you are the exclusive owner of the copyright interest involved or that you are authorized to act on behalf of the exclusive owner; information reasonably sufficient to permit Musubu to contact you, i.e. address, telephone number, and email address; and your physical or electronic signature.
10.3. On receiving your above notice, Musubu will take whatever action, in its sole discretion, it deems appropriate, including removal of the disputed use from the Sites or Services or termination of the posting account.
11. User Indemnification of Musubu for Certain Actions. You agree to indemnify, defend and hold Musubu and its parent company, affiliates, officers, agents, subsidiaries, partners, employees and other agents harmless from any loss, liability, claim, or demand, including reasonable attorneys’ fees, arising from claims made by any third party based upon (1.) User-Generated Content or User Data you post, transmit, or make available through any Sites or Services; (2.) your unauthorized use of any Sites or Services; (3.) your connection to the Services, including your use of the Services, to provide a link to upload content or other information to other websites; (4.) your violation of the Agreement (including the Privacy Policy); (5.) your violation of applicable law, or violation of any third party’s rights, including but not limited to any intellectual property rights; (6.) any data breach caused or contributed to by you; and (7.) your negligence or intentional act or omission. For the avoidance of doubt, you are liable for any acts or omissions of your agents, employees and other third parties who take actions or omit to take actions by or through you, the same as if they were your act or omission.
12. Warranties and Limitations
(a) Each party warrants and represents that it shall comply with all applicable laws and regulations in performing its obligations under this Agreement.
(b) EXCEPT FOR ANY EXPRESS WARRANTY IN THIS AGREEMENT, MUSUBU AND ITS THIRD-PARTY SUPPLIERS HEREBY DISCLAIM ALL EXPRESS OR IMPLIED WARRANTIES REGARDING THE API, MUSUBU DATA, SITES OR SERVICES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND QUALITY. MUSUBU AND ITS THIRD-PARTY SUPPLIERS MAKE NO REPRESENTATIONS OR WARRANTIES WHATSOEVER REGARDING THE RELIABILITY, AVAILABILITY, TIMELINESS, SUITABILITY, ACCURACY, OR COMPLETENESS OF THE API, SITES OR SERVICES, THE MUSUBU DATA, OR THE RESULTS YOU MAY OBTAIN FROM THEIR USE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MUSUBU AND ITS THIRD-PARTY SUPPLIERS DO NOT REPRESENT OR WARRANT THAT (1.) THE OPERATION OR USE OF THE API, SITES OR SERVICES WILL BE TIMELY, UNINTERRUPTED, OR ERROR-FREE, OR (2.) THE QUALITY OF THE API, SITES OR SERVICES WILL MEET YOURS OR ANY OTHER REQUIREMENTS. YOU ACKNOWLEDGE THAT NEITHER MUSUBU NOR ITS THIRD-PARTY SUPPLIERS CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT ANY API, SITES OR SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES, AND THEREFORE NEITHER MUSUBU NOR ANY OF ITS THIRD-PARTY SUPPLIERS ARE RESPONSIBLE FOR ANY DAMAGE RESULTING FROM SUCH PROBLEMS. EXCEPT WHERE EXPRESSLY PROVIDED OTHERWISE BY MUSUBU, THE API, SITES AND SERVICES ARE PROVIDED TO YOU “AS IS” AND “AS AVAILABLE.” USERS OR SUBSCRIBERS MAY HAVE ADDITIONAL RIGHTS AS A CONSUMER UNDER LOCAL LAW THAT THIS AGREEMENT CANNOT CHANGE. MUSUBU DISCLAIMS ALL IMPLIED WARRANTIES ARISING FROM ANY UNIFORM COMPUTER INFORMATION TRANSACTION ACT.
13. THIRD-PARTY SOFTWARE; LIABILITY LIMITATION; EXCLUSIVE REMEDIES FOR USERS AND SUBSCRIBERS
13.1. Third-Party Software. You are solely and entirely responsible for any third-party software that you obtain and use in connection with any Sites or Services, the API and/or the Musubu Data. Musubu exercises no control over such third-party software and is not responsible for its performance. Your purchase or use of such software shall be governed by the terms and conditions provided by such third parties. Musubu is not responsible or liable, directly or indirectly, for any damage or loss caused to you by use of or reliance on any third-party software. You are responsible for all fees charged to you by third parties, or such software or other services you require related to accessing or using any Sites or Services. You are responsible for obtaining all licenses for third-party software for your use with any Sites or Services. If Musubu believes that you lack necessary rights to use any third-party software that you depend on or use with any Sites or Services, Musubu may suspend or terminate your access to such Sites or Services.
13.2. EXCLUSIONS OF CERTAIN DAMAGES AND LIMITATIONS OF LIABILITY. You agree that these exclusions of damages and limitations of liability are a fundamental element of the parties’ agreement:
(a) Under no circumstances will Musubu or any of its third-party suppliers or any of their respective affiliates be responsible for any loss or damage resulting from your reliance on information or other content posted on the Sites or transmitted to or by you or any other Users or Subscribers.
(b) EXCEPT SOLELY TO THE EXTENT PROHIBITED BY APPLICABLE LAW, NEITHER MUSUBU NOR ANY OF ITS THIRD-PARTY SUPPLIERS SHALL BE LIABLE TO YOU OR ANY USERS OR ANYONE ELSE, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO: DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES RESULTING FROM ANY ACCESS TO (OR INABILITY TO ACCESS) OR USE OF THE SITES, SERVICES, API OR MUSUBU DATA, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), STATUTORY OR LEGAL VIOLATION OR ANY OTHER LEGAL THEORY, EVEN IF MUSUBU OR ANY OF ITS THIRD-PARTY SUPPLIERS WERE ADVISED THAT SUCH DAMAGES WERE POSSIBLE. The disclaimer in the preceding sentence includes any damages arising from your inability to access or use the API, Sites, Services or Musubu Data (including due to modification, suspension, blocking, discontinuance, cancellation, or termination of any Services or any part thereof). Without limiting the foregoing, you specifically acknowledge and agree that neither Musubu nor any of its third-party suppliers is liable for the defamatory, offensive, infringing, breaching, fraudulent, or illegal conduct of other users, subscribers, or third parties and that any risk from the foregoing are assumed entirely by you. These limitations apply to any matter related to the Sites, Services, API and Musubu Data; third-party Internet sites, programs, or conduct; viruses or other disabling features; incompatibility between the API, Sites or Services and other services, software, or hardware; and any delay or failure in initiating, conducting, or completing any transmission or transaction connected with the API, Sites or Services in an accurate or timely manner.
(c) Limitation of Liability. EXCEPT SOLELY TO THE EXTENT PROHIBITED BY APPLICABLE LAW, NEITHER ANY LIABILITY OF MUSUBU OR ANY OF MUSUBU’S THIRD-PARTY SUPPLIERS OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS) OR ANY OF YOUR USE OF THE SITES OR SERVICES, REGARDLESS OF THE FORUM AND WHETHER ANY ACTION OR CLAIM IS BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), VIOLATION OF APPLICABLE LAW, OR ANY OTHER LEGAL THEORY, SHALL NOT EXCEED THE GREATER OF (A.) THE TOTAL AMOUNT PAID BY YOU TO MUSUBU TO ACCESS OR USE ANY SITES OR SERVICES GIVING RISE TO SUCH LIABILITY DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE DATE THE LIABILITY AROSE OR (B.) TWENTY UNITED STATES DOLLARS (USD$20.00). This Section 1.1(a) applies even if this remedy does not fully compensate you for any losses or fails its essential purpose; or even if Musubu or any of its third-party suppliers knew or should have known about the possibility of the losses, liability, or damages. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, or limitation of liability for certain claims or causes of action, so the above limitations or exclusions may not apply to you in these jurisdictions.
14. International Use
14.1. Your Internet use may be global; thus, you agree to comply with all local rules and laws regarding your access and use of any Sites or Services through the Internet, and without limitation, you will comply with all applicable laws regarding obscene and indecent content and transmitting technical data exported from the United States or the country in which you reside.
14.2. Musubu is a United States based company and may store and process data in one or more data centers anywhere in the world. Musubu is not undertaking any obligations herein under any special law, rules or provisions applicable outside the United States, including but not limited to with respect to any “personal data” (as defined under the General Data Protection Regulation [GDPR] [EU] 2016/679 and any other applicable data protection legislation) (“Personal Data”). Musubu does not process any Personal Data as a part of its core function and only uses such Personal Data to communicate with you and provide the Services to you. If you require additional protections or legal provisions, you must contact Musubu and negotiate an Other Musubu Agreement.
15. Termination. Upon termination of Services, any payment liabilities owed to Musubu and accrued prior to the effective date of the termination will survive and to the extent any such payments were due in the future, shall automatically be accelerated and be immediately due and payable. Except for the licenses granted to you for access to or use of the API, Sites, Services and Musubu Data, all of which shall terminate immediately upon termination of this Agreement, all of the other provisions of this Agreement shall survive and termination or expiration of this Agreement. You are solely responsible for removing your information and material from any Sites or Services prior to any termination. Musubu is not obligated to retain your information, material, or data following termination.
16. Miscellaneous Clauses
16.1. Changes to Services. Musubu may change any Sites or Services from time to time, with or without notice, by adding, modifying, suspending, or discontinuing features of such Sites or Services.
16.2. Force Majeure. Neither you nor Musubu will be liable to the other for any delay or failure to perform any obligation under this Agreement if the delay or failure is due to circumstances beyond such party’s reasonable control. The affected party will notify the other party of such event and resume performance as soon as reasonably practicable.
16.3. Notices. If Musubu must send you additional information regarding the Agreement or any Musubu Data, the API, Sites or Services, you consent to receiving this information electronically. Musubu may provide required information to you by email or other electronic messaging service at any address you registered with the Sites or Services or via posting on the Sites or Services. Notices provided to you via email or other electronic means are effective on the transmission date. You will provide Musubu any written notice under this Agreement by email to legal@musubu.io.
16.4. Forum and Jurisdiction. This Agreement is governed by the laws of the State of Maryland, USA, without regard to its conflict of law provisions. You irrevocably consent to the exclusive jurisdiction of the state and federal courts located in Anne Arundel County, USA to resolve any dispute, claim, or controversy that arises from this Agreement.
16.5. Arbitration.
(a) Notwithstanding anything to the contrary contained in this Agreement, except with respect to actions for equitable relief, which claim may be filed directly in a court of competent jurisdiction as provided above, any other dispute between the parties to this Agreement, whether arising in tort, contract, pursuant to a right under statute, rule or regulation, and including any claim that may be subject to a class action, shall be settled by binding arbitration under the Commercial Arbitration Rules (“Rules”) of the American Arbitration Association (the “AAA”), and shall be held in the State of Maryland, United States.
(b) Any dispute properly submitted for arbitration shall be referred to one arbitrator in an arbitration administered by the AAA, according to the following procedures: The party or parties submitting (“Submitting Party”) the intention to arbitrate (the “Submission”) shall nominate one arbitrator. If within 20 days of receipt of the Submission, the party or parties receiving the Submission (“Answering Party”) does not agree on such arbitrator, then the arbitrator shall be appointed by the AAA in accordance with the Rules unless the parties can agree on an arbitrator. The parties agree that they shall consent to an expedited proceeding under the Rules, to the full extent the AAA can accommodate such a request.
(c) The ruling of the arbitrator shall be binding and conclusive upon all parties hereto and any other person or entity with an interest in the matter, and the arbitrator shall have the authority to direct the parties to make payments, withdrawals and distributions with the results of arbitration.
(d) The arbitration provision set forth in this Agreement shall be a complete defense to any suit, action or other proceeding instituted in any court regarding any controversy or claim (except as provided for above for claims permitted to be filed directly in court, but including, without limitation, whether any controversy or claim is subject to arbitration) arising out of or relating to any said disputes to be arbitrated hereunder between the parties; provided, however, that (A) any of the parties to the arbitration may request a State of Maryland State Court or State of Maryland Federal District Court to provide interim injunctive relief in aid of arbitration hereunder or to prevent a violation of this Agreement pending arbitration hereunder (and any such request shall not be deemed a waiver of the obligations to arbitrate set forth in this Agreement), (B) any ruling on the award rendered by the arbitrator may be entered as a final judgment in any court of competent jurisdiction anywhere in the United States, including but not limited to in a State of Maryland State Court or State of Maryland Federal District Court (and each of the parties hereto irrevocably submits to the jurisdiction of such court for such purposes) and (C) application may be made by a party to any court of competent jurisdiction wherever situated for enforcement of any such final judgment and the entry of whatever orders are necessary for such enforcement.
(e) In any proceeding with respect hereto, all direct, reasonable and out-of-pocket costs and expenses (including, without limitation, AAA administration fees, arbitrator fees, expert witness fees, and attorneys’ fees) incurred by the parties to the proceeding shall, at the conclusion of the proceeding, be paid by the party incurring the same; however, the arbitrator may award payment of all or any portion of any such fees and expenses to the prevailing party in arbitration, or on the basis of any obstreperous or excessive litigation tactics.
(f) The arbitrator shall have power to permit reasonable discovery using subpoenas and other regular procedures and the parties shall cooperate in such discovery and not unduly multiply the proceedings, make duplicative or unnecessary requests or otherwise cause undue expense. The arbitrator shall have the power to sanction any party that violates the arbitrator’s rules or orders, which sanctions may include payment of fees and costs incurred by the other party, up to and including dismissal and/or default judgment.
16.6. Jury waiver. THE PARTIES EXPRESSLY WAIVE ANY RIGHT TO A TRIAL BY JURY IN CONNECTION WITH ANY DISPUTE BETWEEN THEM, WHETHER ARISING HEREUNDER, UNDER APPLICABLE LAW, OR IN TORT OR OTHERWISE.
16.7. Additional Rights and Obligations. This Agreement shall neither obligate Musubu, nor provide any rights, to any third-party whatsoever as an intended third-party beneficiary under this Agreement. You and Musubu are independent contractors without authority to bind each other or to make any representations on behalf of the other party, and you and Musubu shall not be held to be partners or co-venturers. If any provision of this Agreement is held invalid or unenforceable, such provision shall be held superseded by a valid, enforceable provision that most closely matches the intent of the original provision; the remaining provisions will remain in full force and effect. Any party’s failure to act with respect to a breach of this Agreement does not constitute a waiver or affect that party’s rights to act subsequently. You may not assign rights or delegate any duties under this Agreement without prior written notice to and consent by Musubu. This Agreement will bind any permitted successors and permitted assigns.
16.8. Entire Agreement. The Agreement (along with the Privacy Policy and any Other Musubu Agreement) constitutes the entire agreement between you and Musubu and governs your access to and use of the API, Sites, Services and Musubu Data, superseding any prior agreements between you and Musubu (including, but not limited to, any prior versions of the Agreement), provided that in a conflict, any Other Musubu Agreement shall control over different or conflicting terms herein. In no case shall any terms on a purchase order or other non-Musubu ordering document from you apply to, in addition to, or otherwise be included in the provisions of this Agreement without Musubu’s prior written consent and agreement. No modification of this Agreement is binding on Musubu unless it is in writing and signed by Musubu.