BY USING OR ACCESSING THE SITE, YOU ACCEPT THESE TERMS. IF YOU DO NOT ACCEPT THEM, DO NOT ACCESS, USE, COPY OR OTHERWISE EXPLOIT ANY PORTION OF THE SITE.
Some portions of the Site are accessible without an Account. However, in order to use or access any of the Secure Content (as defined below), you will be required to create an account with Cumulus, and in doing so, you (i) represent and warrant that you have the authority to bind the company registered in connection with your account ("Partner"), and (ii) accept and agree on behalf of yourself as an individual as well as on behalf of Partner to be bound by all of the terms and conditions contained herein. For clarity, "you" in this Agreement is means both the individual registering the Account as well as Partner.
THIS AGREEMENT DOES NOT INCLUDE ANY LICENSE FOR USE OR DISTRIBUTION OF SOFTWARE. YOU MUST OBTAIN EITHER A SEPARATE AGREEMENT WITH CUMULUS OR AN AUTHORIZED CUMULUS RESELLER IN ORDER TO BE AUTHORIZED TO USE OR DISTRIBUTE CUMULUS SOFTWARE.
1. "Secure Content" means the documentation, specifications, white papers, and all other material that Cumulus makes available to Users solely via their Account(s).
2. "User" is any individual who accesses the Site.
3. "Partner Authorized User" is a User who has registered for an Account so long as they are employed by and authorized by the Partner they identify in their Account.
a. Subject to User's compliance with the terms and conditions of this Agreement, Cumulus grants each User the limited, revocable, non-transferable, non-assignable rights to access, read, and link to the generally available content at the Site (excluding the Secure Content).
b. Subject to your compliance with the terms and conditions of this Agreement, so long as you are a Partner Authorized User, Cumulus grants you the limited, revocable, non-transferable, non-assignable rights to access, download, and create (but not distribute) copies of the Secure Content that are labeled with a lock icon or as "Confidential" or "Proprietary" or "For Internal Use Only" only for your internal use in Partner's business relating to Cumulus Products and Services.
c. Subject to your compliance with the terms and conditions of this Agreement, so long as you are a Partner Authorized User, Cumulus grants you the limited, revocable, non-transferable, non-assignable rights to access, download, and create and distribute unedited copies of the Secure Content that is not labeled as "Confidential" or "Proprietary" or "For Internal Use Only" for Partner's use in its business relating to the authorized use, promotion, marketing or other business activities authorized in writing between Partner and Cumulus relating to Cumulus Products and Services.
5. Restrictions on Use: You will cease all access to your Account in the event you are no longer a Partner Authorized User. You may not and shall not: a) modify or create derivative works of the Secure Content; b) provide access to your Account or any Secure Content to any third party in violation of this Agreement; c) provide any false or incorrect information to Cumulus in connection with your Account; d) reverse engineer, or attempt to discover any source code or underlying ideas or algorithms of the Secure Content; or (e) remove or alter any product identification, trademark, copyright or other notices embedded within or appearing within or on the Secure Content. You agree and understand that Cumulus may modify or restrict or terminate your access to the Site or Secured Content at any time, without liability.
8. Confidentiality: Except to the extent expressly permitted under this Agreement, You shall not use or disclose to any third party any non-public information related to or contained within the Secure Content, including, without limitation, with respect to your use or testing of Cumulus Products or Services or future features and functionality that have not yet been publicly announced.
9. No Warranty: CUMULUS DOES NOT WARRANT THAT THE SECURE CONTENT IS ERROR FREE. THE SITE AND SECURE CONTENT IS PROVIDED "AS IS." TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CUMULUS DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SECURE CONTENT INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, DESIGN OR FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE, OR WARRANTIES CONCERNING THE NON-INFRINGEMENT OF THIRD PARTY RIGHTS. NO WARRANTY IS PROVIDED AND NO LIABILITY IS ASSUMED BY CUMULUS REGARDING DATA PROTECTION OR SECURE PROCESSING OR STORAGE OF ANY DATA.
10. LIMITATION OF LIABILITY: TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WHETHER OR NOT EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF WHETHER SUCH LIABILITY ARISES IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR ANY OTHER THEORY OF LIABILITY: (A) CUMULUS, ITS RESELLERS AND ITS SUPPLIERS EXCLUDE AND DISCLAIM ANY LIABILITY FOR (i) ANY INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND, AND (ii) LOSS OF PROFIT (WHETHER DIRECT OR INDIRECT), INCOME, DATA, REVENUE, BUSINESS INTERRUPTION, LOSS OR CORRUPTION OF DATA, COST OF SUBSTITUTE SECURE CONTENT OR SERVICES, OR OTHER ECONOMIC LOSS; (B) UNDER NO CIRCUMSTANCES WILL CUMULUS, ITS RESELLERS AND/OR SUPPLIERS BE LIABLE TO YOU OR ANY THIRD PARTY FOR AN AMOUNT GREATER THAN $100 USD IN CONNECTION WITH THIS AGREEMENT; (D) CUMULUS, ITS RESELLERS AND SUPPLIERS DISCLAIM ANY AND ALL LIABILITY FOR LIABILITY OF ANY KIND RESULTING FROM MISUSE OF THE SECURE CONTENT; AND (E) NO RESELLER CAN ENLARGE CUMULUS'S OBLIGATIONS UNDER THIS AGREEMENT NOR RESTRICT THESE LIMITATIONS OF LIABILITY. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU.
11. Term and Termination; Survival: Either party may terminate this Agreement at any time for any reason by terminating your account. Upon the effective date of any expiration or termination of this Agreement and without further notice to You, the license to use the Secure Content shall immediately cease and you will destroy or delete any copies of the Secure Content in your possession. The following Sections of this Agreement will survive its expiration or termination, howsoever occurring: 1-2 and 4-11.
a. Assignment. You may not assign this Agreement or any of your rights hereunder without Cumulus's prior written consent, which consent shall be subject to Cumulus's sole discretion. Any attempted assignment in breach of this provision will be void. Subject to the foregoing, this Agreement shall be binding upon, inure to the benefit of and be enforceable by the Parties and their respective successors and assigns.
b. Governing Law; Equitable Relief; Attorneys' Fees. THIS AGREEMENT SHALL BE GOVERNED, INTERPRETED, CONSTRUED, AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF CALIFORNIA, USA (EXCLUDING ITS CHOICE OF LAW PROVISIONS, THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF CUMULUSS AND THE UNIFORM COMPUTER INFORMATION TRANSACTION ACT AND ANY ADAPTATION THEREOF). THE SOLE AND EXCLUSIVE JURISDICTION AND VENUE FOR ANY ACTIONS RELATED TO THIS AGREEMENT WILL BE THE STATE AND FEDERAL COURTS SITUATED IN SANTA CLARA COUNTY, CALIFORNIA. The Parties agree that damages will be an inadequate remedy in the case of your breach of certain terms of this Agreement, and that Cumulus may therefore seek equitable relief in addition to any other remedies it may have for such breach without the requirement of posting a bond. The prevailing Party in any legal action related to this Agreement is entitled to recover its reasonable attorneys' fees and costs from the other Party.
c. Miscellaneous. Notwithstanding the use of the term "Partner", this Agreement is between independent parties as contractors and nothing in this Agreement will be deemed create a partnership, franchise, joint venture or agency relationship between the Parties. This Agreement constitutes the complete agreement between the Parties concerning its subject matter and supersedes all prior or contemporaneous agreements, representations or understandings. There are no intended third party beneficiaries of this Agreement. If any of the provisions of this Agreement are held to be in violation of applicable law, void, or unenforceable in any court of competent and appropriate jurisdiction, then such provisions are herewith waived to the extent necessary for this Agreement to be otherwise enforceable in such jurisdiction. Any ambiguities herein will be clarified in an equitable manner without regard to authorship. The provisions of this Agreement, including any Orders placed hereunder may only be waived or modified in a writing signed by a representative of each Party with authority to bind.