The ORGANICRANKINGS.COM Subscription Agreement (“Agreement”) is entered into on the Effective Date between Client and ORGANICRANKINGS.COM. Inc., 7815 Clover Creek Ct, Raleigh, NC 27613 (“ORGANICRANKINGS.COM”). This Agreement includes all terms set forth herein and any terms stated within the Checkout Screen (deﬁned below) that incorporates this Agreement and is attached.
PLEASE BE AWARE THAT THERE ARE CLASS ACTION AND ARBITRATION PROVISIONS WITHIN THIS AGREEMENT.
By purchasing a Subscription (defined below), using the ORGANICRANKINGS.COM SAAS (defined below), or clicking “Agree”, Client agrees to be bound by this Agreement. ORGANICRANKINGS.COM may make modifications of this Agreement from time to time and may notify Client where it makes such modifications.
Capitalized terms in the Agreement are as follows:
“Client” means the client as identified within the Checkout Screen.
“Client Data” means any and all Client data, content, notes, information, or other materials inputted, interfacing, or used within the ORGANICRANKINGS.COM SAAS.
“Documentation” means the content and materials describing the operation of the ORGANICRANKINGS.COM SAAS and any associated features that are made available to Client via ORGANICRANKINGS.COM’s website, which may be updated from time to time.
“Fees” any fees or expenses as set forth within the Checkout Screen.
“Intellectual Property Rights” means any patent, patent application, copyright, moral right, trade name, trademark, trade secret, and any applications or right to apply for registration therefor, computer software programs or applications, tangible or intangible proprietary information, or any other intellectual property right, whether registered or unregistered that are owned by a Party.
“ORGANICRANKINGS.COM SAAS” means the ORGANICRANKINGS.COM branded software as a service known as ORGANICRANKINGS.COM, accessible at www.OrganicRankings.com or otherwise as identified used to assist Client in managing its SEO business and any associated Documentation (deﬁned below), data, code, and other materials made available by ORGANICRANKINGS.COM as generally described on the ORGANICRANKINGS.COM website. The ORGANICRANKINGS.COM SAAS does not include any software development services or professional services.
“Party” and/or “Parties” mean ORGANICRANKINGS.COM or Client in the singular, and ORGANICRANKINGS.COM and Client in the plural.
“Subscription” means Client’s subscription plan to access the ORGANICRANKINGS.COM SAAS which is more fully described in the Checkout Screen.
“Checkout Screen” means the electronic check out screen which sets forth Client’s subscription details, conditions, or additional terms for Clients subscription to the ORGANICRANKINGS.COM SAAS.
“Support” means any support services offered to Client for ORGANICRANKINGS.COM SAAS subject to this Agreement.
“Third Party Software” means software that is owned and controlled by a third party that may be required as a separate purchase, prior to Client accessing the ORGANICRANKINGS.COM SAAS.
2. ORGANICRANKINGS.COM SAAS Subscription.
2.1 ORGANICRANKINGS.COM SAAS Subscription ORGANICRANKINGS.COM provides the ORGANICRANKINGS.COM SAAS as a subscription and the subscription is ordered through the Checkout Screen. Subject to the terms and conditions of this Agreement and the Checkout Screen and upon timely payment of any Subscription Fees (deﬁned below), ORGANICRANKINGS.COM shall make available the ORGANICRANKINGS.COM SAAS to Client in accordance with this Agreement. Where any portions of the ORGANICRANKINGS.COM SAAS are downloaded, ORGANICRANKINGS.COM grants Client a worldwide, non-exclusive, non-transferable, non-sublicensable, non-assignable, terminable, limited license to use the ORGANICRANKINGS.COM SAAS for the duration of the Subscription. Where the ORGANICRANKINGS.COM SAAS is remotely accessed, ORGANICRANKINGS.COM grants to Client a worldwide non-exclusive, non-transferable, non-assignable, non-sublicensable, limited right to access and use the ORGANICRANKINGS.COM SAAS. Client’s use of the ORGANICRANKINGS.COM SAAS may only be for its own internal commercial purposes. During Client’s Subscription, ORGANICRANKINGS.COM may make updates, modiﬁcations, alterations, changes, or removals to the ORGANICRANKINGS.COM SAAS and may update the functionality, user interface, usability, Documentation associated, other documentation, training and educational information of, and relating to the ORGANICRANKINGS.COM SAAS from time to time in its sole discretion and in accordance with this Agreement. Nothing in this Agreement obligates ORGANICRANKINGS.COM to offer any previously offered functionality within any updated version of the ORGANICRANKINGS.COM SAAS. In the event Client’s use of the ORGANICRANKINGS.COM SAAS for processing Client Data exceeds ORGANICRANKINGS.COM SAAS processing limits as further described in the Documentation or ORGANICRANKINGS.COM’s internal policies, ORGANICRANKINGS.COM reserves the right to charge the Client for such increased data volume capacity and shall provide Client notice of such charges in writing.
2.2 Third Party Software The ORGANICRANKINGS.COM SAAS does not include, and ORGANICRANKINGS.COM does not warrant, software obtained from any source other than ORGANICRANKINGS.COM including any Third Party Software, code, data, or other materials provided by Client or a third party. The use of the Third Party Software is subject to any agreements, terms, conditions, or licenses that are solely entered in by and between Client and the Third Party Software provider. Additionally, Client agrees that: (a) it shall abide by all Third Party Software agreements when using the ORGANICRANKINGS.COM SAAS; (b) Client’s use of the ORGANICRANKINGS.COM SAAS shall not interfere with the Third Party Software; (c) all agreements between Client and the Third Party Software provider are solely between Client and the Third Party Software provider and ORGANICRANKINGS.COM is not a party to any such agreements; and (d) Client shall indemnify ORGANICRANKINGS.COM for any claims against ORGANICRANKINGS.COM by the Third Party Software provider caused by Client’s use of the ORGANICRANKINGS.COM SAAS in conjunction with the Third Party Software.
2.3 Client Requirements Client shall be exclusively responsible for supervision, management and control of its use of the ORGANICRANKINGS.COM SAAS, including without limitation; (a) assuring proper machine conﬁgurations, audit controls and operating methods; (b) creating, modifying, entering or reentering Client Data; (c) monitoring and maintaining proper access controls and security for its authorized users; (d) ensuring that all authorized users abide by this Agreement, any Checkout Screen instructions, or other guidelines or instructions issued by ORGANICRANKINGS.COM; (e) complying with all reasonable instructions from ORGANICRANKINGS.COM regarding the ORGANICRANKINGS.COM SAAS; and (f) restricting access to any third parties that are not authorized to access the ORGANICRANKINGS.COM SAAS under this Agreement. The subscription is only permitted for Clients that provide SEO services, organizations that aggregate, act as any agency, or otherwise assist third party companies in facilitating SEO services are strictly prohibited from purchasing a subscription or accessing the ORGANICRANKINGS.COM SAAS. Each Client and each of Client’s Authorized Users must also enter into the ORGANICRANKINGS.COM User Agreement (“User Agreement”), where applicable, that governs Client’s use of the ORGANICRANKINGS.COM SAAS.
2.4 Subscription Change Where Client wishes to change the scope of its Subscription, Client may use its account dashboard to make changes as permitted by ORGANICRANKINGS.COM. Otherwise, the Parties may be required to execute an amendment to this Agreement as required by ORGANICRANKINGS.COM. ORGANICRANKINGS.COM has no obligation to permit any subscription changes requested by Client. Where Client wishes to make a subscription change, ORGANICRANKINGS.COM shall have no obligation to offer any Subscription to the ORGANICRANKINGS.COM SAAS at any pricing previously offered to Client.
2.6 Relationship with Authorized Users Please be aware that Client is solely responsible for any interactions with any Authorized Users through the ORGANICRANKINGS.COM SAAS. THE CLIENT AGREES TO HOLD ORGANICRANKINGS.COM FREE FROM RESPONSIBILITY FOR ANY LIABILITY OR DAMAGE THAT MIGHT ARISE OUT OF CLIENT’S ACCESS TO OR INTERACTIONS WITH ANY OF ITS AUTHORIZED USERS. ORGANICRANKINGS.COM IS NOT RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY AUTHORIZED USER, AND WILL NOT BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING IN CONNECTION WITH ANY OTHER PARTY ENCOUNTERED ON THE PLATFORM INCLUDING ANY AUTHORIZED USER. Client is solely responsible to any Authorized User for any opinions, advice, or information communicated through the ORGANICRANKINGS.COM SAAS. Any agreements entered into between Client and any party (including any Authorized User) are solely between the parties and ORGANICRANKINGS.COM is not a party to such agreements. Client shall indemnify and hold harmless ORGANICRANKINGS.COM from any claims related to any Authorized Users in accordance with this Agreement. Please be aware that any agreements entered into between an Authorized User and any Client may not abridge any contractual rights of ORGANICRANKINGS.COM as set forth within this Agreement. Client is solely responsible for resolving any issues with any Authorized Users that it encounters on the Platform including but not limited to issuing any refunds, credits, or other re-payment where applicable and ORGANICRANKINGS.COM cannot assist Clients in resolving any issues with an Authorized User. Client agrees that it shall clearly post all refund, payment, and other policies (collectively “Client Policies”) related to any services that it is offering through the ORGANICRANKINGS.COM SAAS to any Authorized Users and shall abide by all such Client Policies when using the ORGANICRANKINGS.COM SAAS.
2.7 Payment Integration The ORGANICRANKINGS.COM SAAS may permit integration with Third Party Software that accepts and processes payments on behalf of Client. Client shall verify and solely be responsible for ensuring that any payment processing with any Third Party Software is properly configured. ORGANICRANKINGS.COM cannot assist Client with any payment related issues including but not limited to account freezes, holds, chargebacks, or loss of payment processing functionality. Any payment issues must be resolved solely with such Third Party Software provider and ORGANICRANKINGS.COM is not a party to any such agreement.
3. Payment and Pricing.
3.1. Fees Client shall pay all Fees as speciﬁed in any Checkout Screen, all Subscription Fees are pre-paid. Any Fees shall be invoiced to Client from time to time. Where the due date is not otherwise speciﬁed in the Checkout Screen, all Fees are due upon issuance. CLIENT AGREES THAT ALL FEES MAY BE CHARGED ON A RECURRING BASIS UNTIL CLIENT TERMINATES ITS SUBSCRIPTION, CLIENT AUTHORIZES ORGANICRANKINGS.COM TO CHARGE CLIENT ON AN AUTOMATICALLY RECURRING BASIS AND AGREES THAT NO FURTHER CLIENT AUTHORIZATION IS REQUIRED TO CHARGE ITS PAYMENT METHOD STORED ON THE ORGANICRANKINGS.COM SAAS. All Fees are non-refundable. Unless otherwise speciﬁed, all Fees are in U.S. dollars. Client shall pay the Fees to ORGANICRANKINGS.COM in a method agreed upon between the Parties or as set forth within the Checkout Screen. Failure by Client to pay any Fees in a timely manner may result in the immediate termination or suspension of Client’s access to the ORGANICRANKINGS.COM SAAS.
3.2 Taxes Client is responsible for any duties, customs fees, or taxes (other than ORGANICRANKINGS.COM’s income tax) associated with the purchase of the ORGANICRANKINGS.COM SAAS provided by ORGANICRANKINGS.COM, (including any related penalties or interest) (“Taxes”), and shall pay the listed Fees without deduction for Taxes.
3.3. Prior to any Term (defined below) renewal as set forth within a Checkout Screen, ORGANICRANKINGS.COM may provide Client written notice that the Fees paid for the ORGANICRANKINGS.COM SAAS may increase prior to the commencement of the new term. Where ORGANICRANKINGS.COM provides such a notice of a Fee increase, Client may provide thirty (30) days written notice to terminate this Agreement prior to the commencement of the new term. Where Client does not provide written notice of termination such Fee increase shall be deemed accepted by Client at the commencement of the new Term.
3.4 Delinquencies Any late payments by Client may accrue interest charges (such charges, “Interest Charges”) in accordance with ORGANICRANKINGS.COM’s billing practices. Client shall pay to ORGANICRANKINGS.COM any Interest Charges as invoiced by ORGANICRANKINGS.COM. Where Client fails to timely pay any invoices, ORGANICRANKINGS.COM may at its discretion suspend its provision of ORGANICRANKINGS.COM SAAS to Client until such invoice is paid. In addition, Client will be responsible for any costs resulting from collections of any undisputed, overdue balance, including, without limitation, reasonable attorneys’ fees and court costs.
3.5 Additional Headcount The Subscription may be offered on a per head basis. Where the Subscription is offered on a per head basis, Client may increase the number of licenses purchased at any time by providing notice to ORGANICRANKINGS.COM. Any Fees related to an increase in licenses shall be prorated for the Term.
3.6 Refunds and Free Trials Any refund requests shall be granted at the sole discretion of ORGANICRANKINGS.COM. ORGANICRANKINGS.COM may offer free trials of the ORGANICRANKINGS.COM SAAS, at its discretion, nothing within this Agreement obligates ORGANICRANKINGS.COM to offer any free trials and ORGANICRANKINGS.COM may discontinue its free trial offerings at any time. After the lapse of Client’s free trial Client agrees that ORGANICRANKINGS.COM may charge Client’s payment method on file for any Fees owed to access the ORGANICRANKINGS.COM SAAS and Client agrees that no additional payment authorization is required.
4. Restrictions and Suspension.
4.1. Where applicable, all rights in the ORGANICRANKINGS.COM SAAS not expressly granted under this Agreement are reserved to ORGANICRANKINGS.COM or its licensors. Without limiting the foregoing, Client shall not, and shall not permit others under its control to (a) copy, modify, create a derivative work of, reverse engineer, decompile, translate, disassemble, or otherwise attempt to extract the source code of the ORGANICRANKINGS.COM SAAS or any component thereof; (b) assign, sublicense, transfer, lease, rent or otherwise distribute or make available the ORGANICRANKINGS.COM SAAS to any third party; (c) use the ORGANICRANKINGS.COM SAAS in a manner contrary to the instructions of ORGANICRANKINGS.COM or any Documentation provided; or (d) use the ORGANICRANKINGS.COM SAAS to create, deliver training on, improve (directly or indirectly) or offer a substantially similar product or service.
4.2. ORGANICRANKINGS.COM may suspend Client’s access to, or use of, the ORGANICRANKINGS.COM SAAS, if in ORGANICRANKINGS.COM’s discretion it believes that (a) there is a signiﬁcant threat to the functionality, security, integrity, or availability of the ORGANICRANKINGS.COM SAAS or any related content, code, or data (b) Client is accessing or using the ORGANICRANKINGS.COM SAAS to commit an illegal act; or (c) there is a violation of any agreements between the Parties. When reasonably practicable and lawfully permitted, ORGANICRANKINGS.COM will provide Client with advance notice of any such suspension. ORGANICRANKINGS.COM will use reasonable efforts to re-establish the ORGANICRANKINGS.COM SAAS promptly after ORGANICRANKINGS.COM determines that the issue causing the suspension has been resolved. Any suspension under this section shall not excuse Client from Client’s obligation to make payments under this Agreement.
5. Proprietary Rights and Client Data.
5.1. ORGANICRANKINGS.COM’s Proprietary Rights The ORGANICRANKINGS.COM SAAS is sold as a subscription and purchasing such subscription does not give Client any ownership rights to any ORGANICRANKINGS.COM Software. ORGANICRANKINGS.COM retains all right, title and interest in and to all the ORGANICRANKINGS.COM SAAS, along with all general techniques, methods, processes, routines, documentation, tools, concepts, inventions, patterns, algorithms, techniques and know-how developed previous to or during the Subscription term. Further, Client acknowledges that the structure, organization, and code of the ORGANICRANKINGS.COM SAAS and all software components thereof are proprietary to ORGANICRANKINGS.COM and/or ORGANICRANKINGS.COM's licensors and that ORGANICRANKINGS.COM and/or its licensors retains exclusive ownership of the ORGANICRANKINGS.COM SAAS, Documentation, trademarks, and any and all other Intellectual Property Rights relating to the ORGANICRANKINGS.COM SAAS, including all modiﬁcations, derivatives, and other software and materials developed hereunder by ORGANICRANKINGS.COM, and all copies thereof. Client shall not remove any proprietary, copyright, trademark, or service mark legend from any portion of any of the ORGANICRANKINGS.COM SAAS, including but not limited to any modiﬁcations, derivatives, compiled reports, Documentation, and other software and materials developed by ORGANICRANKINGS.COM. Client shall not sell, copy, reproduce, transfer, publish, disclose, display or otherwise make available the ORGANICRANKINGS.COM SAAS or any portions of the ORGANICRANKINGS.COM SAAS including any modifications, enhancements, derivatives, and other software and materials developed hereunder by ORGANICRANKINGS.COM to others in violation of this Agreement. Client agrees to make all necessary and reasonable efforts to comply with the above provisions in a manner which Client takes to secure and protect its own intellectual property. All rights not expressly granted are reserved for ORGANICRANKINGS.COM.
5.2. Trademarks “ORGANICRANKINGS.COM, Inc.”, “ORGANICRANKINGS.COM”, and any other trademarks and service marks adopted by ORGANICRANKINGS.COM to identify the ORGANICRANKINGS.COM SAAS and other ORGANICRANKINGS.COM products and services belong solely to ORGANICRANKINGS.COM. Client has no rights in such marks except as speciﬁed in writing between the Parties. Client may not publicly display the ORGANICRANKINGS.COM logo, its marks without express written consent from ORGANICRANKINGS.COM.
5.3. Feedback If Client provides ORGANICRANKINGS.COM any suggestions or feedback regarding the ORGANICRANKINGS.COM SAAS (“Client Feedback”), then ORGANICRANKINGS.COM may use the Client Feedback without obligation or payment to Client, and Client hereby irrevocably assigns to ORGANICRANKINGS.COM all right, title, and interest in that Client Feedback.
6. Term and Termination.
6.1. Agreement Term This Agreement will begin on the Effective Date and continue as set forth within the Checkout Screen and renew as stated. The initial term for the Subscription shall be stated at the Checkout Screen term (the “Initial Term”) and shall automatically renew for additional renewal terms (“Renewal Term(s)”) of equal length as the Initial Term (the Initial Term and Renewal Term are each collectively referred to as the “Term”). Where no Initial Term is stated, the Initial Term shall be monthly and each Renewal Term shall be monthly.
6.2. Termination for Breach. . Either Party may terminate the Agreement if the other Party breaches any material term of the Agreement and fails to cure that breach within one (1) day after receipt of written notice of such breach by the non-breaching Party.
6.3 Termination of Subscription Client may terminate the Subscription by cancelling through its user account located within the ORGANICRANKINGS.COM SAAS. Where Client terminates its subscription during any Term, Client’s subscription shall continue through the end of such Term and Client shall be obligated to pay for any fees incurred during such Term. ORGANICRANKINGS.COM may terminate this Agreement or Client’s Subscription for convenience by providing notice to Client through its user account or email provided.
6.4. Effect of Termination Upon expiration or termination of this Agreement: (a) the rights granted by one Party to the other will immediately cease except where such right is required to perform an obligation set forth in this Agreement; (b) all Fees pre-paid to ORGANICRANKINGS.COM shall not be refunded and Fees accrued until termination and owed by Client are immediately due upon receipt of a ﬁnal invoice from ORGANICRANKINGS.COM; and (c) upon request, each Party will use commercially reasonable efforts to return or destroy all Conﬁdential Information of the other Party and certify that it has done so in writing. Where Client has timely paid for all fees, Client at ORGANICRANKINGS.COM’s discretion may be able to download and export any Client Data stored within the ORGANICRANKINGS.COM SAAS.
7.1. Conﬁdentiality Obligation. “Conﬁdential Information” means any information disclosed by a Party about its business affairs, products and services, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, designated as conﬁdential orally or in writing by either Party, or any information that the receiving Party knows, or has reason to know, is conﬁdential or proprietary based upon its treatment by the disclosing Party. ORGANICRANKINGS.COM shall use industry standard security and encryption measures to handle any Client Confidential Information stored on the ORGANICRANKINGS.COM SAAS.
7.2. Sharing Client Data. Through the ORGANICRANKINGS.COM SAAS, Client may be able to share Confidential Information with third parties. Client is solely responsible for ensuring that any Confidential Information shared with a third party remains confidential and for any access controls related to any Confidential Information stored on the ORGANICRANKINGS.COM SAAS. ORGANICRANKINGS.COM shall have no liability to Client for Client or its Authorized User’s sharing of any Confidential Information or Client Data shared with any third parties.
8.1 ORGANICRANKINGS.COM SAAS Warranty. ORGANICRANKINGS.COM represents and warrants that the ORGANICRANKINGS.COM SAAS will generally conform in accordance with any Documentation provided. Client’s sole and exclusive remedy, and ORGANICRANKINGS.COM’s entire liability for breach of the limited warranty in this Section 8.1, shall be correction of the warranted non-conformity or, if ORGANICRANKINGS.COM fails to correct the warranted non-conformity after using reasonable commercial efforts, ORGANICRANKINGS.COM may terminate access to the non-conforming ORGANICRANKINGS.COM SAAS and refund the fees paid by Client for the ORGANICRANKINGS.COM SAAS for the remainder of the term (starting on the date Client reported the non-conformity). ORGANICRANKINGS.COM represents and warrants that it shall exercise commercially reasonable efforts to keep the ORGANICRANKINGS.COM SAAS free of all computer viruses, Trojan horses, and comparable malicious code intended to harm the Client’s systems (collectively, “Virus”) provided that ORGANICRANKINGS.COM shall not be responsible for any such Virus that is placed on the ORGANICRANKINGS.COM SAAS by a Client, or its Authorized Users or any third party.
8.2 Authority. Each Party warrants that it has full power and authority to enter into this Agreement.
8.3 No Lawsuits. Each Party represents and warrants that entering into this Agreement shall not, to the best of the Party’s knowledge, violate a third-party right or interest or that there is any pending lawsuit or litigation that would preclude it from entering into this Agreement.
8.4. Client acknowledges that any Client Data or reports generated, obtained or acquired through the use of the ORGANICRANKINGS.COM SAAS is used at Client's sole risk and discretion. As Client inputs all Client Data, ORGANICRANKINGS.COM is not liable or responsible for any results generated through Client’s use of the ORGANICRANKINGS.COM SAAS.
8.5. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, NEITHER ORGANICRANKINGS.COM NOR ITS AFFILIATES PROVIDE ANY OTHER REPRESENTATIONS OR WARRANTIES REGARDING THE ORGANICRANKINGS.COM SAAS, AND TO THE FULLEST EXTENT PERMITTED BY LAW DISCLAIMS ALL OTHER WARRANTIES, REPRESENTATIONS, TERMS AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, QUALITY, FREEDOM FROM VIRUS, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND ANY WARRANTIES, TERMS AND CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM ORGANICRANKINGS.COM OR ELSEWHERE WILL CREATE ANY WARRANTY, TERM OR CONDITION UNLESS EXPRESSLY STATED IN THIS AGREEMENT.
9. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY OR ITS AFFILIATES BE LIABLE FOR DAMAGES OTHER THAN DIRECT DAMAGES, INCLUDING THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR TECHNOLOGY, LOSS OF PROFITS, OR FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR INDIRECT DAMAGES ON ANY THEORY OF LIABILITY, WHETHER IN STATUTE, CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE TOTAL LIABILITY OF EITHER PARTY EXCEED THE LESSER OF THE TOTAL AMOUNTS PAID BY CLIENT TO ORGANICRANKINGS.COM DURING THE SIX (6) MONTHS PRIOR TO THE DATE THE CLAIM ARISES, OR TWENTY FIVE THOUSAND US DOLLARS ($25,000), WHICHEVER IS LESSER. THE LIABILITY LIMITATIONS IN THIS PARAGRAPH (AND OTHERWISE IN THE AGREEMENT) DO NOT LIMIT OR EXCLUDE DAMAGES FOR BODILY INJURY OR DEATH OR OTHER DAMAGES THAT UNDER APPLICABLE LAW CANNOT BE LIMITED OR EXCLUDED. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO THE FOLLOWING SECTIONS 10 (INDEMNITY) AND 3 (PAYMENT AND PRICING) AND ANY FEES OWED.
10.1. IP Indemnity. ORGANICRANKINGS.COM shall indemnify and hold Client, its directors, officers, or employees, harmless from and against relating to or arising out of any third-party claim alleging that the ORGANICRANKINGS.COM SAAS infringes or misappropriates any patent, copyright, or trade secret of a third party, and ORGANICRANKINGS.COM shall pay all damages ﬁnally awarded or costs of settlement of the claim provided that Client: (1) provides ORGANICRANKINGS.COM prompt written notice of any claim; (2) gives ORGANICRANKINGS.COM sole control of the defense and settlement of the claim; and (3) provides all reasonable assistance in connection with the claim. If Client’s rights to use the ORGANICRANKINGS.COM SAAS are, or in ORGANICRANKINGS.COM’s opinion could be, enjoined due to an indemniﬁed claim, then ORGANICRANKINGS.COM may, at its sole discretion and expense: (a) procure for Client the right to continue using the ORGANICRANKINGS.COM SAAS according to the terms of this Agreement, (b) modify the ORGANICRANKINGS.COM SAAS such that it operates with materially equivalent functionality without infringing or misappropriation, or (c) if neither of the foregoing options is commercially reasonable, terminate the Subscription and refund any Fees paid for the Subscription prior to any indemniﬁcation claim in this Section 10.1.
10.2 Exclusions. The indemnity provided by ORGANICRANKINGS.COM under this Agreement does not extend to claims arising from or relating to (a) Client’s use of any Third Party Software provided by Client; (b) modiﬁcations by Client to the ORGANICRANKINGS.COM SAAS not provided by or approved in writing by ORGANICRANKINGS.COM; (c) Client’s use of the ORGANICRANKINGS.COM SAAS in combination with any data, software, or hardware not provided by ORGANICRANKINGS.COM to the extent the alleged infringement would not have occurred without the combination; (d) Client’s use of the ORGANICRANKINGS.COM SAAS that is outside the scope of permissible use as deﬁned by ORGANICRANKINGS.COM; or (e) allegedly infringing activities that continue after ORGANICRANKINGS.COM has informed Client in writing of and made available to Client at no additional charge a version of the ORGANICRANKINGS.COM SAAS that would have avoided the alleged infringement.
10.3. Additional Indemnity. Client will indemnify and hold ORGANICRANKINGS.COM, its directors, managers, oﬃcers, members, employees and agents, harmless from and against all liabilities, losses, costs, damages and expenses, (including reasonable attorneys' fees and court costs), relating to or arising out of any third-party claim alleging: (a) any information or results obtained through use of the ORGANICRANKINGS.COM SAAS by Client; (b) any claim arising from Client or its Authorized User’s use of the ORGANICRANKINGS.COM SAAS; and (c) that the Client Data used in connection with the ORGANICRANKINGS.COM SAAS violates, infringes or misappropriates the Intellectual Property Rights of a third party.
11. Availability and Support
11.1 Availability. The ORGANICRANKINGS.COM SAAS shall be generally available and accessible; however, ORGANICRANKINGS.COM cannot make any guarantees regarding any up-time or availability. From time to time the ORGANICRANKINGS.COM SAAS may be unavailable due to regular maintenance, repair, or system updates generally and where practicable ORGANICRANKINGS.COM shall notify Client of such unavailability.
11.2 Support Levels. During the term of this Agreement ORGANICRANKINGS.COM shall maintain generally available support. Support requests shall be resolved by priority level at ORGANICRANKINGS.COM’s discretion. For any support issues please contact firstname.lastname@example.org.
12.1. Publicity. Client may state publicly that it is a user of the ORGANICRANKINGS.COM SAAS, and ORGANICRANKINGS.COM may identify Client as a user of the ORGANICRANKINGS.COM SAAS, provided that any such statements shall conform with the trademark usage guidelines provided by one Party to the other.
12.2. Assignment. The Agreement may not be assigned by either Party by operation of law or otherwise, without the prior written consent of the other Party, which consent will not be unreasonably withheld. Notwithstanding the foregoing, either Party may assign this Agreement in its entirety (including the Checkout Screen), without consent of the other Party, in connection with a merger, acquisition, corporate reorganization, or the sale of all or substantially all of the assets of the business to which the Agreement relates.
12.3. Conﬂicting Terms. Except as otherwise set forth. this Agreement shall supersede all other agreements between the Parties including the User Agreement. Where a Checkout Screen directly and explicitly supersedes or modifies any terms within this Agreement, such language shall supersede this Agreement.
12.5. Export Controls. Client agrees to comply with all export and re-export restrictions and regulations of the Department of Commerce and any other United States or foreign agencies and authorities in connection with Client’s use of the ORGANICRANKINGS.COM SAAS. In particular, but without limitation, the ORGANICRANKINGS.COM SAAS may not, in violation of any laws, be exported or re-exported (1) into any U.S. embargoed country or (2) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. Client represents and warrants that Client are not located in, under the control of, or a national or resident of any such country or on any such list.
12.6. Force Majeure. Except for the timely payment of Fees, neither Party will be liable for failure or delay in its performance under the Agreement to the extent caused by circumstances beyond its reasonable control including but not limited to an act of God, war, insurrection, riot, strike or labor dispute, contagion, shortage of materials, ﬁre, explosion, ﬂood, government requisition or allocation, breakdown of or damage to plant, equipment or facilities, interruption, internet or telecommunications outage, fuel supplies or electrical power, embargo, boycott, order or act of civil or military authority, legislation, regulation or administrative rules, or any inability to obtain or maintain any governmental permit or approval.
12.7. Governing Law, Arbitration, and Class Action. This Agreement shall be governed by the laws in force in the state of North Carolina. The offer and acceptance of this contract is deemed to have occurred in the state of North Carolina. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement and is hereby expressly excluded. Any dispute relating in any way to Client’s use of the ORGANICRANKINGS.COM SAAS (including any Authorized User’s use) shall be submitted to confidential arbitration in Raleigh, North Carolina. Any and all disputes arising out of or relating to this Agreement or usage of the ORGANICRANKINGS.COM SAAS, including fraud in the inducement, whether in contract or tort, law or equity, shall be resolved by final arbitration before one arbitrator in accordance with the then applicable rules of Judicial Arbitration and Mediation Implementation Services, Inc. and its then binding rules found at https://www.jamsadr.com/rules-comprehensive-arbitration/. Arbitration shall be conducted by one (1) arbitrator and in English. Judgment upon any award rendered by the arbitrator may be entered by any state or federal court having jurisdiction thereof. If any party to this Agreement brings an action to enforce its rights hereunder or to interpret or apply this Agreement, the prevailing party shall be entitled to recover all of its costs and expenses, including legal interest thereon and all of its reasonable attorneys’ fees and costs incurred in connection with such action. Any claim or cause of action arising out of, related to or connected with this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever banned. The dispute resolution procedures in this section shall not apply prior to a party seeking a provisional remedy related to claims of misappropriation or ownership of intellectual property, confidential information, or trade secrets such remedies abovementioned requiring injunctive relief shall be heard in a court of competent jurisdiction located within Raleigh, North Carolina.
CLIENT UNDERSTANDS AND AGREES THAT CLIENT AND ORGANICRANKINGS.COM MAY EACH BRING CLAIMS IN ARBITRATION AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT ON A CLASS, COLLECTIVE ACTION, OR REPRESENTATIVE BASIS. CLIENT UNDERSTANDS AND AGREES THAT THE PARTIES BOTH ARE WAIVING THE RIGHT TO PURSUE OR HAVE A DISPUTE RESOLVED AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE OR REPRESENTATIVE PROCEEDING.
12.8. Independent Contractors. The Agreement will not be construed as creating an agency, partnership, joint venture or any other form of association, for tax purposes or otherwise, between the Parties; the Parties will at all times be and remain independent contractors.
12.9. No Third-Party Beneﬁciaries. The Agreement does not confer any beneﬁts on any third party unless it expressly states that it does. This Agreement has been mutually drafted and any ambiguity shall be defined by its plain meaning.
12.10. Notices. All notices shall be provided to Client through Client’s account or email address listed within Client’s account. Any notices for arbitration or disputes shall be provided in writing to ORGANICRANKINGS.COM. Inc., 7815 Clover Creek Ct, Raleigh, NC 27613 ATTN: Arbitration (delivery confirmation and receipt required). All other notices may be provided electronically to email@example.com. Notice will be treated as given on receipt, as veriﬁed by written or automated receipt or by electronic log (as applicable).
12.11. Severability and Waiver. In the event that any provision of the Agreement (or any portion hereof) is determined by a court of competent jurisdiction to be illegal, invalid or otherwise unenforceable, the provision (or portion) will be enforced to the extent possible consistent with the stated intention of the Parties, or, if incapable of enforcement, will be deemed to be severed and deleted from this Agreement, while the remainder of the Agreement will continue in full force. The waiver by either Party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach.
12.12. Survival. Any portion of the Agreement that a reasonable Party would deem to survive termination of this Agreement shall survive including but not limited to: Payment Obligations, Restrictions, Proprietary Rights, Effect of Termination, Indemniﬁcation, Conﬁdentiality, Arbitration, Choice of Law, Client Data, Limitation of Liability, relevant Checkout Screen provisions, and Miscellaneous.
The Parties agree to this Agreement and all terms set forth within the Checkout Screen.