Terms and Conditions
Effective: March 24, 2021
IMPORTANT: PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE APPLYING FOR, ACCEPTING, OR USING A PLASTICITY ONLINE ACCOUNT OR THE PLASTICITY NATURAL LANGUAGE PROCESSING SERVICES. BY USING, APPLYING FOR, OR ACCEPTING OUR SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ THESE TERMS AND CONDITIONS, THAT YOU UNDERSTAND THEM, AND THAT YOU AGREE TO BE BOUND BY THEM. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT APPLY FOR, ACCEPT, OR USE A PLASTICITY ONLINE ACCOUNT OR THE PLASTICITY NATURAL LANGUAGE PROCESSING SERVICES.
- Plasticity Inc. (“Plasticity”) grants to you a limited, non-exclusive, non-transferrable and revocable license to Plasticity online natural language processing services as well as any documentation, files, or website information accompanying the services (“Services”) to the extent necessary for you to create a natural language interface that operates solely in connection with your devices (“Devices”) and/or software services/applications (“Applications”). Any violation of the terms of these Terms and Conditions shall automatically revoke the license granted herein.
- Services means paid services, which may include Applications, application programming interfaces (“APIs”), and/or software consulting or development (collectively, “Paid Services”), which, if available, must be purchased. Services may be accessed in several ways, depending on your needs and as laid out in an applicable purchase order or statement of work, including (1) software-as-a-service (“SaaS”) using cloud-hosted APIs, (2) SaaS using cloud-hosted software interfaces, (3) on-premise APIs, and (4) on-premise interfaces.
The licenses granted herein are contingent upon Plasticity's receipt of the applicable license fees and taxes due for the Paid Services. Fees paid for Paid Services shall allow you to use Paid Services for the duration of the subscription service, as applicable, and as selected by you during your registration of the Paid Services (“Subscription Period”). Any fees posted to our website for use of the Paid Services are subject to change without notice. License fees may vary depending on the usage of the Services. These fees are owed regardless of whether the Services are actually used. Refunds may be given for any unused Services or any early termination of the Subscription Period on a case-by-case basis.
- If these Terms and Conditions pertain to a trial, beta, or evaluation license, then the licenses granted under these Terms and Conditions will terminate upon the expiration or cancellation of the trial or evaluation period. You agree to use the Services and any services only for the duration of the trial or evaluation period and only for evaluation or testing purposes. All such licenses are limited to one (1) per customer, per promotion or beta test.
- The licenses granted herein are only valid if: (a) the Services are NOT modified in any manner; (b) all copyright and proprietary notices or labels connected to the Services are maintained in their original format; (c) the Services are only installed and used in accordance with your network security policies; (d) you possess the necessary authority and power to install the Services; (e) you promptly pay all license fees when due; (f) these Terms and Conditions are accepted without any modification; (g) you have not breached these Terms and Conditions in any manner; (h) you have not used the Services other than in compliance with applicable laws; (i) you have not “framed,” distributed, resold, or permitted access to the Services by any third party other than for its intended purposes; (j) you have a not interfered with the Services or operation of any Plasticity third-party networks, Plasticity servers, or other Plasticity infrastructure, or disrupted any other user's access to the Services; (k) you have not reverse engineered, attempted to gain unauthorized access to the Services, or attempted to discover the underlying source code or structure of the Services; (l) you have not submitted to the Services any virus, malware or any unauthorized, malicious or destructive feature that is designed to alter any software, program, data, device, system or service, or provide unauthorized access to the Services; (m) you have not used any robot, spider, data scraping tool, extraction tool, or similar mechanism with respect to the Services; (n) you have not breached or otherwise bypassed any security or authentication measures; (o) you have not used the Services for phishing scams; and (p) you have not accessed, tampered with, or used nonpublic areas within the Services or shared areas within the Services to which you have not been invited.
You agree that you will not, and will not permit others, to use the Services to: (a) use, store, share, host, copy, distribute, display, publish, transmit, or send objectionable content (prohibited content includes content that is or could be deemed: offensive, inflammatory, hateful, defamatory, discriminatory, obscene, abusive, invasive of privacy, or harmful to others); (b) distribute unwanted, unsolicited, or harassing mass e-mail or send unwanted promotional or commercial content, e.g., spam; (c) infringe or misappropriate any Plasticity or third-party copyright, trademark, or other intellectual property, proprietary right, license right, or legal content protection; (d) mislead or confuse others by pretending to be someone else or pretending to represent an organization you do not represent; or (e) distribute others’ personal and confidential information (e.g. credit card numbers, confidential national ID numbers, or account passwords) without their permission.
If you encounter content that you believe violates any of the above provisions/restrictions, please report it to Plasticity as soon as feasibly possible at email@example.com. Plasticity reserves the right, but does not assume the obligation, to investigate any violation of these Terms and Conditions or misuse of the Services.
- Each set of login credentials for the Services may be used only by a single, individual user. You agree to promptly notify Plasticity of any unauthorized access or use of which you become aware. You will be responsible for all use and misuse of the Services that occur under your user login credentials, and for any breach of these Terms and Conditions.
- The Services require registration or activation to be used properly. You agree to provide accurate and complete information on all registration forms. Failure to complete the registration or activation may limit your ability to use the Services or may disable the Services from functioning. When registering or activating Services, you may be required to select a username and password. Maintaining the confidentiality of this password and username is your responsibility, and Plasticity is not responsible for any loss or damage arising from unauthorized access to your account or your failure to comply with this section. You are fully responsible for any activities that occur under your username even if unauthorized. You must notify Plasticity immediately of any unauthorized use of your account.
- By registering for a Plasticity account, you agree that you are older than 18 years of age.
- The licenses granted herein are only for the purpose of allowing you to connect to and use the Services for your personal or internal business use. You will not use the services to perform natural language processing for any third parties.
- Third-party applications and web services developed and owned by third parties (“Partner Apps”) may be available to you for use with the Services. These applications and services are provided by third parties and are not part of our Services, except where otherwise specified. Third-party applications and services are subject to any end user license agreements that accompany them, and we have no liability whatsoever with respect to any third-party applications and services. Notwithstanding the foregoing, the payment provisions (and only the payment provisions) of these Terms and Conditions apply with respect to Partner Apps purchased by you under an applicable Order.
- Subject to these Terms and Conditions and in consideration of the fees specified in any applicable order or statement of work that describes any “Professional Services” (meaning, implementation, configuration, integration, software consulting or software/application development, training, advisory, and other professional services), Plasticity may provide you with Professional Services. Plasticity hereby grants you a non-exclusive, non-transferable right to access and use all software, code, materials, ideas, deliverables, and items that are conceived, made, discovered, written, or created by Plasticity personnel related to providing the Professional Services during the Subscription Term for your internal business purposes, pursuant to these Terms and Conditions.
- Plasticity may provide you with a web interface and an API protocol based interface necessary to use the Services (“Interface”), solely for your internal use. You agree to access the Services only through the Interface and will not create any derivative works of the Interface or the Services. You agree not to circumvent any limitations to the Services or Interface as implemented by Plasticity.
- When using the Services and any related services, Plasticity will save a copy of each record you designate as requiring storage. The saved records will be transferred over the Internet to a server operated by Plasticity or an affiliate or partner of Plasticity. Plasticity disclaims all liability for the Services, including any resulting from lost or compromised data. Plasticity does not make any warranty that your data will be stored safely or securely. You give Plasticity permission to transmit all records designated by you as requiring storage to a remote data center operated by Plasticity or an affiliate or partner of Plasticity Inc.
- Plasticity does not maintain a backup copy of the data stored on our servers and does not guarantee the information against loss or destruction.
- The Services are being licensed, not sold. These Terms and Conditions do not grant any ownership rights to you and give you only a limited license to use the Services during the term of these Terms and Conditions. The Services and all related intellectual property rights, whether under copyright, trade secret, patent, or trademark laws, are owned by Plasticity and/or its licensors. Plasticity may pursue all legal remedies for use of the Services in violation of these Terms and Conditions. No license is granted herein to resell, create derivative works, reverse engineer, repackage, or modify the Services. Use of the Services within your commercial enterprise for internal purposes in accordance with these Terms and Conditions is expressly allowed.
- The Services contain material that is protected by United States and foreign intellectual property laws, including copyright, trade secret, and patent law. All rights not granted to you herein are expressly reserved by Plasticity. You may not remove any copyright or other proprietary notice of Plasticity from any copy of the Services.
- Plasticity may modify or discontinue any of its Services or the related Services without notice. Plasticity will provide notice of material changes to the Services or changes to these Terms and Conditions by posting such changes at Plasticity's website which shall be your sole notice of such changes. You agree and acknowledge that you will periodically check the website to inform yourself of any such changes.
- In connection with the operation of the Services, Plasticity receives, utilizes, and analyzes communications sent to Plasticity and any of your stored records (“Submissions”). You retain ownership of your Submissions. However, notwithstanding anything to the contrary, you hereby grant Plasticity a license to: (i) use and disclose your Submissions to provide the Services; (ii) use your Submissions for Plasticity's internal business purposes; (iii) disclose your Submissions as may be required by law or legal process; and (iv) otherwise use and disclose your Submissions in accordance with these Terms and Conditions. Without limiting the foregoing, you agree that Plasticity is expressly and irrevocably authorized to utilize, analyze, modify, reproduce, publish, share, create derivative works of, or otherwise exercise all rights in your Submissions and any analytics, statistics or other data related to or derived from your Submissions and/or your use of the Services for any purpose, provided that such data is in aggregate and anonymized form (“Aggregate Data”). Subject to the records licenses, you acknowledge and agree that Plasticity will exclusively own all right, title, and interest in and to all Aggregate Data and other output data generated by the Plasticity Services. Notwithstanding anything to the contrary, if you ever have any ownership interest in any Aggregate Data or output data, you hereby assign to Plasticity all such right, title, and interest in and to such Aggregate Data and output data, including all intellectual property rights therein. You also hereby grant each user of the Services a non-exclusive license to access your Submissions in accordance with your account settings through the Services, and to use, reproduce, distribute, display and perform on such records as permitted through the functionality of the Services and under these Terms and Conditions.
- You agree that Plasticity will have a perpetual right to use and incorporate any feedback or suggestions for enhancement that you provide to Plasticity regarding the Services without any obligation of compensation.
- The fees for using the Paid Services may be set forth on the Plasticity website, which may be modified at any time by Plasticity. Continued use of the Paid Services and the non-termination of your account with Plasticity after fee changes are posted to the website constitutes your acceptance of the prices as modified. You agree to pay all fees fully on a net 30 basis and in accordance with the terms of any invoice.
- The credit card information provided to Plasticity's third party payment processor to pay for the Paid Services shall be automatically charged for the Paid Services at the conclusion of each period. In the event that Plasticity or a third party payment processor is unable to bill the credit card on file or you request that Plasticity not bill the credit card, you shall be solely responsible for any renewal payment required. In the event that payment is not made, the Paid Services and services may become unavailable to you and Plasticity may terminate these Terms and Conditions without notice to you.
- If any charges are rejected by your credit card issuer, then Plasticity may deactivate your account until payment is successfully received. Plasticity may deactivate any account that has a disputed charge until Plasticity, in its sole discretion, determines the dispute resolved.
- You must provide Plasticity notice of any billing problems or disputes within 60 days after they first appear on the statement you receive from your bank, credit card company, or other billing company. Failure to notify Plasticity of the problem within the 60-day period will result in your acceptance of the charges and you waive the right to dispute such problems or discrepancies. Failure to use your account will not be deemed a basis for refusing to pay any charges. Plasticity does not provide any refunds for any Services.
- Except as prohibited by law, Plasticity may charge a late fee of one and one-half percent (1.5%) per month on past due amounts. You will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Plasticity to collect any amount that is not paid when due. Plasticity may accept payment in any amount without prejudice to Plasticity's right to recover the balance of the amount due or to pursue any other right or remedy. Amounts due by you to Plasticity may not be withheld or offset against amounts due or asserted to be due to you by Plasticity. Other than income taxes imposed on Plasticity, you will bear all taxes, duties, VAT and all other governmental charges (collectively, “taxes”) resulting from these Terms and Conditions. If you are exempt from any applicable taxes, you will provide evidence reasonably satisfactory to Plasticity of your tax-exempt status. If you require a purchase order, vendor registration form, or other documentation, such requirement will in no way affect or delay your obligation to pay any amounts due hereunder.
Restrictions and Representations.
- The Services are solely for lawful purposes and use. You are responsible for ensuring that all use of the Services is in accordance with these Terms and Conditions. You are solely responsible for ensuring that your use of the Services complies with all applicable laws, statutes, ordinances, regulations, rules and other government authority. The Services are provided subject to these standard commercial Terms and Conditions and qualifies as a “commercial item” as defined at 48 C.F.R. 2.101, consisting of “commercial computer software”, “commercial computer software documentation” and “commercial services”. If you are a U.S. governmental entity, then you acknowledge and agree that (i) use, duplication, reproduction, release, modification, disclosure, or transfer of the Services and any related documentation of any kind, including, without limitation, technical data and manuals, will be restricted in accordance with Federal Acquisition Regulation (“FAR”) 12.212 for civilian purposes and Defense Federal Acquisition Regulation (“DFAR”) Supplement 227.7202 for military purposes, (ii) Plasticity was developed fully at private expense, and (iii) all other use of the Services except in accordance with the license(s) granted above is strictly prohibited. The Services shall not be used to display, support, develop, supply or market the physical effects of violence (including, without limitation, blood, gore and organs) on humans or human-like characters, explicit sexual content, sex crimes, disparagement of ethnic or religious groups, racial epithets, profane language or hate speech.
- You agree not to, and will not assist, encourage, or enable others to:
- use any robot, spider, site search/retrieval application, or other automated device, process or means to access, retrieve, scrape, or index any portion of the Services;
- access, retrieve or index any portion of the Plasticity site for purposes of constructing or populating a searchable database;
- reverse engineer any portion of the Plasticity site;
- You represent and warrant that you are not located in, and will not modify, export or re-export (either directly or indirectly) the Services to, any country or entity under United States restrictions or to any country or entity subject to applicable trade sanctions. The United States restricted country and persons list is subject to change without notice from Plasticity, and you must comply with the list as it exists in fact. PLASTICITY SHALL NOT BE LIABLE FOR YOUR VIOLATION OF ANY SUCH EXPORT OR IMPORT LAWS, WHETHER UNDER UNITED STATES LAW OR FOREIGN LAW.
Representations and Warranties; Disclaimers.
- You represent and warrant that you have the necessary authority to enter into these Terms and Conditions on behalf of yourself or the entity you are representing, as applicable. If you are accepting these Terms and Conditions in relation to your use of the Services on behalf of any entity, you acknowledge and agree that these Terms and Conditions will be enforceable against such entity.
- If you have paid fees under these Terms and Conditions for the SaaS Services, Plasticity represents and warrants that the SaaS Services will operate substantially as described in any online product descriptions written or created by Plasticity and made available on Plasticity's Site. You must notify Plasticity in writing of any alleged failure by Plasticity to comply with this warranty within 30 days of any such failure. Upon receipt of such notice, Plasticity will either: (a) use commercially reasonable efforts to cure or correct the failure, or (b) terminate the applicable order or statement of work and issue a prorated refund for the terminated portion of the SaaS Services. The foregoing sets forth your exclusive rights and remedies and Plasticity's sole liability for breach of the limited warranty specified herein.
- If you have paid fees under these Terms and Conditions for Professional Services, Plasticity represents and warrants that the Professional Services will be provided in a competent and workmanlike manner in accordance with any purchase order or statement of work, as applicable. You must notify Plasticity in writing of any alleged failure by Plasticity to comply with this warranty within 30 days following delivery of the Professional Services. Upon receipt of such notice, Plasticity will either: (a) use commercially reasonable efforts to cure or correct the failure, or (b) terminate the Professional Services and issue a prorated refund for the terminated portion of the Professional Services. The foregoing sets forth your exclusive rights and remedies and Plasticity's sole liability related to the limited warranty specified herein.
- You acknowledge that the Services may experience periods of downtime, including but not limited to scheduled maintenance. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH ABOVE IN THIS SECTION, PLASTICITY MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SERVICES, AND ANY INFORMATION OR MATERIALS RELATED THERETO OR MADE AVAILABLE THEREFROM, WHETHER EXPRESS OR IMPLIED. PLASTCITY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ACCURACY. PLASTICITY DOES NOT WARRANT THAT THE SERVICES WILL BE ERROR-FREE, OPERATE WITHOUT INTERRUPTIONS OR DOWNTIME, MEET YOUR REQUIREMENTS OR NEEDS, OR OPERATE IN ACCORDANCE WITH ANY ACCOMPANYING DOCUMENTATION. PLASTCITY MAKES NO REPRESENTATIONS AND WARRANTIES WITH RESPECT TO ANY THIRD-PARTY APPLICATIONS AND EXPRESSLY DISCLAIMS ALL RESPONSIBILITY THEREFOR. PLASTICITY IS NOT LIABLE FOR ANY DELETED, INACCESSIBLE, OR DISCLOSED DATA.
- Except as otherwise provided herein, Plasticity is under no obligation to provide technical or customer support for the Services. You are solely responsible for properly installing and using the Services. You are responsible for the procurement of any hardware or services required to use the Services, including any computers, servers, or Internet access.
- The Services are provided over the Internet. As such, the Services are subject to the operation of the Internet and telecommunications infrastructures as well as the operation of your Internet connection services, all of which are beyond the control of Plasticity. Plasticity does not warrant that the services will be uninterrupted or that you will be able to access or use the Services at the location and times of your choosing.
- Some jurisdictions do not allow or limit the exclusion of warranties. In such jurisdiction, these provisions shall apply to you to the maximum extent allowed by law.
Limitation of Liability.
- Nothing herein shall exclude or limit the liability of either party for death or personal injury resulting from the negligence of that party or its directors, officers, employees, contractors or agents, or in respect of fraud or of any statements made fraudulently by either party.
- YOU ARE ULTIMATELY RESPONSIBLE FOR ANY LOSSES OR DAMAGES INCURRED BY YOU AS A RESULT OF USING OR INSTALLING THE SERVICES. PLASTICITY WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF YOUR USE OF OR INABILITY TO USE THE SERVICES, EVEN IF PLASTICITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF THE DAMAGE WAS FORESEEABLE.
- EXCEPT AS STATED IN SECTION 7.1, PLASTICITY AND ITS AFFILIATES, OFFICERS, LICENSORS, AND/OR CONTRACTORS SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT THAT A STATE DOES NOT PERMIT THE EXCLUSION OR LIMITATION OF LIABILITY AS SET FORTH HEREIN, PLASTICITY’S LIABILITY IS LIMITED TO THE FULL EXTENT PERMITTED BY LAW IN SUCH STATE.
- ALL MATERIAL AND/OR DATA DOWNLOADED OR OBTAINED THROUGH THE SERVICES OR RELATED SERVICES IS AT YOUR OWN RISK. YOU ARE SOLELY RESPONSIBLE FOR THE USE OR YOUR POSSESSION OF SUCH DATA OR MATERIAL. PLASTICITY DOES NOT ACTIVELY MONITOR ANY INFORMATION OR MATERIAL TRANSFERRED THROUGH ITS SERVICES AND CANNOT WARRANT THE CONTENT OF SUCH MATERIAL OR DATA.
- Except for actions and claims related to a party's indemnification obligations, all actions or claims relating to these Terms and Conditions must be brought within one (1) year from the date when the cause of action occurred.
- These Terms and Conditions are effective until terminated by you or by Plasticity. The Subscription Period is selected during registration or upgrade and are typically for one (1) year terms, but multi-year terms are also available. Any additional Services are licensed only for the Subscription Period selected during such registration or upgrade. The Subscription Period may be renewed by paying an additional license fee as may be set forth on the Plasticity website. The renewal fee may be charged automatically to the credit card number provided to Plasticity's third party payment processor to initially pay for the Services (Plasticity does not store credit card information).
- Services may be terminated upon 60 days’ written notice, by notifying Plasticity of your intent to terminate these Terms and Conditions. Notification of termination must be sent by email to firstname.lastname@example.org. Your termination will be effective upon Plasticity's receipt and processing of the email. Processing may take up to two (2) business days.
- Plasticity may terminate these Terms and Conditions at any time and for any reason. Plasticity may monitor its systems for excessive consumption of network resources and may take technical or other remedies deemed necessary to prevent or eliminate any excessive consumption. If Plasticity deems your use to be excessive, Plasticity may terminate your account or adjust the price of the Services.
- Either party may terminate a Subscription Term immediately if the other party breaches any material provision of these Terms and Conditions, an applicable purchase order or statement of work, and fails to cure that breach within 30 days of written notice from the non-breaching party.
- Upon termination, you must immediately cease using the Services. Upon termination, Plasticity may disable further use of the Services or related Services without further notice and may delete, remove, and erase any account information and any data stored by Plasticity. Such deletions are in Plasticity's sole discretion and may occur without notice to you. No refunds shall be given for any reason.
Branding and Attribution.
- You agree to display any attribution(s) required by Plasticity Inc. as described in any documentation for the Services. Without limiting the foregoing, users must display “Powered by Plasticity” and a link to https://plasticity.ai on any Device or Application connected to the Services. Plasticity grants to you a limited, freely revocable, nontransferable, non-sublicensable, nonexclusive license during the term of your subscription to display Plasticity marks solely for the purpose of promoting or advertising that you use the Services. You must only use the Plasticity marks in accordance with these Terms and Conditions. You understand and agree that Plasticity has the sole discretion to determine whether your attribution(s) and use of Plasticity marks is in accordance with the above requirements and any applicable guidelines.
- In the course of promoting, marketing, or demonstrating the Services you are using, Plasticity may produce and distribute incidental depictions, including screenshots, video, or other content from your Application or Device, and may use your company or product name and logos. You hereby grant Plasticity all necessary rights for these purposes.
- You agree to release, indemnify, defend and hold harmless Plasticity and any of its contractors, agents, employees, officers, directors, shareholders, affiliates and assigns from all liabilities, claims, damages, costs and expenses, including reasonable attorney's fees and expenses, of third parties relating to or arising out of (a) your use or misuse of the Services, (b) your breach of these Terms and Conditions, or (c) your infringement upon any intellectual property or other proprietary right of any person or entity. Plasticity may, at its own expense, assume the defense and control of any matter otherwise subject to indemnification by you. Doing so shall not excuse your indemnity obligations in these Terms and Conditions. The terms of this paragraph will survive any termination or cancellation of these Terms and Conditions.
- “Confidential Information” means all non-public, proprietary business, technical, legal, or financial information disclosed to or learned by you regarding the business relationship between the parties which Plasticity has identified as confidential at the time of disclosure or that, based on the nature of the information or circumstances surrounding disclosure, you should treat as confidential. Confidential Information does not include: (a) information that was generally known to the public at the time disclosed to you; (b) information that becomes generally known to the public (other than through your breach of this Section) after disclosure to you; (c) information that was in your possession free of any obligation of confidentiality prior to disclosure by Plasticity; (d) information that is rightfully received by you from a third party without any restriction on disclosure; or (e) information that was independently developed by you without reference to, or use of, Plasticity's Confidential Information. All Confidential Information is provided “AS IS.” PLASTICITY MAKES NO WARRANTIES, EXPRESSED OR IMPLIED, CONCERNING THE ACCURACY OR COMPLETENESS OF ITS CONFIDENTIAL INFORMATION.
- You: (a) will not use Confidential Information for any purpose except in connection with these Terms and Conditions; (b) will not disclose, give access to, or distribute any of the Confidential Information to any third party, except to the extent expressly authorized in a separate written agreement signed by Plasticity; and (c) will take reasonable security precautions (which will be at least as protective as the precautions you take to preserve your own confidential information of a similar nature) to keep the Confidential Information confidential. Notwithstanding the foregoing, you may disclose the Confidential Information to your employees, directors, affiliates, advisors, agents, contractors, and other representatives (“Representatives”) who need to know such information, provided that each such Representative is bound to protect the Confidential Information by confidentiality obligations substantially as protective as these Terms and Conditions. You will be responsible for your Representatives’ disclosure or use of the Confidential Information in violation of this Section. You will promptly notify Plasticity upon discovery of any unauthorized disclosure or use of the Confidential Information, or any other breach of this Section, by you or your Representatives. Your (and your Representatives’) obligations under this Section cease to apply to information upon the later of: (i) the termination of these Terms and Conditions; or (ii) after three (3) years have passed from the date on which the Confidential Information was first disclosed.
- Plasticity retains all rights, title, and interest in and to the Confidential Information, including all intellectual property and proprietary rights therein. The disclosure of the Confidential Information to you does not grant or convey any right of ownership of such Confidential Information.
- You may disclose the Confidential Information to the extent required by law or legal process. In such cases, however, you will (except to the extent prohibited by law or legal process from doing so): (a) give Plasticity prior notice of such disclosure so as to afford Plasticity a reasonable opportunity to appear, object, and obtain a protective order or other appropriate relief regarding such disclosure; (b) use diligent efforts to limit disclosure to that which is legally required; and (c) reasonably cooperate with Plasticity, at Plasticity's expense, in Plasticity's efforts to ensure that the Confidential Information will be subject to a protective order or other legally available means of protection.
You acknowledge that any actual or threatened breach of these Terms and Conditions may cause irreparable, non-monetary injury to Plasticity, the extent of which may be difficult to ascertain. Accordingly, Plasticity is entitled to seek injunctive relief in addition to all remedies available to Plasticity at law and/or in equity.
During the Subscription Term and for a period of one (1) year thereafter, you will not: (a) hire or attempt to hire any of Plasticity's employees; or (b) solicit, induce, recruit or encourage any of Plasticity's employees to terminate their relationship with Plasticity. Notwithstanding the foregoing, you will not be precluded from hiring a Plasticity employee pursuant to a general solicitation of employment (e.g., posting a job opening) not specifically directed at Plasticity employees.
These Terms and Conditions shall be construed, interpreted and governed by the laws of the Commonwealth of Virginia without regard to conflicts of law provisions thereof. You agree that the exclusive forum for any disputes arising out of or relating to these Terms and Conditions shall be an appropriate federal or state court sitting in Fairfax County, Virginia, USA.
If a provision of these Terms and Conditions is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions of these Terms and Conditions will not be affected, impaired or invalidated. If the absence of the provision adversely affects the substantive rights of a party, the parties agree to replace the provision with a new provision that closely approximates the economic and proprietary results intended by the parties.
Any delays in or failure by either party in the performance of any obligation under these Terms and Conditions shall be excused to the extent that such failure or delay is caused by occurrences beyond the party's reasonable control, including acts of God, storms, hurricane, earthquakes, riots, war (whether declared or not), sabotage, interruption or failure of telecommunication or digital transmission links, Internet slow-downs or failures, and any other cause that cannot reasonably be foreseen or controlled by such party. A party will not be liable as result of failures or errors related to the use or operation of the Internet.
No waiver, delay or discharge by a party will be valid unless in writing and signed by an authorized representative of the party against which its enforcement is sought. Neither the failure of either party to exercise any right of termination nor the waiver of any default will constitute a waiver of the rights granted in these Terms and Conditions with respect to any subsequent or other default.
Plasticity may amend these Terms and Conditions and the Services and related services offered under these Terms and Conditions in its sole discretion without notice, including license fees, availability, equipment and Services requirements, and limits or restrictions on the use of Services or services. Plasticity may impose additional restraints on the use of the Services at any time. Any amendment made to these Terms and Conditions shall be posted on the Plasticity website and is effective immediately after posting the amended Terms and Conditions. The website posting shall be your sole notice of any such changes. You agree to check the Plasticity website periodically to obtain notice of any changes. Continued use of the Services after a change constitutes your acceptance of the change. Section headings are for convenience only and are not part of the Terms and Conditions itself.
You may not assign or transfer, or purport to assign or transfer, any of your rights, duties, or obligations under these Terms and Conditions to any person or entity, in whole or in part, whether by assignment, merger, transfer of assets, sale of stock, operation of law, or otherwise. Plasticity may assign or transfer these Terms and Conditions in its sole discretion.
All questions, notices, demands, or requests to Plasticity with respect to these Terms and Conditions shall be made in writing to: (a) Plasticity Inc., Attention: Contracts/Legal, Plasticity Inc. 7918 Jones Branch Drive, Suite 850 McLean, VA 22102 , delivered by internationally recognized delivery service or certified U.S. mail, and notice shall be deemed given five (5) business days after being sent; or (b) via email to email@example.com, and notice shall be deemed given one (1) business day after being sent. All notices to you shall be made by posting a notice on Plasticity's website.
These Terms and Conditions shall be applicable for as long as you use the Services. All provisions regarding confidentiality, ownership/proprietary rights, limitation of liability, indemnity, non-solicitation, governing law, severability, waiver, entire agreement, notices, arbitration and statute of limitations shall survive these Terms and Conditions.
To the extent permitted by law, before you may begin arbitration with respect to a dispute involving any aspect of these Terms and Conditions, you shall notify Plasticity, and any other party to the dispute for the purpose of seeking dispute resolution. If the dispute is not resolved within 30 days after the initial notice, then a party may proceed in accordance with the following:
- Any unresolved dispute arising under the terms of these Terms and Conditions shall be decided by arbitration through the services of the American Arbitration Association (hereinafter referred to as the “AAA”).
- Notice of demand for an arbitration hearing shall be in writing and properly served upon the parties to these Terms and Conditions. Arbitration hearings shall be held in the Commonwealth of Virginia, Fairfax County, at a location mutually agreeable to the parties.
- There shall be one (1) arbitrator to hear the matter. The parties shall initially agree to a panel of three possible arbitrators to hear the matter and each party shall have the opportunity to name one arbitrator to be dropped from the panel until one remains. The party giving notice of the arbitration demand shall be first to indicate its selection.
- All costs of the arbitration and the AAA shall be borne equally by both parties to these Terms and Conditions, regardless of the final decision. The defaulting party as determined by the arbitrator, shall pay all other costs and expenses, including reasonable attorney's fees, incurred by the party in enforcing its rights under these Terms and Conditions.
- THE PARTIES AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that arbitration can proceed on a class basis, then the disputes, claims or controversies will not be subject to Arbitration and must be litigated in state or federal court located in Fairfax, Virginia.
- You affirm that you are older than 18 years of age and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms and Conditions, and to abide by and comply with these Terms and Conditions.
Statute of Limitations.
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services or these Terms and Conditions must be filed within one (1) year after such claim or cause of action arose or be forever barred.
You agree to receive electronically all communications, agreements, documents, notices, and disclosures that we provide in relation to the Services (“Communications”). We may provide Communications in a variety of ways, including by e-mail, text, notifications, or by posting them on Plasticity's website or through the Services. You agree that all Communications that Plasticity provides to you electronically satisfies any legal requirement that such communications be in writing.
BY USING, APPLYING FOR, OR ACCEPTING THE SERVICES YOU AGREE THAT YOU HAVE READ AND UNDERSTAND THESE TERMS AND CONDITONS AND THAT YOU WILL BE BOUND BY AND COMPLY WITH THEM. DO NOT USE THE SERVICES IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS.
IF YOU ARE A DIRECT COMPETITOR TO PLASTICITY, PLASTICITY RESERVES THE RIGHT TO DISALLOW YOUR ACCESS TO THE SERVICES.
This is a SUPPLEMENTAL AGREEMENT (this “Supplement”) between Plasticity and U.S. Government customers (the “Government”) and applies to the Government's use of the Services under Plasticity's Terms and Conditions. Terms not defined herein shall have the meanings set forth in the Terms and Conditions.
The reason for this Supplement is that a U.S. Government instrumentality is obligated to follow federal laws, regulations, and practices, among which are those relating to ethics, advertising and endorsements, tax exemption and immunity, limitations on indemnification, fiscal law constraints, governing law and jurisdiction, dispute resolution, and assignment of contracts.
Plasticity and the Government (collectively, the “Parties”) agree that modifications to the Terms and Conditions are appropriate to accommodate the Government's legal status, its public mission, and other unique circumstances. Therefore, the Terms and Conditions are modified by this Supplement as follows.
As it relates to the Government's use of the Services, the word “you” in the Terms and Conditions shall mean the Government itself and shall not apply to, nor bind (i) the individual(s) who utilize Plasticity's Services on the Government's behalf, or (ii) any individual users who happen to be employed by, or otherwise associated with, the Government. Plasticity will look solely to the Government to enforce any violation or breach of the Terms and Conditions by such individuals, subject to federal law.
Plasticity agrees not to serve or display any third-party commercial advertisements or solicitations on any pages within Plasticity's website that display content uploaded by or under the control of the Government.
The Parties understand that the FAR and DFAR require that Plasticity not include tax in Government billings unless the tax has been determined by the Government to be proper for payment.
Indemnification, Liability, Statute of Limitations
Any provisions in the Terms and Conditions related to indemnification, damages, attorneys’ fees, filing deadlines, defense of lawsuits, collection expenses, and settlement are hereby waived. Liability of either party for any breach of the Terms and Conditions as modified by this Supplement, or any claim, demand, suit or proceeding arising from the Terms and Conditions or this Supplement, shall be determined under the Federal Tort Claims Act, Contract Disputes Act, or other governing federal authority. Federal Statute of Limitations provisions shall apply to any claim, demand, suit or proceeding arising from the Terms and Conditions or this Supplement.
Governing Law and Forum
The Terms and Conditions and this Supplement shall be governed by, and interpreted and enforced in accordance with, applicable U.S. federal laws without reference to conflict of laws. To the extent permitted by federal law, the laws of the Commonwealth of Virginia, including its choice of law rules, will apply in the absence of applicable federal law. Any arbitration, mediation or other dispute resolution provision in the Terms and Conditions is hereby waived. The forum for purposes of resolving claims and disputes will be determined in accordance with federal law.
No Automatic Renewal
Plasticity agrees to waive any provisions in the Terms and Conditions, if any, allowing Plasticity to automatically charge the Government upon a renewal date associated with the Government's account. Plasticity agrees to remove any auto-renew default setting for the Government whose account details designates an email address that ends in .gov, .mil, .fed, or .us. Instead, Plasticity will notify the Government to allow the Government to determine if funds are available and if the Services will be needed for a renewal period.
Continuity of Services During Dispute
Plasticity agrees to waive the language that would otherwise permit Plasticity to terminate the Services in the event of an alleged breach of the Terms and Conditions by the Government. Instead, recourse against the Government for any alleged breach of the Terms and Conditions must be made under the terms of the Federal Tort Claims Act or as a dispute under the Contract Disputes Act, as applicable. During the resolution of the dispute, Plasticity shall proceed diligently with performance of the Services, pending final resolution of any request for relief, claim, appeal, or action arising under the Services and any Subscription Term, and comply with any decision of the Government's Contracting Officer.
Limitation of Liability
The Parties agree that nothing in the limitation of liability provision or elsewhere in the Terms and Conditions in any way grants Plasticity a waiver from, release of, or limitation of, liability pertaining to any past, current or future violation of federal law.
Plasticity agrees that the Government's name, seals, logos, trademarks, service marks, trade names, and the fact that the Government has a presence on the Plasticity websites and uses Plasticity's Services, shall not be used by Plasticity in such a manner as to state or imply (in the judgment of a reasonable person) that Plasticity's Services are endorsed, sponsored or recommended by the Government or by any other element of the Government, or are considered by the Government to be superior to any other Services on the market. Except for pages whose design and content is under the control of the Government, Plasticity agrees not to display any Government names, seals, trademarks, logos, service marks, and trade names on Plasticity's homepage or elsewhere on Plasticity's websites unless permission to do so has been granted by the Government or by other relevant federal Government authority. Plasticity may list the Government's name in a publicly available customer list on its homepage or elsewhere, so long as the name is not displayed in a more prominent fashion than that of any other third-party customer.
Neither party may assign its obligations under the Terms and Conditions as modified by this Supplement to any third party without prior written consent of the other. If, however, the Government is using any of Plasticity's free Services only, Plasticity may, without the Government's consent, assign the Terms and Conditions as modified by this Supplement to an affiliate or to a successor or acquirer, as the case may be, related to a merger, acquisition, corporate reorganization or consolidation, or the sale of all or substantially all of its assets. Any transfer of Plasticity assets related to the Government's paid subscription contract requires review and consent by the Government, under the procedures found in the FAR and the DFAR.
Precedence; Further Supplements
If there is any conflict between this Supplement and the Terms and Conditions or between this Supplement and other terms, rules or policies on Plasticity's websites or related to the Services, this Supplement shall prevail. This Supplement constitutes a mutually agreed upon supplement to the Terms and Conditions; language indicating it alone is the entire agreement between the Parties is waived.