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Highrise Converter (“Highrise Converter”) is provided for your use by Cervello Inc. (“Cervello,” “we” or “us”), a Delaware corporation headquartered at 2 Seaport Lane, 11th Floor, Boston, MA 02210 (www.mycervello.com). The following terms and conditions, as they may be amended and restated from time-to-time (the “Terms”), govern your use of Highrise Converter. “Highrise Converter” means the products and services under the name Highrise Converter made available through our websites, the websites of our partners, cloud computing platforms, APIs, mobile computing platforms, and by any other method.
By accessing or using Highrise Converter you accept and agree to be bound by these Terms.
1. Using Highrise Converter
1.1 Eligibility. Highrise Converter is made available to those who may legally form a binding contract with us, and who comply with these Terms and all applicable laws. You may not use Highrise Converter if you are a person barred from doing so under the laws of the jurisdiction in which you access, use, are located or reside. If you are under 18 years of age, you represent to us that you possess the legal consent of your parent or guardian to access and use Highrise Converter. If you are under 13 years of age, do not use or access Highrise Converter at any time or in any manner.
1.2 License to Access and Use Highrise Converter. Subject to these Terms and any other applicable policies that may be published by us from time-to-time, Cervello grants you a limited, worldwide, non-exclusive, non-assignable, non-transferable and revocable license to use the object code version of Highrise Converter, with no right to sub-license. If you are using Highrise Converter on behalf of a company or other legal entity, you (i) represent that you have the authority to bind your company or other legal entity to these Terms and (ii) acknowledge you are nonetheless bound by these Terms individually, even if your company has a separate agreement with us.
By downloading Highrise Converter you acknowledge and agree that you have read and understood these Terms, that you agree to be bound by all of these Terms, and consent to the use of electronic signatures (including the click of the [download] button, which shall be deemed to be one).
1.3 License Restrictions. You may not (and you may not permit anyone else to): (i) copy, sell, sublicense, rent, lease, distribute, market, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of Highrise Converter or any part thereof; or (ii) attempt to disable or circumvent any Highrise Converter security mechanisms.
1.4 License to Use Cervello Marks. Subject to these Terms and any other applicable policies that may be published by us from time-to-time, Cervello grants you a limited, worldwide, non-exclusive, non-assignable, non-transferable, revocable and royalty-free license, with no right to sub-license, to display Highrise Converter and Cervello trademarks and/or logos (“Marks”) for the sole purpose of promoting or advertising that you use Highrise Converter and solely in accordance with Cervello’s then current Trademark Usage Guidelines. You agree that all goodwill generated through your use of the Marks shall inure to the benefit of Cervello. You can contact Cervello at firstname.lastname@example.org to obtain a copy of our Trademark Usage Guidelines and for more information.
1.5 Open Source Exception. Open source software licenses for components of Highrise Converter, if any, released under an open source license constitute separate written agreements. To the limited extent that the open source software licenses expressly supersede these Terms, the open source licenses govern your agreement with Highrise Converter only for the use of the components of Highrise Converter released under an open source license.
1.6 Updates. We may amend, revise or restate these Terms at any time by posting an updated version. Your continued use of Highrise Converter after a change to these Terms constitutes your binding acceptance of the Terms as amended, revised or restated.
2. Your Highrise Converter Account
2.1 Creating an Account. When creating your account or register (“Customer Account”), you must provide accurate and complete registration information any time you register. You may never use another’s Customer Account without permission. You are responsible for the activity that occurs on your Customer Account and for the security of your Customer Account, including passwords. If you become aware of any unauthorized use of your password or of your Customer Account, you must notify us immediately. Cervello cares about the integrity and security of your personal information; however, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. Therefore, you acknowledge and agree that you are providing your personal information at your own risk.
2.2 Use of Email. By providing Cervello with your email address you consent to our using the email address to send you notices related to your use of Highrise Converter, including any notices required by law, in lieu of communication by regular/postal mail. We may also use your email address to send you other messages, such as changes to features of Highrise Converter and special offers. If you do not want to receive these email messages, you may opt out by emailing us at email@example.com. Opting out may prevent you from receiving notices of updates, improvements and special offers.
2.3 Compliance with Laws. You must comply with all applicable laws, regulations and ordinances, including any laws regarding the export of data or software when using Highrise Converter.
2.4 Prohibitions. You agree not to (i) access (or attempt to access) the administrative interface of the Highrise Converter by any means other than through the interface that is provided by Highrise Converter or Cervello, or (ii) engage in any activity that interferes with or disrupts Highrise Converter or the servers and networks which are connected to Highrise Converter. You may not access Highrise Converter for the purpose of bringing an intellectual property infringement claim against Cervello or for the purpose of creating a product or service competitive with Highrise Converter.
2.5 Third-Party Applications. If you install or enable third-party applications for use with Highrise Converter, you acknowledge that we may allow providers of those third-party applications to access your data as required for the interoperation of such third-party applications with Highrise Converter. Cervello shall not be responsible for any disclosure, modification or deletion of your data resulting from any such access by third-party application providers. In addition, the Highrise Converter may contain features designed to interoperate with third-party applications; however, to use such features, you may be required to obtain permission to access to such third-party applications from their providers. If the provider of any such third-party application ceases to make the third-party application available for interoperation with the corresponding Highrise Converter features on reasonable terms, we may cease providing these features. In this circumstance, you would not be entitled to any refund, credit, or other compensation.
3. Privacy and Other Policies
3.2 Copyright. It is Cervello’s policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act ("DMCA notices"). We may limit access to Highrise Converter or Customer Accounts, or take down content, as a result of our receipt of a valid DMCA notice, and in appropriate circumstances, such as repeat infringement, our response could include terminating Customer Accounts. For more information, please contact Cervello at firstname.lastname@example.org.
3.3 Other Policies. From time-to-time Cervello may publish additional policies and notify you that they are deemed to be incorporated into these Terms. Your continued use of Highrise Converter after notice and publication of these policies constitutes your binding acceptance of the Terms as amended by incorporation of these policies.
4. Proprietary Rights
4.1 Cervello’s Ownership Rights. You acknowledge and agree that Cervello (or Cervello's licensors) owns all legal right, title and interest in and to Highrise Converter and any of our content, resources or information that we make available to you, including any intellectual property rights which subsist in Highrise Converter (whether those rights happen to be registered or not, and wherever in the world those rights may exist).
4.2 Your Ownership Rights. Cervello claims no ownership or control over any Content or Application. You retain copyright and any other rights you already hold in the Content and/or Application, and you are responsible for protecting those rights, as appropriate.
4.3 Your License to Cervello. By submitting, posting or displaying the Content on or through the Highrise Converter you give Cervello a perpetual, worldwide, royalty-free, and non-exclusive license to reproduce, store, adapt, modify, create derivative works, translate, publish, transmit, publicly display and distribute such Content, without compensation to you, for the purpose of enabling us to provide you with Highrise Converter or for any other related lawful purpose. Furthermore, by creating an Application through use of Highrise Converter, you give Cervello a perpetual, worldwide, royalty-free, and non-exclusive license reproduce, store, adapt, modify, create derivative works, translate, publish, transmit, publicly display and distribute such Application, without compensation to you, for the purpose of enabling us to provide you with Highrise Converter or for any other related lawful purpose. Except as provided above, we acknowledge and agree that we obtain no right, title or interest from you (or your licensors) under these Terms in or to any Content or Applications that you create, submit, post, transmit or display on, or through, Highrise Converter, including any intellectual property rights which subsist in that Content and the Application (whether those rights happen to be registered or not, and wherever in the world those rights may exist). You agree that you are responsible for protecting and enforcing those rights and that Cervello has no obligation to do so on your behalf.
4.4 License to Use Your Marks. You agree that Cervello, in its sole discretion, may use your trade names, trademarks, service marks, logos, domain names and other distinctive brand features in presentations, marketing materials, customer lists, financial reports and web site listings (including links to your website) for the purpose of advertising or publicizing your use of Highrise Converter.
4.5 Ideas. You may choose to, or we may invite you to, submit comments or ideas about Highrise Converter, including without limitation about how to improve Highrise Converter or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Cervello under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone.
5. Fees for Use of Highrise Converter
5.1 Subscription Fee. For access to and use of Highrise Converter, you agree to pay Cervello the initial subscription fee specified in the fees/payment summary screen when purchasing Highrise Converter. No refunds will be issued for any reason. You agree to pay the subscription fee at the times specified by Cervello by a method reasonably acceptable to us. Late payments may bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less). If payment of any fee is overdue, we may suspend your access to your Customer Account and/or Highrise Converter until such delinquency is corrected. Charges are exclusive of taxes. You are responsible for paying all taxes and government charges, and all reasonable expenses and attorneys fees we incur collecting late payments. If you are required to pay any withholding tax, charge or levy in respect of any payments due to Cervello, you agree to gross-up payments actually made such that Cervello receives amounts due hereunder in full and free of any deduction for any such withholding tax, charge or levy. To the fullest extent permitted by law, you waive all claims relating to charges unless claimed within 60 days after the charge (this does not affect any applicable credit card issuer rights you may have). Nothing in these Terms obligates Cervello to extend credit to any party. You acknowledge and agree that any credit card and related billing and payment information that you provide to Cervello may be shared by us with companies who work on our behalf, such as payment processors and/or credit agencies, solely for the purposes of checking credit, effecting payment to us and servicing your Customer Account. You agree that we may also provide information in response to valid legal process, such as subpoenas, search warrants and court orders, or to establish or exercise its legal rights or defend against legal claims. Cervello shall not be liable for any use or disclosure of such information by such third parties.
5.2 No Circumvention. You agree not to develop Applications or any other process to access Highrise Converter in a manner intended to avoid incurring subscription fees.
5.3 Professional Services. Upon your request we may, in our sole discretion, make available to you maintenance and support services, back-end support services, and other professional services for Highrise Converter upon terms and conditions, and for an additional charge, as agreed between you and Cervello.
5.4 Add-ons. Cervello may make available to you additional features, functionality, and services offered by its third-party partners (“Add-ons”). Your use of Add-ons is subject to these Terms and to applicable fees. You acknowledge for each Add-on you subscribe to or purchase through Highrise Converter, these Terms constitute a binding agreement between you and the third-party licensor of that Add-on (“the Add-on Provider”) only. The Add-on Provider of each Add-on is solely responsible for that Add-on and its content, and any claims that you or any other party may have relating to that Add-on, your use of that Add-on, or its content. You acknowledge that you are purchasing the license to each Add-on from the Add-on Provider of that Add-on; Cervello is acting as agent for the Add-on Provider in providing each such Add-on to you but is not a party to the license between you and the Add-on Provider with respect to that Add-on, nor are we responsible for that Add-on, its content, or any claims that you or any other party may have relating to that Add-on, your use of that Add-on, or its content. You acknowledge and agree that Cervello is a third-party beneficiary of the agreement between you and the Add-on Provider for each Add-on, and that we will have the right to enforce such license against you as a third-party beneficiary thereof. By subscribing to or purchasing an Add-on, you grant Cervello permission to share your Application, Content, and user information with the Add-on Provider as necessary in order to provide you the Add-on. The license granted to you to use any Add-on is personal to you, and is not sub-licensable to your end users. You may not provide or resell Add-ons to others.
6. EXCLUSION OF WARRANTIES
6.1 Highrise Converter PROVIDED “AS IS”. YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF Highrise Converter IS AT YOUR SOLE RISK AND THAT ACCESS TO AND USE OF Highrise Converter ARE PROVIDED TO YOU "AS IS" AND "AS AVAILABLE."
6.2 DISCLAIMER OF WARRANTIES. EXCEPT AS PROHIBITED BY LAW, CERVELLO MAKES NO EXPRESS WARRANTIES AND DISCLAIMS ALL IMPLIED WARRANTIES REGARDING Highrise Converter, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CERVELLO DOES NOT REPRESENT OR WARRANT TO YOU, AND EXPRESSLY DISCLAIMS, THAT: (i) YOUR USE OF Highrise Converter WILL MEET YOUR REQUIREMENTS, (ii) YOUR USE OF Highrise Converter WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, (iii) USAGE DATA PROVIDED THROUGH Highrise Converter WILL BE ACCURATE OR RELIABLE, OR (iv) ANY ERRORS IN Highrise Converter WILL BE CORRECTED.
7. LIMITATION OF LIABILITY
7.1 LIMITATIONS. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE TERMS OR ELSEWHERE, YOU EXPRESSLY UNDERSTAND AND AGREE THAT CERVELLO SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY. THIS SHALL INCLUDE, BUT NOT BE LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMANGES; ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. THE LIMITATIONS ON CERVELLO’S LIABILITY SHALL APPLY WHETHER OR NOT WE HAVE BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
7.2 MAXIMUM LIABILITY. TO THE FULLEST EXTENT POSSIBLE BY LAW, OUR MAXIMUM LIABILITY ARISING OUT OF OR IN CONNECTION WITH YOUR ACCESS TO OR USE OF Highrise Converter, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY, OR OTHERWISE), WILL NOT EXCEED $250.
8. Your Representations and Indemnification Obligations
8.1 Representations and Warranties. You represent and warrant to us that: (i) you have the legal right, power, and authority to enter into, and to perform your obligations under, the agreement represented by these Terms; (ii) the Content and Applications will not infringe any third-party intellectual property rights; (iii) your access or use of Highrise Converter, development and implementation of any Application, or use of any Content, will not conflict with or violate any agreement to which you are party, including, without limitation, noncompetition and confidentiality agreements, or governmental order or action to which you are subject, and that you will not enter into any such agreements or become subject to such orders or actions that could result in a conflict or violation; (iv) you will not disclose any confidential information of any third party that you do not have the right to disclose; (v) you will not make unauthorized copies of software of other parties, or incorporate into any Content or Application any intellectual property owned by other parties that has not been licensed for such purpose; and (vi) you will not violate any applicable laws in relation these Terms, your access or use of Highrise Converter, development and implementation of any Application, or use of any Content.
8.2. Indemnification. You agree to defend, indemnify and hold Cervello, and its subsidiaries, affiliates, officers, agents, employees, advertisers, licensors, suppliers or partners (collectively “Cervello Parties”) harmless from and against any loss, damage and expense arising from any and all threatened or actual claims, demands or actions arising from or in any way related to (i) your breach of the Terms, (ii) your use of Highrise Converter, (iii) your violation of applicable laws, rules or regulations, or (iv) your Content or your Application, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys' fees, of every kind and nature. In the event of any claim, suit or action, Cervello will provide you with written notice.
8.3 Specific Performance. You acknowledge and agree that irreparable damages would be caused to us, and that monetary damages would not compensate us for our loss, should you breach these Terms as they relate to intellectual property rights and confidentiality. Accordingly, in addition to all other remedies available to us at law or in equity, upon a showing by us that you have violated or are about to violate these Terms as they relate to intellectual property rights and confidentiality, you agree to the entry by a court of competent jurisdiction of an injunction or declaratory judgment enforcing these Terms, including without limitation preventing infringement or disclosure, or further infringement or disclosure, by you.
9.1 Your Right to Terminate. You may terminate your agreement with us at any time for any reason by canceling your Customer Account. You will not receive any refunds if you cancel your Customer Account or terminate your agreement with us.
9.2 Our Right to Terminate. You agree that Cervello, in its sole discretion and for any or no reason, may terminate our agreement with you and/or cancel your Customer Account or any part thereof. You agree that any termination of our agreement with you or cancellation of all or any portion of your Customer Account may be without prior notice, and you agree that we will not be liable to you or any third party for such termination or cancellation.
9.3 Export of Content and Applications. You are solely responsible for exporting your Content and Application(s) from Highrise Converter prior to the termination of your agreement with us or cancellation of all or any part of your Customer Account. If we terminate your agreement with us or cancel all or any portion of your Customer Account, we will provide you with reasonable prior notice in order for you to retrieve your Content and Application(s).
9.4 Surviving Terms. Upon any termination of our agreement or cancellation of your Customer Account, these Terms will also terminate; provided, however, that Sections 4, 5, 6, 7, and 8 shall continue to be effective after these Terms are terminated.
10. General Legal Terms
10.1 Entire Agreement. These Terms (including our privacy and other applicable policies), as amended and restated from time-to-time, constitute the whole legal agreement between you and us and govern your use of Highrise Converter, and supersedes all prior or contemporaneous agreements, understandings, proposals and communications, oral or written, regarding such subject matter. You acknowledge and agree that in agreeing to these Terms and accessing and using Highrise Converter, you are not relying on any statement, representation, warranty or understanding other than as expressly set out in these Terms.
10.2 Independent Contractors. There are no third-party beneficiaries to these Terms. You and we are independent contractors, and nothing in these Terms creates an agency, partnership or joint venture.
10.3 No Waivers. You agree that no waiver of any right or remedy available to us under these Terms or applicable law will be implied by our failure to enforce such right or remedy, and that no express waiver will affect any right or remedy available to us other than that to which the waiver is applicable and only for that occurrence.
10.4 Force Majeure. You agree that we shall not be liable for failing or delaying performance of our obligations as a result of any condition beyond our reasonable control, including but not limited to, governmental action, acts of terrorism, earthquake, fire, flood or other acts of God, labor conditions, power failures, and Internet disturbances.
10.5 Headings. The article, section and paragraph headings contained in these Terms are for reference purposes only and shall not affect in any way the meaning or interpretation of these Terms.
10.5 Governing Law. These Terms, and your relationship with us under these Terms, shall be governed by the laws of the Commonwealth of Massachusetts, without regard to its conflict of laws provisions. You and we each agree that any claim or cause of action arising under or relating to these Terms or the agreement created by these Terms will be brought in a court of competent jurisdiction located in Boston, Massachusetts. You expressly consent to the jurisdiction of the courts of the state where Cervello has its principal place of business in the United States (at the time any claim is filed) to adjudicate any dispute arising under these Terms.
10.6 Assignment. You may not assign any of your rights or obligations under these Terms, whether by operation of law or otherwise, without our prior written consent. We may assign our rights or obligations under these Terms without your consent. These Terms shall inure to the benefit of and be binding upon the parties hereto, and their successors and permitted assigns.