Under the terms of and subject to the restrictions in this Agreement, ShuttleCloud will provide the ShuttleCloud electronic mail migration tool as further described at http://customer.comcast.com/help-and-support/internet/about-easychange/ (the “Product”) to User during the term of this Agreement. User may use and access the Product in connection with the migration of User’s electronic mail account. User’s rights to use the Product are non-exclusive and non-transferable. User may use the Product only for User’s own benefit, and not for the benefit of any other third party. ShuttleCloud may from time to time modify the Product and add, change, or delete features of the Product in its sole discretion. User’s continued use of the Product after any such changes to the Product constitutes User’s acceptance of these changes. ShuttleCloud may, in its sole discretion, at any time terminate the Product. The Product may be used and accessed solely for User’s personal purposes. User acknowledges and agrees that ShuttleCloud may migrate certain associated electronic mail data, such as labels/folders, read/unread status etc., but the actual associated data that is migrated (if any) will vary based on User’s electronic mail application provider. ShuttleCloud makes no representation or warranty as to the types or amounts of such associated data that will be migrated (if any). Client acknowledges the migration of data, including but not limited to electronic mail, contacts and calendar information is inherently risky, and is subject to delay and in some events, full or partial failure. ShuttleCloud makes no representations or warranties with respect to the quality of any migrated data or any other services provided by the Product. User acknowledges and agrees that factors including, but not limited to, User’s electronic mail hosting company network environment, servers, data corruption, telecommunications failures and third-party hardware or software failures may prevent a successful migration. User is strongly advised to backup all electronic mail data prior to commencing migration using the Product.
User acknowledges and agrees that User is solely responsible for: (a) all use of the Product by User and any other party utilizing User’s electronic mail account, with or without authorization; (b) maintaining the confidentiality of User’s electronic mail account and password; and (c) ensuring that User’s use of the Product and User’s electronic mail account complies with all applicable Federal, state, and local privacy and data security rules, regulations and laws. User further acknowledges and agrees that ShuttleCloudhas no control over and shall not be responsible for any changes by User’s electronic mail application provider to such electronic mail application including, without limitation, such changes which may affect the Product, and User shall indemnify and hold ShuttleCloudharmless with respect to any losses, damages, or claims arising therefrom, pursuant to Section 10 below. Use and performance of the Product are dependent on access to User’s systems and third-party systems, including User’s electronic mail application provider. User acknowledges that such third party may change or amend its guidelines and ShuttleCloud’s access to it at any time. Any unavailability or suspension or termination of ShuttleCloud’s access to User’s systems or a third party’s systems will change the availability and/or delivery time of the Product.
User’s Representations and Warranties.
ShuttleCloud’s Representations and Warranties.
ShuttleCloud represents and warrants to User that ShuttleCloud: (i) has the full power and authority to enter into this Agreement; (ii) will not violate any local, state, national or international law or regulation in connection with the provision of the Product; and (iii) will provide the Product in accordance with this Agreement subject to the terms and conditions hereof.
EXCEPT AS PROVIDED FOR ABOVE, SHUTTLECLOUDMAKES NO OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE; ALL SUCH REPRESENTATIONS AND WARRANTIES INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY EXPRESSLY DISCLAIMED. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SHUTTLECLOUDMAKES NO REPRESENTATIONS OR WARRANTIES ABOUT ANY REPORTS, ANALYSIS, OR INFORMATION MADE ACCESSIBLE BY OR THROUGH THE PRODUCT. THE PRODUCT IS NEITHER DESIGNED NOR INTENDED FOR HIGH-RISK ACTIVITIES.
Without limiting the generality of the foregoing, ShuttleCloud does not warrant that the Product will operate without interruption or error-free, or that the Product will be totally secure. Under no circumstances will ShuttleCloud be held liable for any loss of User’s e-mail, data, records, or other materials. User acknowledges that ShuttleCloud has no control over the functioning of the Internet, User’s electronic mail provider application, or any other third party applications used in connection with the Product, and ShuttleCloudmakes no representations or warranties of any kind regarding the performance of the Internet or any such third party applications.
User agrees that ShuttleCloud owns all intellectual property rights in and to the Product including but not limited to all software, scripts, programming and comparable materials used therein or related thereto (“Software”), trademarks, trade secrets, look and feel, structure, organization, design, algorithms, templates, data models, logic flow, text, graphics, logos, and screen displays, and any other proprietary rights associated therewith. User shall not copy, modify, reverse engineer, decompile or disassemble the Software, or otherwise attempt to reconstruct or discover the source code for the Software. User further agrees not to resell, lease, assign, distribute, time share or otherwise commercially exploit or make the Product available to any third party for such third party’s benefit. ShuttleCloud reserves all rights in the Product not expressly granted to User hereunder. ShuttleCloud shall have a royalty-free, worldwide, transferable, and perpetual license to use or incorporate into the Product any suggestions, ideas, enhancement requests, feedback, or other information provided by User relating to the Product.
Technical Support Product.
ShuttleCloud shall use reasonable efforts to provide maintenance and technical support for the Product but does not guarantee the results thereof or that any and all technical issues will be resolved. Notwithstanding the foregoing, ShuttleCloud expressly disclaims any obligation to provide maintenance, technical or other support, updates, upgrades, bug fixes, patches or any similar service and Customer acknowledges that ShuttleCloud has no express or implied obligation to do so and are not entering into this Agreement in reliance on any of the foregoing services. ShuttleCloud may, from time to time, provide bug fixes for bugs or other; provided, however, in doing so ShuttleCloud does not obligate itself to do so in future.
Term and Termination.
This Agreement will be effective as of the date the User first accesses or uses the Product and, unless sooner terminated as herein provided, will continue in perpetuity. ShuttleCloud may discontinue providing the Product and terminate this Agreement at any time without notice and in its sole discretion. User may discontinue its use of the Product and terminate this Agreement at any time without notice and its sole discretion. Any such termination shall relieve the parties of all rights, obligations and liabilities to the other except as provided for Sections 6, , 10, 11, and 12, which Sections shall survive the termination of this Agreement.
Confidentiality and Security.
“Confidential Information” means any information or data that is disclosed by ShuttleCloud to User pursuant to this Agreement that is marked as confidential or that ShuttleCloud does not generally make available to the public. Confidential Information does not include information that the User can show: (a) is or becomes publicly known or available without breach of this Agreement; (b) is received by a receiving User from a third party without breach of any obligation of confidentiality; or (c) was previously known by the User as shown by its written records. User agrees: (a) to hold the ShuttleCloud’s Confidential Information in confidence, and to protect the Confidential Information in the same manner that it protects the confidentiality of its own similar confidential information (but in no event using less than reasonable care); and (b) except as expressly authorized by this Agreement, not to, directly or indirectly, use, disclose, copy, transfer or allow access to the ShuttleCloud’s Confidential Information. Without limiting the foregoing, User shall disclose and allow access to the Product only for the purpose of supporting and augmenting User’s use of the Product. Notwithstanding the foregoing, User may disclose Confidential Information of the disclosing party as required by law, applicable regulatory authorities, or court order; in such event, such party shall use its best efforts to inform the other party prior to any such required disclosure.
User, at its expense, shall indemnify, defend and hold ShuttleCloud and its officers, directors, owners, employees, and affiliates harmless from and against any and all liability, damages, injuries, losses, costs and expenses (including attorney’s fees) arising out of or relating to User’s use of the Product, including but not limited to liability, damages, injuries, losses, costs and expenses arising from any claims relating to User’s breach of any representations, warranties, or covenants in this Agreement.
User acknowledge and agrees that the Product is being provided without fees or expense to User and, therefore, agrees to the exclusion of liability on the part of ShuttleCloud provided for in this Section 11 as a reasonable limitation in light of such fact. The exclusion of liability in this Section represents the agreed and bargained for understanding of the parties and the absence of compensation to ShuttleCloud for the Product reflects such understanding. ShuttleCloud shall have no liability whatsoever (whether in contract, tort, negligence, strict liability in tort, or by statute or under any other theory of law) to User or to any third party concerning performance or non-performance by ShuttleCloud, or in any manner related to this Agreement or the Product. In the event the foregoing exclusion of liability is unenforceable under any applicable law, the parties further agree that in no event shall ShuttleCloud be liable for special, consequential, incidental, indirect or punitive loss, damage or expenses whether arising in contract or tort (including but not limited to lost profits, loss of data, or the cost of recreating lost data), even if it has been advised of their possible existence. These limitations of liability will apply notwithstanding any failure of essential purpose of any limited remedy.
The parties agree to work together in good faith to resolve any dispute regarding this Agreement internally and by escalating it to higher levels of management and optional mediation, prior to resorting to binding arbitration. Any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination or invalidity thereof, that cannot be resolved by good faith negotiations shall be finally settled by binding arbitration conducted in the English language in New York, NY (USA), under the commercial arbitration rules of the American Arbitration Association (“AAA”). The prevailing party shall be entitled to an award of reasonable attorney fees incurred in connection with the arbitration in such amount as may be determined by the arbitrator. The award of the arbitrator shall be the sole and exclusive remedy of the parties and shall be enforceable in any court of competent jurisdiction. Notwithstanding anything contained in this Section to the contrary, each party shall have the right to institute judicial proceedings against the other party or anyone acting by, through or under such other party, in order to enforce the instituting party’s rights hereunder through specific performance, injunction or similar equitable relief. This Agreement shall be interpreted, construed, and governed by the laws of the State of New York, without regard to its conflict of law provisions. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
Neither party shall be liable for any failure or delay in the performance of its obligations (except for payment obligations hereunder) due to causes beyond the reasonable control of the party affected, including but not limited to war, sabotage, insurrection, riot or other act of civil disobedience, strikes or other labor shortages, act of any government affecting the terms hereof, acts of terrorism, accident, fire, explosion, flood, hurricane, severe weather or other act of God, failure of telecommunication or internet service providers.
User shall have no right to assign this Agreement or any of User’s rights or obligations hereunder. ShuttleCloud may assign this Agreement and any of its rights hereunder to third parties. Every provision of this Agreement is intended to be severable. If any section of this Agreement is found to be invalid or unenforceable, then such section will be deemed amended and interpreted, if possible, in a way that renders it enforceable. If such an interpretation is not possible, then the section will be deemed removed from this Agreement and the rest of this Agreement will remain in full force and effect.
ShuttleCloud reserves the right, in its sole discretion, to modify or change this Agreement at any time by posting the changes to its website or through electronic notice to User. User’s continued use of the Product following the posting or notice of such changes constitutes acceptance of those changes. ShuttleCloud will use reasonable commercial efforts to provide notice of material changes to User.