Kaizen Analytix LLC Data
and API License Terms of Use

Last Updated: December 1, 2020

1. INTRODUCTION. Please read these Data and API License Terms of Use ("Terms") carefully before using any data, software, or services provided to you under these Terms. These Terms are a legally binding agreement between Kaizen Analytix LLC ("Kaizen", "we", "our", or "us") and you and/or the legal entity on whose behalf you represent ("you" or "your"). You and we are individually referred to as a "Party" and together as the "Parties".
   
   These Terms govern your use of the API (defined below), Documentation, and Data (defined below) (collectively, the "Services"). You acknowledge and agree that when you click the "I Accept" box for these Terms to create an Account (defined below) to use Services and/or to purchase a license to the Services, that you accept these Terms in their entirety. If you are acting on behalf of a business or other legal entity, you represent and warrant that you have all necessary authority and permission to bind such company or other legal entity to these Terms
   
   PLEASE NOTE THAT THESE TERMS INCLUDE IMPORTANT TERMS REGARDING YOUR RIGHTS TO A JURY TRIAL. PLEASE SEE SECTION 12.12 BELOW FOR THOSE TERMS AND CONDITIONS.
   
   IF YOU DO NOT AGREE TO THESE TERMS, YOU MUST NOT ENROLL OR REGISTER FOR ANY OF THE SERVICES OR OTHERWISE USE THE SERVICES.
2. UPDATES TO THESE TERMS. We reserve the right to modify the Services and the terms governing their use at any time, including, without limitation, these Terms. Modifications will be posted on the website located at https://www.kaizenanalytix.com ("Site") and the "Last Updated" date at the top of the webpage will be revised. You understand and agree that if you use the Services after the date on which the Terms have changed, we will treat your use as acceptance of the updated Terms. We may make changes in the Services at any time without prior notice to you.
3. RIGHTS TO SERVICES.
   1. License Grant. During the Term and subject to your and your Users' (defined below) compliance with these Terms, we hereby grant to you a limited, non-exclusive, non-transferable, revocable, and non-sublicensable right and license to access and use the Services and Documentation solely for your internal business operations.
   2. API Library, Private Keys, and Receiving Data. After creating an Account and paying any outstanding Fees, we will provide you with (a) access to our library of application programming interfaces (each an "API") that will enable you to pull the type of Data that you desire and (b) a private key to activate the API(s) you have selected ("Private Key"). You are solely responsible for installing the APIs you select. You may not share or otherwise disclose any Private Key we provide to you with any other third party. We reserve the right to suspend or change any Private Keys from time to time and, provided your Account is current with all outstanding Fees, we will, during the Term, provide an updated Private Key to you. Once an API is installed, the API will pull the data associated with the API from our databases ("Data") and deliver it to you in a JavaScript Object Notation (JSON) file format or such other format(s) as we may choose from time to time. The Data will include underlying raw data and certain metadata that we make available.
   3. Account and Users. To access and use the Services, you must obtain an API key from Kaizen (an "Account"). In the event you share any Data or Software with your employees or contractors or your employees or contractors receive Data directly from an API licensed to you through your Account (each a "User"), you will be responsible for all your Users' acts and omissions including, without limitation, their use of the Services, and their compliance with these Terms. You agree to provide true, accurate, current, complete and up-to-date information when you register for an Account. If you provide any information that is untrue, inaccurate, non-current or incomplete, or we have reasonable grounds to suspect that such information is untrue, inaccurate, non-current or incomplete, then we have the right to terminate or refuse any or all current or future access or use of the Services (or any portion thereof). We reserve the right to take any action that we deem necessary to ensure the security of the Services and your Account, including without limitation changing your password, terminating your Account, or requesting additional information to authorize transactions on your Account. You are solely responsible for keeping your Account password and any security questions and responses associated with your Account confidential. Anyone with knowledge of or access to your Account password or security questions and responses can use that information to gain access to your Account. You are solely liable for any claims, damages, losses, costs or other liabilities resulting from or caused by your or your Users' use of any Services or by any failure to keep your Account password and the security questions and responses confidential, whether such use and/or failure occurs with or without your knowledge or consent. You will immediately notify us of any suspected or actual unauthorized access to or use of your Account password, Account security questions and response, or any other breach of your Account security.
   4. Restrictions. You and your Users will not, will not attempt to, and will not enable or support a third party to: (a) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code or structure of any software used in the Services; (b) provide, lease, resell, distribute, sublicense, rent or lend the Services, in whole or in part, to any third party, whether or not for a fee, except as expressly authorized hereunder; (c) remove any proprietary notices or labels displayed on the Services or the Documentation; (d) create a derivative work of any part of the Services; (e) use the Services for any unlawful purpose; (f) create Internet "links" to or from the Services, or "frame" or "mirror" any of our content which forms part of the Services; (g) use or access the Services to build, support, and/or assist a third party in building or supporting, products or services competitive to our Services; (h) use the Services in any manner other than the uses authorized in these Terms; (i) interfere with or disrupt the integrity or performance of the Services; (j) operate the Services for timesharing, rental, outsourcing, or service bureau operations; (k) use the Services for any non-internal business purposes; or (l) use . You may use the Services only for your internal business purposes and in compliance with these Terms and applicable laws and regulations. Use of the Services is limited to persons eighteen (18) years of age or older. You are solely responsible for ensuring that only your appropriate personnel access and/or use the Services.
4. PAYMENT.
   1. Services and Term. Fees for the Services (the "Fees") will be set forth in the information we provide to you. We may change the Fees from time to time. You acknowledge that we may perform the same or similar Services for others and our provision of the Services is not exclusive to you.
   2. General. All Fees are non-cancelable and nonrefundable. All Fees are exclusive of taxes, levies, or duties imposed by taxing authorities, and you are responsible for payment of all such taxes, levies, or duties (excluding taxes based on our income), even if such amounts are not listed in these Terms or an applicable ordering page. All Fees hereunder are due and payable within thirty (30) days of the date of invoice. Unpaid Fees are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus our reasonable expenses of collection. You shall pay all amounts due to us in U.S. Dollars. If, at any time, we determine that you or your Users are exceeding any quantitative limit on the Services you have purchased, we will notify you and you will bring your usage within the limits of your purchase. If you fail to do so within thirty (30) days of our notice, we reserve the right to charge, and you agree to pay, our then-current Fees for such overage.
5. SERVICE LEVELS, SUPPORT, UPDATES AND MAINTENANCE. We will use commercially reasonable efforts to provide the Services and the support, updates and maintenance for the Software in accordance with industry standards.
6. CONFIDENTIALITY AND SECURITY.
   1. Disclosure. The Parties acknowledge that, in the course of performance of these Terms, one Party (the "Disclosing Party") may find it necessary to disclose or permit access to Confidential Information to the other Party (the "Receiving Party") and its personnel. Disclosing Party's disclosure of or provision of access to, Confidential Information to Receiving Party's personnel is solely for the purposes agreed under these Terms.
   2. Security. You agree to: (a) cause your employees and contractors that you provide with access to the Data to be informed of the obligations herein and to bound by applicable laws, rules, regulations, codes, policies, or procedures no less restrictive and protective of the Services as set forth herein; and (b) maintain industry standard safeguards reasonably designed to protect the confidentiality and integrity of, and to prevent unauthorized access to or use of the Services. You agree to notify us in the event of an actual breach of our security resulting in unauthorized access to or use of the Services as soon as practical, but in any event within forty eight (48) hours of discovery of the breach.
   3. Confidential Treatment. Confidential Information disclosed to a Receiving Party will be held in confidence by the Receiving Party and not disclosed to others or used except as expressly permitted by these Terms or as expressly authorized in writing by the Disclosing Party. Each Party will use the same degree of care to protect the other Party's Confidential Information as it uses to protect its own information of like nature, but in no circumstances less than reasonable care.
   4. Allowances. Notwithstanding anything to the contrary in this Section 6, Confidential Information may be disclosed by a Receiving Party: (a) to those of its employees, agents, and consultants who require it in connection with their duties in performing such Party's obligations under these Terms and who are contractually or legally obligated to hold such Confidential Information in confidence and restrict its use consistent with the Receiving Party's obligations under these Terms; (b) to the Receiving Party's auditors, outside counsel, accountants and other similar business advisors, or in connection with an actual or prospective sale or transfer of assets; and (c) to the extent required by law, pursuant to a duly authorized subpoena, court order or government authority, provided that: (i) the Receiving Party provides the Disclosing Party with sufficient advance notice of such disclosure requirement or obligation, to the extent permitted by applicable law or court order, to permit Disclosing Party to seek a protective order or other appropriate remedy protecting its Confidential Information from disclosure; and (ii) Receiving Party limits the release of the Confidential Information to the greatest extent possible under the circumstances.
   5. Exceptions. Obligations under this Section 6 will not apply to information which: (a) was in the public domain or generally available to the public prior to receipt thereof by the Receiving Party from the Disclosing Party, or which subsequently becomes part of the public domain or generally available to the public before any wrongful act of the Receiving Party or an employee, contractor, or agent of the Receiving Party; (b) is later received by the Receiving Party from a third party, unless the Receiving Party knows or has reason to know of an obligation of secrecy of the third party to the Disclosing Party with respect to such information; or (c) is developed by the Receiving Party independent of such information received from the Disclosing Party.
   6. Non-disclosure of Reports and Output. The Services and any related reports ("Reports") or other output are intended to be used by you to help you determine competitive pricing for your applicable athletics pricing. As such, Reports are not to be disseminated to any person outside of your organization or any regulatory body without our prior express written consent. Any reliance on such Reports are at your or such third party's risk.
7. TERM.
   1. Term. The term of these Terms shall begin on the date you agree to these Terms (the "Effective Date") and shall remain in effect for the subscription period you have paid for ("Initial Term"). Your subscription shall automatically renew for successive periods equal to the original subscription period you purchased (each, a "Renewal Term", and, any Renewal Term together with the Initial Term, the "Term") unless notice is given at least thirty (30) days before the end of the then current Term.
   2. Termination for Cause. In addition to our other termination rights under these Terms, these Terms may be terminated for a breach of these Terms by either Party upon thirty (30) days' prior written notice to the other Party if such breach is not cured within such thirty (30) day period.
   3. Obligations on Termination. Upon termination: (a) you agree to pay us all Fees for Services through the effective date of termination of these Terms; and (b) you and your Users agree to cease all use of Services and permanently delete all Data, Software, and Private Keys obtained through the Services.
8. OWNERSHIP.
   1. Ownership of Services. The Services and all information we provide to you under these Terms is confidential and considered our Confidential Information, including, but not limited to, Data, Software, and libraries of APIs, drawings, Documentation, object code, source code, computer program listings, techniques, algorithms, processes, technical and marketing information products, specifications, formulae, equipment, business strategies, customer lists, know-how, drawings, pricing information, inventions, ideas, and their potential uses. Upon our request, you agree to destroy any documents you prepared using our Confidential Information or derived therefrom and you further agree to provide confirmation of such destruction in writing. All right, title and interest in and to the Service, all modifications, enhancements and derivatives of the Service, any other deliverables created under these Terms, and all Intellectual Property contained in any of the foregoing, shall be owned by us. We reserve all use rights in and to the Services not expressly granted to you herein. For the avoidance of doubt, the Services are licensed, and not sold, to you.
   2. Your Information. You hereby grant us the limited right to view, modify, collect and use the data you provide to us to create or update an Account, solely to provide the Services and ensure your compliance with these Terms. Notwithstanding the foregoing: (a) we may use anonymized or general information derived from such data, including, without limitation, statistical and performance information related to the provision and operation of the Services, and aggregate it with information from other customers ("Non-Identifiable Aggregated Data") for our business purposes, including without limitation for analyzing customer needs and improving our services, and we will own all right, title and interest in any such Non-Identifiable Aggregated Data; and (b) User Data may be co-owned by third parties unaffiliated with us.
   3. Retention of Data. We will retain User Data in accordance with applicable law; provided, however, notwithstanding the foregoing, we will retain User Data for as long as necessary to provide services to others, including other third parties.
   4. Rights in Your Intellectual Property. The Parties agree that we may identify you as one of our customers on our websites. You hereby grant to us a fully-paid, royalty-free, non-exclusive, world-wide limited right and license to use, copy, and create derivative works from your Intellectual Property during the Term to the extent necessary and appropriate to identify you as one of our customers. Subject to the foregoing, all rights in your Intellectual Property not granted herein shall be reserved and retained by you, and nothing herein shall be interpreted as a transfer of ownership in any of your Intellectual Property. You may, at your sole discretion, revoke the license granted in this Section 8.4 upon written notice to us.
   5. Feedback. We are free to use any comments, information, ideas, concepts, reviews, or techniques or any other material contained in any communication you may send to us ("Feedback"), including responses to questionnaires or through postings made by us or our affiliates, agents, or contractors, on a worldwide basis, irrevocably, and in perpetuity without further compensation, acknowledgement, or payment to you or anyone else for any purpose whatsoever including, but not limited to, developing, improving, modifying, and marketing current, past, or future services and/or products. In addition, you agree not to enforce any "moral rights" in and to the Feedback, to the extent permitted by applicable law.
9. RESTRICTIONS, PRIVACY, EQUIPMENT, AND SUSPENSION.
   1. Use Restrictions. You agree that you will not and will not permit any of your Users to use Services to: (a) upload, post, e-mail, otherwise transmit any personally identifiable information (other than what is strictly necessary for you to register for an Account) or other similar sensitive information protected by any international, federal, state, or local law, rule or regulation; (b) intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, any regulations having the force of law; (c) upload, post, e-mail, otherwise transmit or post links to any content used on or in connection with the Services that you do not have a right to transmit under any law or regulation or under contractual or fiduciary relationships (such as inside information, or proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); (d) upload, post, e-mail, otherwise transmit, or post links to any material used on or in connection with the Services that contain software viruses, worms, Trojan horses, time bombs, trap doors or any other computer code, files or programs or repetitive requests for information designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment or to diminish the quality of, interfere with the performance of, or impair the functionality of our networks; and/or (e) to infringe any patent, trademark, service mark, trade secret, copyright or other proprietary rights of any third party, or contribute to inducing or facilitating such infringement. We reserve the right to delete or remove any content that may violate a third party's copyright upon receipt of notice of such violation by the third party holder of said right.
   2. Privacy Policy. YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE READ, UNDERSTAND AND AGREE THAT YOU AND ALL USERS ARE BOUND BY THE PRIVACY POLICY WHICH EXPLAINS OUR PRACTICES RELATING TO THE COLLECTION AND USE OF YOUR INFORMATION IN CONNECTION WITH OUR SERVICES, LOCATED AT HTTPS://WWW.KAIZENANALYTIX.COM, WHICH MAY BE UPDATED FROM TIME TO TIME WITHOUT NOTICE ("PRIVACY POLICY"). THE PRIVACY POLICY IS INCORPORATED INTO THESE TERMS AND GOVERNS OUR USE OF YOUR INFORMATION AND/OR ANY INFORMATION YOU SUBMIT OR OTHERWISE MAKE AVAILABLE TO US IN CONNECTION WITH THE SERVICES.
   3. Equipment Responsibility. You are solely responsible for obtaining and maintaining appropriate equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, computers, computer operating systems, internet services, and web browsers.
   4. Suspension and Termination. Without limiting our other termination rights herein, we may suspend and/or terminate your and/or your Users' access to and/or use of, or otherwise modify, the Services and/or any component thereof, and/or any Account without notice: (a) in the event we determine, in our sole judgment, that you or any of your Users have or attempted to have (i) violated these Terms, or (ii) damaged, harmed or misused our Services; or (b) as necessary or appropriate to comply with any law, regulation, court order, or other governmental request or order or otherwise to protect us from potential legal liability or harm to our business. We will use commercially reasonable efforts to notify you of the reason(s) for such suspension action as soon as reasonably practicable unless such action is due to subsection 9.4(a). In the event of a suspension (other than due to subsection 9.4(a)), we will promptly restore your access to the Services as soon as the event giving rise to the suspension has been resolved as determined in our discretion. Nothing contained in these Terms will be construed to limit our actions or remedies or act as a waiver of our rights in any way with respect to any of the foregoing activities. We will not be responsible for any loss or damages incurred by you or your Users as a result of any termination or suspension of access to or use of the Services as set forth in these Terms.
10. INDEMNIFICATION. You will indemnify, defend, and hold harmless us, our officers, agents, employees, affiliates, subsidiaries, assigns and successors in interest from, defend us against, pay any judgments awarded against us, and pay all reasonable costs and attorneys' fees resulting from any claims, liabilities, losses, suits, and damages asserted by a third party based on (a) your or any Users' use or misuse of the Services; (b) our compliance with your instructions; (c) our use of your Intellectual Property or other materials you supply to us; (d) your or your Users' breach of these Terms; (e) the conduct of any business in connection with use of the Services; (f) your or your Users' negligence, fraud, or willful misconduct; and/or (g) your or your Users' violation of any law, rule, regulation, or any rights of a third party. You will not agree to any settlement of an indemnifiable claim without out our prior written consent.
11. DISCLAIMERS AND LIMITATIONS.
    1. Reliance on Data. You acknowledge that the content made available as a part of the Services is provided to you in part by third parties unrelated to us. We are not responsible for the accuracy of any Data provided. BOTH PARTIES ACKNOWLEDGE THAT YOU, NOT US, ARE RESPONSIBLE FOR ALL DECISIONS IN CONNECTION WITH YOUR USE OF THE DATA INCLUDED OR PROVIDED BY THE SERVICES OR KAIZEN UNDER THESE TERMS. Due to the nature of the available data sources used in the Services, the Data may contain errors. Source data is sometimes reported or entered inaccurately, processed poorly or incorrectly, and is generally not free from defect. The Services are not the source(s) of the Data, nor are they a comprehensive compilation of the data. Before relying on any Data, it should be independently verified. You acknowledge that the Data may include or incorporate third party information which is not subject to our evaluation, and is intended as a supplement to, and not a substitute for, your knowledge, expertise, skill, and judgment. We do not assume any responsibility for action of you or your Users which may result in any liability or damages due to negligence or any other basis.
    2. Disclaimer of Warranties. OTHER THAN AS EXPRESSLY SET FORTH IN THESE TERMS, KP (SOLELY FOR PURPOSES OF THIS SECTION 11.2, WE, OUR SUBSIDIARIES AND AFFILIATES, AND OUR DATA PROVIDERS ARE COLLECTIVELY REFERRED TO AS "KAIZEN PARTIES" OR "KP") MAKE NO, AND HEREBY DISCLAIM ANY, REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES, OR THE AVAILABILITY, FUNCTIONALITY, PERFORMANCE, LOSS OF DATA OR RESULTS OF USE OF THE SERVICES. ALL SERVICES AND DATA ARE PERFORMED AND PROVIDED BY KP ON AN "AS-IS" AND "AS AVAILABLE" BASIS WITH ALL FAULTS. WITHOUT LIMITING THE FOREGOING, EXCEPT AS SPECIFICALLY SET FORTH HEREIN, WE DISCLAIM ANY WARRANTY THAT THE SERVICES WILL BE TIMELY, ACCURATE, CORRECT, COMPLETE, ERROR-FREE, VIRUS-FREE, UNINTERRUPTED, OR ACHIEVE ANY DESIRED RESULTS. WE MAKE NO, AND HEREBY DISCLAIM ANY, IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, OF FITNESS FOR ANY PARTICULAR PURPOSE, ARISING BY USAGE OF TRADE, NONINFRINGEMENT, ARISING BY STATUTE, ARISING BY COURSE OF DEALING, OR ARISING BY COURSE OF PERFORMANCE.
    3. Disclaimer of Consequential Damages. OTHER THAN FOR DAMAGES ARISING OUT OF A BREACH OF SECTION 3 AND/OR SECTIONS 9.1, AND/OR 10, NEITHER PARTY WILL HAVE LIABILITY WITH RESPECT TO THE PROJECTIONS OR SERVICES, OR ITS OTHER OBLIGATIONS UNDER THESE TERMS OR OTHERWISE, FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, INDIRECT, OR PUNITIVE DAMAGES, LOSS OF PROFITS, LOSS DATA, THE COST OF COVER, SECURITY AND DATA BREACHES, AND FAILURE TO ACCESS THE SERVICES EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
    4. Limitation of Liability. OUR TOTAL LIABILITY FOR ANY REASON AND UPON ANY CAUSE OF ACTION INCLUDING WITHOUT LIMITATION, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS, IS LIMITED TO ALL FEES PAID TO US BY YOU DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE LIABILITY. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.
    5. Other Limitations. Notwithstanding any other provisions hereof, we will not be liable for any claim, based on your use of the Services other than as we explicitly specify herein. Our obligations under these Terms run only to you and not to your affiliates, your customers, or any other persons or entities. Under no circumstances will any other person be considered a third party beneficiary of these Terms or otherwise entitled to any rights or remedies under these Terms. You will have no rights or remedies against us except as specifically provided in these Terms. You may not make or bring any action or claim of any type relating to these Terms more than one (1) year after you first have knowledge, or should have had knowledge, of the basis for the action or claim.
12. GENERAL TERMS.
    1. Assignment. These Terms shall be binding upon and inure to the benefit of the Parties hereto and their respective permitted successors and assigns. We may assign or otherwise transfer our interest or any part thereof under these Terms to another party without your consent except that such party must expressly assume responsibility for all obligations hereunder in writing. You may assign or otherwise transfer your interest or any part thereof under these Terms to any person or entity with our prior written consent.
    2. Use of Name. We may use your name and logo in advertising, publicity, or to otherwise publicize the fact that you are one of our customers.
    3. Compliance with Legal Requirements. You are responsible, at your sole expense, for complying with all applicable laws and regulations of each jurisdiction where the Services are accessed or used, including laws and regulations pertaining to access or use of the Services.
    4. Force Majeure. The Parties will not incur any liability to each other or to any other third party on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms (except for payment obligations) to the extent such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control, and without the exercise of reasonable due diligence, the Parties. Such events, occurrences, or causes include, without limitation, acts of God, any global, national, or local public health emergency or disease outbreak (including, without limitation, COVID-19 (a/k/a the 2019 Novel Coronavirus) or any similar disease(s)), telecommunications outages, pandemic, epidemic, Internet outages, power outages, any irregularity in the announcing or posting of updated data files, strikes, lockouts, boycotts, civil disturbance, riots, acts of war, acts of terrorism, floods, earthquakes, fires, and explosions.
    5. Notices. Subject to Section 12.6, all notices required to be given in writing under these Terms shall be in writing and shall be given or made by delivery in person, by courier service, by confirmed facsimile, or by registered or certified mail (postage prepaid, return receipt requested). Notices to Kaizen, notices will be sent to 2 Ravinia Drive, Suite 900, Atlanta, Georgia 30346, and notices to you will be sent to the address you included in your Account setup and as set forth in Section 12.6. It is your responsibility to update your address to ensure receipt of all notices.
    6. Electronic Communications. When you visit the Site or send e-mails to us, you are communicating with us electronically and you consent to receive communications from us electronically. We will communicate with you by e-mail at the address we have on file for you (if any), sending you messages through the Site, or by posting notices on the Site. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. You further agree that any notices provided by us electronically are deemed to be given and received on the date we transmit any such electronic communication as described in these Terms.
    7. Audit. We, or our designee(s), will have the right to perform audits regarding your use of the Services, at reasonable intervals, upon reasonable notice during the Term, and a period of one (1) year after termination of these Terms. You agree to make all relevant information available to us, and as appropriate, to our designee(s).
    8. Superseding Effect. These Terms and/or any exhibits constitutes the entire agreement of the Parties regarding the subject matter hereof, superseding all prior written and oral understandings and agreements between the Parties.
    9. Heading and Captions. The headings and captions contained in these Terms are for reference purposes only and shall not affect the meaning or interpretation of these Terms.
    10. No Partnership, Joint Venture, or Fiduciary Relationship Created. These Terms do not constitute a joint venture or partnership arrangement between the Parties and they do not create any relationship of principal and agent, or otherwise between the Parties. Neither Party will be liable for any obligation incurred by the other, except as might otherwise be expressly provided in these Terms. All employees of each Party will remain the employee of that Party and will not be subject to any direction or control by the other Party. Each Party will maintain its own professional liability and workers' compensation insurance for its own employees will withhold and pay all applicable payroll and other taxes, and obligations of an employer with respect to its employees. Nothing contained in these Terms will be interpreted as creating a partnership, joint venture, or employment relationship of the Parties, it being understood that the sole relationship created hereby is one of independent contractor.
    11. Applicable Law. These Terms are to be interpreted, construed and governed according to the laws of the State of Georgia as those laws are applied to contracts entered into and to be performed entirely in that State and excluding its conflicts of law provisions. The Uniform Computer Information Transactions Act will not apply to these Terms. Any claim or controversy arising out of or related to these Terms or any breach hereof shall be submitted to a court of applicable jurisdiction in the State of Georgia, Fulton County, and each Party hereby consents to the jurisdiction and venue of such court.
    12. Waiver of Jury Trial. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL ACTION, PROCEEDING, CAUSE OF ACTION OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THESE TERMS, INCLUDING ANY EXHIBITS, SCHEDULES, AND APPENDICES ATTACHED TO OR INCORPORATED INTO THESE TERMS, OR THE TRANSACTIONS CONTEMPLATED HEREBY.
    13. Attorneys' Fees. If either Party prevails in any suit or proceeding relating to these Terms, the prevailing Party will have the right to recover from the non-prevailing Party its costs and reasonable fees and expenses of attorneys, accountants, and other professionals incurred in connection with the suit or proceeding, including costs, fees and expenses upon appeal, separately from and in addition to any other amount included in such judgment.
    14. Severability. Except as provided below, each provision of these Terms will be interpreted in such a manner and to such an extent as to be effective and valid under applicable law. If any provision is prohibited by or invalid under applicable law, that provision will be ineffective only to the extent of such prohibition or invalidity.
    15. Survival. The terms, provisions, representations, and warranties contained in these Terms whereby their sense and context are intended to survive the performance and termination of these Terms, shall so survive the completion of performance and termination of these Terms, including, but not limited to, the making of any and all payments due hereunder and Sections 1 (Introduction), 4 (Payment), 6 (Confidentiality and Security), 7.3 (Obligations on Termination), 8 (Ownership) 10 (Indemnification), 11 (Disclaimers and Limitations), 12 (General Terms) (excluding Section 12.2 (Use of Name)), and 13 (Definitions).
13. DEFINITIONS.
    1. "Confidential Information" means information and technical data derived from or disclosed to a Receiving Party or affiliates of the Receiving Party by the Disclosing Party or its employees, vendors, customers, representatives, affiliates, agents and other independent contractors during the performance of obligations under these Terms and which is not generally known to the public, including the Disclosing Party's customers or competitors or any customers or competitors of any affiliate of the Disclosing Party. Examples of Confidential Information include, but are not limited to, Data (with respect to our Confidential Information) and information or data disclosed in oral, written, graphic or machine-readable form, or in forms otherwise embodying or displaying such information, or which is visible or audible to Receiving Party by virtue of the Receiving Party visiting or performing its obligations at a facility controlled by the Disclosing Party or an affiliate of the Disclosing Party, subsidiaries, agents or subcontractors, or by having access to the Disclosing Party's systems including, but not limited to, business plans, specifications, designs, methods, processes, ideas, concepts, drawings, software, pricing, operational plans and know-how, employee information, shareholder information, vendor information, customer information, and consumer information.
    2. "Documentation" means all operating manuals and user manuals, training and marketing materials, guides, product descriptions, product specifications, technical manuals, supporting materials, and other information relating to the Services, as we may modify from time to time, provided by us to you.
    3. "Intellectual Property" means any trademarks, service marks, trade names, distinctive words, logos, drawings, art work, pictures, colors, designs, design and/or utility models or copyrights, or any marks or works similar thereto, and any modifications, derivations, improvements or adaptations thereof.
    4. "Software" means any software or other technology provided by us in connection with the Services, including, without limitation, any APIs we provide to you.
    5. "User Data" means all data that you provide to create an Account and your and your Users' internet protocol (IP) addresses.