Last modified: 11/08/2023
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS (THE “TERMS”), WHICH ALONG WITH OUR PRIVACY POLICY AND ANY ORDER FORM REFERENCING THESE TERMS (AN “ORDER”) AND ALL SUPPLEMENTAL TERMS THAT MAY BE PRESENTED TO YOU FOR YOUR REVIEW AND ACCEPTANCE (COLLECTIVELY, THE “AGREEMENT”) CONSTITUTE THE AGREEMENT BETWEEN THE ENTITY ACCESSING OR USING THE SERVICE (“YOU” or “CUSTOMER”), AND DYNAMIC LABS, INC. (“DYNAMIC”). THIS AGREEMENT REPRESENTS THE ENTIRE AGREEMENT CONCERNING THE SERVICE BETWEEN THE PARTIES AND IT SUPERSEDES ANY PRIOR PROPOSAL, REPRESENTATION, OR UNDERSTANDING BETWEEN THE PARTIES. DYNAMIC AND CUSTOMER ARE HEREINAFTER JOINTLY DEFINED AS THE “PARTIES” OR INDIVIDUALLY A “PARTY”.
BY EXECUTING AN ORDER THAT REFERENCES THESE TERMS, OR BY ACCESSING OR USING, OR SUBSCRIBING TO USE THE SERVICE, YOU ARE ACCEPTING AND AGREEING TO BE BOUND BY AND TO COMPLY WITH THESE TERMS. YOU AGREE TO THESE TERMS PERSONALLY AND ON BEHALF OF ANY COMPANY OR OTHER LEGAL ENTITY THAT YOU REPRESENT WHEN USING THE SERVICE OR THAT YOU NAME AS THE USER WHEN YOU CREATE AN ACCOUNT FOR THE SERVICE. YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THIS AGREEMENT AND TO BIND ANY SUCH COMPANY OR LEGAL ENTITY TO THIS AGREEMENT. IF CUSTOMER SUBSCRIBES VIA DYNAMIC’S ONLINE REGISTRATION FLOW, THEN THE ONLINE REGISTRATION FORM SUBMITTED BY CUSTOMER AND ACCEPTED BY DYNAMIC CONSTITUTES THE APPLICABLE ORDER FOR PURPOSES OF THIS AGREEMENT. EACH ORDER IS INCORPORATED HEREIN BY REFERENCE. IF YOU DO NOT AGREE WITH ALL OF THE PROVISIONS OF THIS AGREEMENT, YOU MAY NOT ACCESS AND/OR USE THE SERVICE.
Dynamic may change these Terms from time to time at its sole discretion, and if it makes any material changes, it will attempt to notify You by sending You an email to the last email address You provided to Dynamic and/or posting a notice on Dynamic’s website. Therefore, You agree to promptly notify Dynamic of any changes in your email address. Any material changes to these Terms will be effective upon the earlier of (1) your acceptance of the new Terms if we provide a mechanism for acceptance or (2) next renewal date of the Agreement pursuant to the applicable Order. If you are using a free version of the service, any changes will be effective immediately.
“Access Credentials” means login information, passwords, security protocols, and policies through which Authorized Users access the Service.
“Affiliate” of a Party means: (a) any entity that such Party controls; (b) any entity that controls such Party; or (c) any entity under common control with such Party. To “control,” for purposes of this definition, means owning or otherwise controlling more than 50% of the voting interests of an entity.
“Authorized User” means an employee or contractor of Customer who is authorized by Customer to access and use the Service on Customer’s behalf, and who has been issued a Service account by Customer that is associated with a unique email address with a domain name owned or controlled by Customer.
“Customer Application” means an application or web-based service developed or used by Customer (including its APIs), and which utilizes the Dynamic Platform to identify or authenticate users.
“Customer Data” means all data, content, and information submitted by Authorized Users into the Service or otherwise made available to Dynamic for use in connection with the Service, and the Customer-specific output that is generated by Authorized Users’ use of the Service.
“Documentation” means the user manuals, specifications, and policies available on the dynamic.xyz website, as may be updated from time to time, that describe the functionality, features, operation, or use of the Service and that are made available by Dynamic to Customer.
“Dynamic Platform” means the computer software applications, tools, application programming interfaces (APIs), software development kits (SDKs) connectors, programs, networks and equipment that Dynamic uses to make the Service available to its customers.
“Service” means the provision by Dynamic of the Dynamic Platform (excluding Customer Data). References to the “Service” in this Agreement include the Documentation.
“Personal Information” means any Customer Data that constitutes “personal data”, “personal information”, or similar terms defined in applicable privacy and security laws, except that Personal Information does not include information pertaining to Customer’s personnel where Dynamic acts as a controller of such information.
Dynamic shall have the following responsibilities to Customers:
2.1 Provision of the Service.
Subject to the terms and conditions of this Agreement and during the Term (as defined in Section 10), Dynamic will make the Service available to Customer for use by Authorized Users solely in accordance with the Documentation and for the purpose of enabling authentication of users of Customer Applications. Subject to this Agreement and during the Term, Dynamic grants to Customer the right for its Authorized Users to access and use the Service, and to use any software made available by Dynamic, in each case solely in accordance with the Documentation and for the purpose of enabling authentication and identification of end users of Customer Applications.
The Dynamic Platform and Service are non-custodial.
2.2 Updates and Upgrades.
This Agreement will also apply to updates and upgrades of the Service subsequently provided by Dynamic to Customer. Dynamic may update the functionality, user interfaces, usability, and Documentation from time to time in its sole discretion as part of its ongoing mission to improve the Service.
2.3 Protection of Customer Data.
Dynamic will maintain commercially reasonable administrative, physical, and technical safeguards designed to prevent unauthorized access to or use of Customer Data under the control of Dynamic.
2.4 Compliance with Laws.
Dynamic will comply with all applicable laws for Dynamic’s provisioning of the Service to its customers generally (i.e., without regard to the specific nature of the Customer Data or Customer’s particular use of the Service).
2.5 Support.
As part of the Service, Dynamic will provide Customer with Dynamic’s standard support, Documentation, and other online resources to assist Customer in its use of the Service.
3.1 Access Credentials.
Customer will safeguard, and ensure that all Authorized Users safeguard the Access Credentials. Customer will notify Dynamic immediately if it learns of any unauthorized use of any Access Credentials or any other known or suspected breach of security regarding the Service.
3.2 Customer Responsibilities.
Customer will be responsible: (a) for Authorized Users’ compliance with this Agreement; (b) for the accuracy, integrity, appropriateness, and legality of the Customer Data; (c) to prevent unauthorized access to or use of the Service, and promptly notify Dynamic of any such unauthorized access or use; (d) to ensure that the use of the Service is only in accordance with the Documentation and applicable laws and government regulations; and (e) for obtaining any consents and providing any notices, as necessary, to enable Dynamic to perform its obligations under the Agreement, including, without limitations, accessing and processing any Personal Information for the purpose of providing the Service.
3.3 Usage Restrictions.
Customer may not: (a) make the Service available to, or use the Service for the benefit of, anyone other than Customer and the Authorized Users; (b) upload, post, transmit, or otherwise make available to the Service any content that (i) is unlawful or tortious, or (ii) infringes, misappropriates, or otherwise violates any intellectual property, privacy, publicity, or other proprietary rights of any person; (c) sublicense, resell, timeshare, or similarly exploit the Service; (d) upload, post, transmit, or otherwise make available any content or information designed to interrupt, interfere with, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (e) reverse engineer, modify, adapt, or hack the Service, or otherwise attempt to gain unauthorized access to the Service or its related systems or networks; or (f) access the Service to build a competitive product or service.
3.4 Customer Applications.
Customer is solely responsible for the development, implementation, operation, support, maintenance, and security of each Customer Application, including the processes by which end users of the Customer Applications who are authenticated via the Service (“End Users”) accept the terms and conditions of such Customer Applications.
Customer represents and warrants that it shall comply with all applicable privacy laws and regulations including those applying to personal data, including without limitation, the personal data of the End Users using a Customer Application.
3.5 Third-Party Services.
In addition to the foregoing, Dynamic may incorporate resources provided by third parties into the Service, including by links contained in advertisements, banner advertisements, and sponsored links (such third-party resources or linking shall be referred to herein as the “Third-Party Services”). Third-Party Services are provided for your convenience only and the availability of Third-Party Services does not constitute an endorsement by Dynamic of the same. Third-Party Services are not under Dynamic’s control and, as such, are not considered part of our Services. Dynamic makes no representation or warranty regarding any Third-Party Service, including its availability, security, or suitability for use with or in conjunction with Dynamic’s Services. Any proprietary right or interest to any Third-Party Service and any content provided therein belongs to that third-party provider subject to any right or license Customer may hold as to such Third-Party Service. If you decide to access or use a Third-Party Service, your activity and use is governed by the Third-Party Service’s terms and conditions, not by those of Dynamic. A list of the terms of such Third-Party Services is provided here.
Dynamic leverages Third-Party Services for non-custodial embedded wallet key management infrastructure. In the event that Third-Party Services include the access to, or creation of, embedded wallets or functionality for exporting private keys for Customer or End Users, Customer acknowledges that (1) Dynamic does not host, maintain or have access to the authentication credentials for such wallets, including asymmetric, cryptographic keys (“Private Keys”) that are contained within the Third-Party Services and (2) Customer and its End Users are solely responsible for securing such authentication credentials and Private Keys. Dynamic is not responsible for any activities that End Users engage in when using End Users’ Private Keys. Dynamic's non-custodial embedded wallet functionality (i.e "passkey wallets") leverages key management infrastructure from Turnkey Global Inc. ("Turnkey"). If customer enables such functionality, Customer acknowledges that Turnkey is a Third-Party Service and agrees to and accepts the the Turnkey Terms and Conditions and Turnkey Privacy Policy.
4.1 Fees, Invoicing, and Payment.
Customer will pay all fees specified in the Order. Payment obligations are non-cancelable and, except as expressly set forth herein, fees paid are non-refundable. All fees will be invoiced by Dynamic in accordance with the terms set forth in the Order. Full payment for invoices issued must be received within the applicable time period set forth in the Order. If any fees owed by Customer have not been paid by the applicable due date, Dynamic reserves the right to apply a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, and be reimbursed for all expenses of collection.
4.2 Taxes.
The fees are exclusive of, and Customer will be solely responsible for, all applicable taxes in connection with this Agreement, including any sales, use, excise, value-added, goods and services, consumption, and other similar taxes or duties (but excluding taxes based on Dynamic’s net income). Should any payment for the Services provided by Dynamic be subject to withholding tax by any taxing authority, Customer will reimburse Dynamic for such withholding tax.
5.1 Dynamic Property.
Subject to the limited rights expressly granted to Customer hereunder, Dynamic reserves and retains, and as between Dynamic and Customer, and exclusively owns, all rights, title, and interest in and to the Service, including all modifications, derivative works, upgrades, and updates thereto, and all related intellectual property rights therein. No rights are granted by Dynamic hereunder other than as expressly set forth herein. If Customer or any Authorized User provides Dynamic any feedback or suggestions regarding the Service (the “Feedback”), Client hereby assigns, transfers, and conveys all of its right, title, and interest to such Feedback to Dynamic, and Dynamic shall be the sole, and exclusive owner of such Feedback and shall have the right to make use of such Feedback for any purpose it may deem appropriate without any obligation or compensation to Customer or any Authorized User. To the extent the Client provides Dynamic with any feedback relating to the information or services provided by Dynamic (including, without limitation, feedback related to usability, performance, interactivity, bug reports, and test results) (“Feedback”), Client hereby assigns, transfers and conveys all of its right, title, and interest in and to such intellectual property to Dynamic.
5.2 Customer Data.
Customer grants to Dynamic and its Affiliates a worldwide, non-exclusive, license to access, use, copy, distribute, perform, and display Customer Data, and provide necessary access to third-party service providers acting on Dynamic’s behalf, such as Dynamic’s hosting services provider, only: (a) as necessary to provide, maintain, and update the Service in a manner that is consistent with this Agreement and Dynamic’s Privacy Policy; (b) to prevent or address service or technical problems or at Customer's request in connection with support matters; (c) as compelled by law; or (d) as expressly permitted in writing by Customer. Subject to the limited licenses granted herein, Dynamic acquires no right, title, or interest under this Agreement in or to any Customer Data.
5.3 Analyses.
Customer acknowledges and agrees that Dynamic may (i) compile statistical and other information related to the performance, operation, and use of the Service, and (ii) collect, use, and analyze information derived from Customer Data in de-identified form to create statistical analyses, to improve and enhance the Service, and for research and development purposes in connection with the Service or any other Dynamic offerings (collectively “Analyses”). Dynamic retains all rights, titles, and interests, including all intellectual property rights, in and to Analyses. For clarity, Analyses do not constitute Customer Data.
6.1 Definition.
“Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including all copies thereof. Confidential Information of Customer includes Customer Data. Confidential Information of Dynamic includes the Service (including its software and content, other than Customer Data)..Confidential Information of each Party also includes the terms of this Agreement. However, Confidential Information will not include any information that: (a) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party without use of or reliance on the Confidential Information of the Disclosing Party.
6.2 Protection.
The Receiving Party will: (a) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care); (b) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and (c) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of the Receiving Party’s and its Affiliates’ employees, contractors, and agents who need such access for purposes consistent with this Agreement and who are subject to confidentiality obligations at least as restrictive as those herein. The Receiving Party will provide prompt written notice to the Disclosing Party of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information. Upon request of the Disclosing Party during the Term, the Receiving Party will promptly return, or at the Disclosing Party’s option destroy, any or all Confidential Information of the Disclosing Party in the Receiving Party’s possession or under its control.
6.3 Compelled Disclosure.
The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided that the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's expense, if the Disclosing Party wishes to contest the access or disclosure.
6.4 Data Processing Approvals.
Except to the extent otherwise specified in the applicable Order, Customer is solely responsible for providing all necessary notices and obtaining, and represents and covenants that it has obtained or will obtain prior to processing by Dynamic, all necessary consents, licenses, and approvals for the processing of any Customer Data (and any Personal Information) as part of the Service in a manner that is consistent with this Agreement and Dynamic’s Privacy Policy.
6.5 Regulatory Compliance.
Customer may select the Personal Information it elects to process using the Dynamic Platform in its sole discretion; Dynamic has no control over the nature, scope, or origin of, or the means by which Customer acquires, Personal Information processed by the Service. Subject to Section 6.4 above, Dynamic will comply, and will ensure that its employees and subcontractors comply (to the extent such subcontractors process Personal Information), with the requirements of state, federal and national privacy laws and regulations governing Personal Information in Dynamic’s possession or under its control and applicable to Dynamics’s provision of the Service. Customer is solely responsible for (i) ensuring that it complies with any legal, regulatory, or similar restrictions applicable to the types of data Customer elects to process with the Dynamic Platform, and (ii) Customer’s decision not to adopt updates or best practices that Dynamic makes available to Customer.
7.1 Mutual Representations.
Each Party represents that: (a) it is duly organized, validly existing, and in good standing under its jurisdiction of organization and has the right to enter into this Agreement; (b) the execution, delivery, and performance of this Agreement are within the corporate powers of such Party and have been duly authorized by all necessary corporate action on the part of such Party, and constitute a valid and binding agreement of such Party; (c) the execution, delivery and performance of this Agreement does not and will not contravene or conflict with or constitute a default or violation of any terms of any other agreement to which such Party is a party; and (d) it will comply with all applicable anti-corruption, anti-money laundering, economic and trade sanctions, export controls, and other international trade laws, regulations, and governmental orders in the jurisdictions that apply directly or indirectly to the Services, including, without limitation, with the requirements of the United States Office of Foreign Assets Control (“OFAC”) Sanctions Programs applicable to such Party.
7.2 Dynamic Warranties.
Dynamic warrants to each Customer that the Service will perform materially in accordance with the applicable Documentation. If Dynamic breaches any of the foregoing warranties in this Section, Customer’s exclusive remedy and Dynamic’s entire liability will be the correction of the breach, or if Dynamic cannot substantially correct the breach within a commercially reasonable amount of time, Customer may terminate this Agreement and Dynamic will refund to Customer any prepaid fees covering the period remaining in the Term after the effective date of such termination.
7.3 Customer Warranties.
Customer warrants and represents that it: (a) has obtained and will maintain all rights, consents, and permissions necessary for Customer to access and use the Service, and to make available the Customer Data to Dynamic for its use as contemplated herein, (b) has provided and will continue to provide adequate notices, and that you have obtained and will continue to obtain the necessary permissions and consents, to provide Customer Data to Dynamic for processing pursuant to Section 5.2 hereinabove; (c) acknowledges that the internet and telecommunications networks are inherently insecure and that Dynamic will have no liability for any changes to, interception of, or loss of Customer Data while in transit via the internet or a telecommunications provider’s network. Beta offerings are provided “as is” and “as available” with no warranties and Dynamic will have no liability and no obligation to indemnify for any beta offering whatsoever; (d) is not engaged in the business of offering illegal or controlled products or services including, without limitation, firearms, explosives, dangerous materials, drugs, pornography, illegal gambling, human trafficking, wildlife trade, products and services derived from endangered or threatened species or other activities which may be considered illegal, dangerous or harmful and (e) is not located, ordinarily resident, organized, established, or domiciled in Cuba, Iran, North Korea, Syria, the Crimea, Donetsk, and Luhansk Regions of Ukraine, or any other country or jurisdiction against which the U.S. maintains comprehensive economic sanctions or an arms embargo.
7.4 Disclaimer.
EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED TO THE CUSTOMER IN SECTION 7.2, AND TO THE EXTENT PERMITTED BY LAW, THE SERVICE, AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND ANY USE IS AT CUSTOMER’S DISCRETION AND RISK. DYNAMIC MAKES NO WARRANTIES OF ANY KIND, AND DYNAMIC EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. DYNAMIC DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ANY CUSTOMER DATA WILL BE ACCURATE OR COMPLETE OR THAT DYNAMIC WILL MAINTAIN ANY DATA WITHOUT LOSS. DYNAMIC SPECIFICALLY MAKES NO AND HEREBY DISCLAIMS ALL, REPRESENTATIONS, WARRANTIES, AND COVENANTS THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR ACHIEVE ANY RESULTS.
8.1 Dynamic Indemnification.
Dynamic will defend Customer and its Affiliates from and against any lawsuit or proceeding brought by a third party to the extent alleging that Customer’s use of the Service as permitted hereunder infringes or misappropriates such third party’s intellectual property rights, and Dynamic will indemnify Customer and its Affiliates for any damages and any reasonable attorneys’ fees finally awarded against them arising from such lawsuit or proceeding. Notwithstanding the foregoing, Dynamic will have no liability under this Section to the extent any such lawsuit or proceeding arises from: (a) Customer Data; (b) Customer’s or any of its Affiliates’ or Authorized Users’ negligence, misconduct, or breach of this Agreement; or (c) any modification or combination of the Service that is not performed or approved by Dynamic or specifically set out in the Documentation.
8.2 Customer Indemnification.
Customer will defend Dynamic and its Affiliates from and against any lawsuit or proceeding brought by a third party to the extent alleging that any Customer Data infringes, misappropriates, or otherwise violates the rights, including privacy and publicity rights, of any other party, or that Customer’s or any Authorized User’s particular use of the Service violates applicable law. Customer will indemnify Dynamic and its Affiliates for any damages finally awarded against them arising from such lawsuit or proceeding and any reasonable attorneys’ fees.
8.3 Exclusive Remedy.
This Section 8 states the indemnifying party’s sole liability, and the indemnifying party’s exclusive remedy, for any type of claim described in this Section 8.
9.1 Exclusion of Certain Damages.
IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR LOSS OF DATA OR INACCURATE DATA, FAILURE OF SECURITY MECHANISMS, FINANCIAL LOSSES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL, COVER, OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
9.2 Liability Cap.
TO THE EXTENT PERMITTED BY LAW, AND EXCEPT FOR EACH PARTY’S LIABILITY UNDER SECTION 4, OR LIABILITY FOR BREACH OF CONFIDENTIALITY OBLIGATIONS UNDER SECTION 6, IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY RELATING TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY CUSTOMER TO DYNAMIC HEREUNDER IN THE 12 MONTHS PRECEDING THE DATE ON WHICH THE FIRST CLAIM GIVING RISE TO LIABILITY AROSE. MULTIPLE CLAIMS WILL NOT ENLARGE THIS LIMITATION.
9.3 Scope.
For the avoidance of doubt, the exclusions and limitations set forth in Section 9.1 and Section 9.2, will apply with respect to all legal theories of liability, whether in contract, tort, or otherwise. The Parties agree that the exclusions and limitations set forth in Section 9.1 and Section 9.2 allocate the risks between the Parties under this Agreement, and that they have relied on these exclusions and limitations in determining whether to enter into this Agreement.
10.1 Term of the Agreement.
The term of this Agreement commences on the effective date set forth in the Order and, unless earlier terminated in accordance with the terms of this Agreement, will continue for the “Initial Term” specified in the Order (the “Initial Term”). THEREAFTER, THIS AGREEMENT WILL AUTOMATICALLY RENEW FOR SUCCESSIVE ADDITIONAL PERIODS OF THE SAME DURATION (EACH, A “RENEWAL TERM”) UNLESS EITHER PARTY PROVIDES THE OTHER PARTY WITH WRITTEN NOTICE OF NON-RENEWAL AT LEAST 30 DAYS PRIOR TO THE EXPIRATION OF THE INITIAL TERM OR THE THEN-CURRENT RENEWAL TERM. Customer agrees that Dynamic may modify the fees for each Renewal Term by providing Customer with written notice of such modification at least 10 days prior to the expiration of the Initial Term or the then-current Renewal Term, as applicable. The Initial Term and each Renewal Term, if any, are collectively referred to herein as the “Term.”
10.2 Termination for Cause.
Dynamic or Customer may terminate this Agreement effective after 30 days written notice via e-mail, first class mail, or overnight mail if the other Party materially breaches this Agreement and such breach is not cured within such 30-day period. Notice is effective upon receipt by Dynamic. Upon any termination for cause by Customer, Dynamic will promptly refund Customer any prepaid fees covering the period remaining in the Term after the effective date of such termination. Upon any termination for cause by Dynamic, Customer will promptly pay Dynamic any unpaid fees covering the period remaining in the Term after the effective date of such termination.
10.3 Suspension.
Dynamic may suspend Customer’s or any or all Authorized Users’ access to the Service, in whole in part, if: (a) Customer or any Authorized User is using the Service in violation of this Agreement or any applicable law; (b) Customer’s or any Authorized Users’ systems or accounts have been compromised or unlawfully accessed; (c) suspension of the Service is necessary, in Dynamic’s reasonable discretion, to protect the security of the Service or the infrastructure of Dynamic or its Affiliates; (d) suspension is required by applicable law; or (e) any fees owed by Customer (excluding amounts disputed in reasonable and good faith) are 30 days or more overdue.
10.4 Effects of Termination.
In no event will any termination of this Agreement relieve Customer of its obligation to pay any fees incurred to Dynamic for the period of time prior to the effective date of such termination. Upon any termination of this Agreement, Customer and all Authorized Users must immediately cease all use of the Service. Dynamic will have no obligation to maintain or provide any Customer Data. Upon any termination of this Agreement and the Disclosing Party’s request, the Receiving Party will promptly return, or at the Disclosing Party’s option destroy, any or all Confidential Information of the Disclosing Party in the Receiving Party’s possession or under its control.
10.5 Survival.
The sections titled “Fees,” “Protection of Customer Data,” “Fees,” “Proprietary Rights,” “Confidentiality,” “Indemnification,” “Limitation of Liability,” “Termination for Cause,” “Effects of Termination,” “Survival,” and “General Provisions” will survive any termination of this Agreement.
11.1 Force Majeure.
Except for payment obligations, neither Party will be liable hereunder by reason of any failure or delay in the performance of its obligations due to events beyond the reasonable control of such Party, which may include natural disasters, fires, epidemics, pandemics, riots, war, terrorism, denial of service attacks, internet outages, labor shortages, and judicial or government action.
11.2 Assignment.
Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other Party. Notwithstanding the foregoing, either Party may assign or transfer this Agreement in its entirety, without the consent of the other Party, in connection with a name change or merger or sale of all or substantially all of its assets. Any purported assignment in violation of this Section will be null and void. This Agreement will bind and inure to the benefit of the Parties, their respective successors, and permitted assigns.
11.3 Governing Law; Venue.
This Agreement and all questions relating to its validity, interpretation, performance, remediation, and enforcement (including, without limitation, provisions concerning limitation of actions) shall be governed by and construed in accordance with the laws of the State of Delaware, notwithstanding any choice-of-laws doctrines of such jurisdiction or any other jurisdiction which ordinarily would cause the substantive law of another jurisdiction to apply, without the aid of any canon, custom or rule of law requiring construction against the drafter.
The Parties hereby waive their respective rights to a jury trial in any future action or proceeding and agree that any dispute or claim arising to or in any way related to this Agreement may be settled by arbitration in San Francisco, California. The Parties agree that any arbitration will be administered by Judicial Arbitration & Mediation Services, Inc. (“JAMS”) pursuant to its Comprehensive Arbitration Rules & Procedures (the “JAMS Rules”) using a single arbitrator. The Parties agree that the arbitrator shall have the power to decide any motions brought by any Party to the arbitration, including motions for summary judgment and/or adjudication and motions to dismiss and demurrers, prior to any arbitration hearing. The Parties agree that the arbitrator shall issue a written decision on the merits. The Parties agree that the arbitrator shall administer and conduct any arbitration in a manner consistent with the JAMS Rules, and that the arbitrator shall apply substantive and procedural Delaware law to any dispute or claim, without reference to rules of conflict of law. To the extent that the JAMS Rules conflict with Delaware law, Delaware law shall take precedence. In the event the Parties agree that the total amount in controversy is not more than $75,000, subject to JAMS' Streamlined Arbitration Rules and Procedures, the Parties agree to conduct such arbitration proceeding telephonically or via Zoom. Within reasonable limitations and acknowledging each Party's desire to have limited discovery proceedings, the scope and duration of discovery will be within the sole discretion of the arbitrator. Subject to liability limitations stated here in this Agreement, the arbitrator may grant any remedy or relief available under applicable law, including, without limitation, injunctive relief and specific performance. The arbitrator’s decision or award shall be fully enforceable and subject to an entry of judgment by a court of competent jurisdiction. The arbitrator shall not have the power to commit errors of law or legal reasoning, and the commission of an error of law or legal reasoning shall be grounds for vacating or correcting the award. Each Party shall pay the fees of their respective attorneys and any other expenses connected with the arbitration, but all other costs of this arbitration, including the fees of the arbitrator, cost of any record or transcript of the arbitration, administrative fees, and other fees and costs, shall be shared equally by the parties. The party losing the arbitration shall reimburse the party who prevailed for all expenses the prevailing party paid pursuant to the preceding sentence and for all reasonable attorneys’ fees (as determined by the Arbitrator) incurred by the prevailing party in connection with the arbitration proceeding. A demand for arbitration shall be made within a reasonable time after the claim, dispute, or other matter has arisen, and in no event shall such demand be made after the date when institution of legal or equitable proceedings based on such claim, dispute, or other matter in question would be barred by the applicable statute of limitations. The decision of arbitrators shall be rendered within sixty (60) days of submission of any claim or dispute, shall be in writing and mailed to all the parties included in the arbitration. The decision of the arbitrator shall be binding upon the parties and judgment in accordance with that decision may be entered in any court having jurisdiction thereof.
11.4 Notices.
All notices under this Agreement will be in writing addressed to the Parties at the addresses set forth on the Order and will be deemed to have been duly given: (a) upon receipt if personally delivered or sent by certified or registered mail with return receipt requested; and (b) the first business day after sending by email or by next day delivery by a recognized overnight delivery service. Dynamic may provide notices to Invitees via the Service and will be deemed to have been duly given when posted or made available on the Service.
11.5 Relationship of the Parties; Third-Party Beneficiaries.
The Parties are independent contractors and this Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. There are no third-party beneficiaries to this Agreement.
11.6 Waiver.
No failure or delay by either Party in exercising any right under this Agreement will constitute a waiver of that right.
11.7 Severability.
If any provision of this Agreement is held to be invalid or unenforceable, such provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in full force and effect.
11.8 Entire Agreement.
This Agreement, including any addenda hereto and all Orders constitutes the entire agreement between the Parties and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning Customer’s purchase and use of the Service. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by each of the Parties. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any addendum hereto or any Order, the terms of the Order will prevail. As used herein, the words “include” and “including” shall be deemed to be followed by the words “without limitation.”