Marketplace Analytics Ltd (the “Company”), trading as Takealytics provides cloud-based services for businesses that sell on e-commerce marketplaces such as takealot.com (collectively, the “Services”). This Terms of Use Agreement (“Agreement”) is made and entered into by and between you (“You” or “Your”), the user of one or more of these Services, and Marketplace Analytics Ltd, a limited company registered in England and Wales (Registration number: 15921630).

The terms of this Agreement are intended to apply to Your use of the Services of the Company. This Agreement will be effective when You subscribe to the Services of the Company. If You do not wish to be bound by the terms of this Agreement, You must not use the Services of the Company. The Company reserves the right to change, modify, rescind, or remove the terms of this Agreement at any time and without prior notice. Your continued use of any of the Services after a change, modification, recission, or removal of the terms of this Agreement constitutes Your manifestation of asset to such change, modification, recission, or removal. If You do not agree with these terms, You must immediately discontinue Your use of the Services.

NOTICE OF ARBITRATION. THIS TERMS OF USE AGREEMENT CONTAINS AN ARBITRATION PROVISION AND CLASS ACTION WAIVER THAT APPLIES TO ALL CLAIMS EXCEPT FOR CLAIMS OF INTELLECTUAL PROPERTY INFRINGEMENT OR THOSE THAT CAN BE BROUGHT IN SMALL CLAIMS COURT. EXCEPT AS OTHERWISE STATED UNDER THE TERMS OF THIS AGREEMENT, AND IF YOU DO NOT OPT-OUT OF ARBITRATION AS SET FORTH BELOW, YOU AGREE THAT ANY AND ALL DISPUTES BETWEEN YOU AND THE COMPANY WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND YOU WAIVE YOUR RIGHT TO BRING OR RESOLVE ANY DISPUTE AS, OR PARTICIPATE IN, A CLASS, CONSOLIDATED, REPRESENTATIVE, COLLECTIVE, OR PRIVATE ATTORNEY GENERAL ACTION OR ARBITRATION. NOTICE OF LIMITATION OF LIABILITY. THIS TERMS OF USE AGREEMENT CONTAINS A LIMITATION OF LIABILITY CLAUSE THAT LIMITS THE COMPANY’S LIABILITY’S MONETARY LIABILITY TO THE AMOUNT YOU HAVE PAID TO THE COMPANY FOR ITS SERVICES. YOU ARE INSTRUCTED TO REVIEW THIS LIMITATION OF LIABILITY AND, IF YOU DO NOT AGREE WITH IT, TO DISCONTINUE YOUR USE OF THE SERVICES IMMEDIATELY.

1. Warranties

You warrant and agree that You have the right and legal capacity to enter into this Agreement and to adhere to its terms and conditions. You warrant that You are a human individual that is eighteen (18) years of age or older and that You are not a bot, script, or other computer or machine. You warrant that You are not prohibited from assenting to this Agreement by any pre-existing Agreement. If You are using the Website on behalf of a third party, including but not limited to a business entity, You warrant that You are the authorised representative of that third party and have the authority to bind that third party to the terms of this Agreement.

2. User Account

The Company may provide You with the ability to register a user account (“User Account”), which will provide access to the Services. Your User Account is protected by a username and magic link. You recognize that You are solely responsible for maintaining the security and confidentiality of Your username and magic link and that You are responsible for any unauthorised access to Your User Account. In the event Your User Account is accessed without Your authorization, You agree to notify the Company immediately. The Company reserves the right to restrict access to, suspend, disable, or delete Your User Account at any time, in its sole discretion, and without prior warning.

3. Privacy Policy

The Company has adopted a privacy policy (“Privacy Policy”) to disclose to You its collection, use, and disclosure of personal and personally identifiable information. You are directed to review the Company’s Privacy Policy, which is hereinafter incorporated by reference.

4. Licence

Subject to the terms of this Agreement and conditional upon timely payment for any Services licensed through Your User Account, Company grants You a limited, non-exclusive, non-transferable, worldwide, and revocable licence to use the Services in executable form and for their customary and intended purposes.

5. Licence Conditions

As a condition of the licence granted to You under the terms of this Agreement, and except where otherwise expressly allowed under the terms of this Agreement, You are expressly prohibited from the following:

1. Distributing, framing, emulating, cloning, publishing, displaying, selling, assigning, sublicensing, renting, leasing, loaning, modifying, publicly displaying, publicly performing, creating derivative works of, translating, or adapting the Services;

2. Decompiling, reverse engineering, disassembling, or hacking the Services;

3. Scraping, caching, or utilising the Services through a proxy;

4. Unless otherwise allowed under a group licence, granting more than one user access to the Services;

5. Circumventing the Services’ technology protection measures;

6. Infringing upon the intellectual property or other proprietary rights of Company;

7. Exporting the Services in violation of the export controls or regulations of the laws of Your country or any other country’s laws or regulations;

8. Using the Services to violate any applicable law, statute, regulation, ordinance, or treaty, whether national or international;

9. Using the Services to violate the policies of any third party marketplace or platform, including, but not limited to, Takealot.com;

10. Using the Services to violate the rights of third parties, including, but not limited to, personal and proprietary rights; and

11. Removing or altering any proprietary notices contained within the Services, including, but not limited to, copyright, patent, and trademark notices.

    
    

6. Description, Access, and Use of the Services. 

The Company provides software services to aid e-commerce marketplace sellers in tracking product performance on Takealot.com. The Company provides access to the ability to scan Takealot by means of advanced algorithms that provides access to estimated sales metrics, competitor stock levels, dozens of filters, average periods of rank and price, product variation analysis, and saved product folders. Since the Company relies on the accuracy of third-party retailer websites, the information provided by the Company cannot always be accurate or complete. You understand and agree that Marketplace Analytics Ltd will not be held liable for inaccuracies in third party websites.

7. User-Generated Content

To perform the Services, the Company may provide you with the ability to upload, contribute, or transmit user-generated content to the Services through Your User Account, including, but not limited to, listings text, photographs, images, videos, URLs, and other files (collectively “User-Generated Content”). You warrant that your User-Generated Content will not (i) violate any law, statute, regulation, or ordinance, whether local, state, provincial, national, or international, (ii) violate any term or condition of this Agreement, or (iii) violate the rights of third parties, including intellectual property rights and any other personal or proprietary rights. By submitting User Generated Content to the Services, you grant the Company a non-exclusive, irrevocable, royalty free, worldwide, and perpetual licence to use your User-Generated Content for the customary and intended purposes of the Services. The customary and intended purposes of the Services may include, but are not limited to, creating or maintaining user profiles, drafting product descriptions, titles, blog posts, and social media posts, as well as archiving or making backup copies of Your User Generated Content. By submitting User-Generated Content to the Services, you waive all moral rights or rights of publicity or privacy with respect to the User-Generated Content submitted to the Services. When providing User-Generated Content to the Services, You warrant that your User Generated Content will be accurate, truthful, non-deceptive, and complete.

8. Proprietary Rights

You understand and agree that the Services, including, but not limited to, their source code, data, selection and arrangement, executable code, structure, and organisation, contains the valuable trade secrets and intellectual property of Company. Under the terms of this Agreement, You do not acquire any ownership rights to the Services or the data contained therein. You acquire only a limited licence to use the Services subject to the terms of this Agreement. All other rights are reserved by Company.

9. Payments

1. Subscription Fee. When You register and use a User Account to access the Services, You may be charged a subscription fee (“Subscription Fee”) by the Company. The Subscription Fee will be payable at the times specified by Company on the website associated with the Services and may be billed on a reoccurring basis. All Subscription Fee payments for the Services are non-refundable. You represent and warrant that You will timely pay all fees and charges and You agree that the Company will charge Your payment method on a reoccurring basis. The Company reserves the right to terminate Your User Account and access to the Services for Your failure to timely pay. All Subscription Fees will be quoted and payable in Rand. You agree that You will not initiate any chargebacks against the Company unless approved by the Company in writing. You understand and agree that You will be held responsible for any costs or fees associated with any unauthorised chargebacks. Any disputes as to payment must be brought to the Company’s attention in writing within thirty (30) days or will otherwise be barred.

2. Cancellation. You may cancel Your subscription to the Services at any time by using the cancel account link located within your User Account. If You cancel the Services during a weekly, monthly, or yearly membership cycle, You will retain access to the Services until the end of that period. No refunds will be given for weekly, monthly, or annual memberships once the period of subscription has started.

3. Payment. All payment processing for Marketplace Analytics Ltd is done by Stripe. The Stripe Privacy Policy applies to your usage of the Services. Marketplace Analytics Ltd does not store, process, or see any of your payment data, including but not limited to credit card information or Stripe passwords. There are no hidden fees other than stated in www.takealytics.co.za (Pricing section) and explained herein. You may cancel your subscription at any time.

4. Billing Cycles. The fees for Your Plan are billed in advance of each billing cycle. If You upgrade your Plan level, You will immediately be charged for the increased price of the upgraded Plan, prorated to reflect the remaining duration of your subscription period, and You will be charged the full amount of the then-current rate for the new Plan, as provided at www.takealytics.co.za (Pricing section), beginning with your next billing cycle. If You downgrade your Plan level, You will have a negative balance stated in your Account, which will be subtracted (prorated) from the full amount of the then-current rate in the very next billing cycle. Afterwards, next billing cycles will have the then-current rate without a proration. But be aware that downgrading Your Plan may cause the loss of Account content, features, capacity, or other losses. Marketplace Analytics Ltd disclaims liability for any such loss.

   
   

10. Affiliates

a. The following terms apply to those who participate in the Company’s Affiliate Programme.

b. Definitions.

1. “Affiliate” is defined as any individual or business entity that has assented to this Agreement and is authorised to participate in the Affiliate Programme under the terms of this Agreement.

2. “Advertising Materials” is defined as pay per click advertisements, display advertisements, landing pages, web pages, newsletters, email blasts, hypertext links, or other content used to advertise the availability of the Company’s Services.

3. "Customer" means any person or entity who successfully purchases a Service from the Company.

4. “Lead” is defined as an individual or business entity that contacts the Company through efforts that are directly attributable to Affiliate.

5. “Referral Fee” is defined as the amount paid by Company to Affiliate for Customers.

6. “User” is defined as a potential lead, including, but not limited to, users of third-party websites.

   
   

c. Participation in Affiliate Program. Company will pay Affiliate a Referral Fee for all Customers. The Referral Fee paid by Company will be negotiated by and between Company and Affiliate and may be amended, modified, replaced, or suspended from time to time. Company reserves the right to amend, modify, replace, or suspend the Referral Fee paid to Affiliate at any time and within its sole and absolute discretion. Company will approve Leads within its sole and absolute discretion and consistent with its established policies for accepting or rejecting Customers. By participating in the Affiliate Program, Affiliate warrants and agrees that it will not circumvent, tamper with, modify, or compromise the technological tracking and protection measures implemented by Company in furtherance of the Affiliate Program, including, but not limited to, the unauthorised modification of the number of Customers calculated by Company. Affiliate’s failure to strictly comply with the terms and conditions of this Agreement may result in the forfeiture of any Referral Fees owed to Affiliate pursuant to this Agreement.

d. Approval of Advertising Materials. Affiliate may advertise the services of the Company in compliance with the terms of this Agreement. Affiliate is expressly prohibited from advertising the services of the Company in association with:

1. Websites or other services that collect personal or personally identifiable information from a User without his or her express consent;

2. Websites or other services that contain or display obscene, sexually explicit, illegal, pornographic, racist, offensive, or derogatory content;

3. Websites or other services that promote bodily harm to or harassment of third parties;

4. Websites or other services that violate the rights of third parties, including intellectual property or other personal or proprietary rights;

5. Websites or other services that violate any applicable law, statute, treaty, regulation, or ordinance, whether local, state, provincial, national, or international; and

6. Websites or other services that contain any other objectionable content to be defined within Company’s sole and absolute discretion.

Affiliate may use Advertising Materials to truthfully and accurately advertise the availability of the Company’s Services consistent with the terms of this Agreement. Affiliate agrees to comply with all applicable advertising laws, regulations, ordinances, statutes, or treaties, whether local, state, provincial, national, or international, including, but not limited to, the CAN SPAM Act, Part 255 of the FTC false advertising regulations, and state false advertising law. Company reserves the right to terminate this Agreement and cancel Affiliate’s participation in the Affiliate Program for Affiliate’s failure to comply with this paragraph.

e. Payments. Company will calculate the amount of revenue from Customers generated by Affiliate and pay Affiliate for all Customers on a monthly basis. Within thirty (30) days of the end of each month, Company will calculate the amount of revenue from Customers generated by Affiliate and provide Affiliate with a report disclosing the Referral Fee amount to be paid to Affiliate. Company will then remit payment to Affiliate at the address or banking information provided by Affiliate and stored within the records of Company. In the event the Referral Fee to be paid to Affiliate in any quarter is less than R1000, Company will hold the Referral Fee to be paid to Affiliate until the next quarter in which the Referral Fee to be paid to Affiliate equals or exceeds R1000. Affiliate understands and agrees that he or she has an ongoing duty to update its contact information if and when it changes and, in the event any Referral Fee is returned to Company due to an incorrect address, Company will not resend or reissue the returned Referral Fee to Affiliate.

f. Term and Termination for Participation in Affiliate Program. The following Term and Termination Terms apply solely to participation in the Affiliate Program. Each party may terminate this Agreement with respect to the participation in the Affiliate Program at any time and without cause. Either party may terminate this Agreement if the other party is in material breach of this Agreement and has not cured such breach within five (5) calendar days of written notice from the non-breaching party that specifies the breach. Company may terminate this Agreement if, at any time, Affiliate (i) breaches any term or condition of this Agreement; (ii) becomes insolvent or files an assignment for the benefit of creditors; (iii) is the subject of an insolvency proceeding, including, but not limited to, an involuntary bankruptcy; (iv) violates the rights of third parties, including, but not limited to, intellectual or other personal or proprietary rights; or (iv) voluntarily files a petition for bankruptcy. Termination of this Agreement hereunder will not limit either party from pursuing any other remedies available to it, including injunctive relief. Any provision of this Agreement that contemplates performance or observance subsequent to termination or expiration of this Agreement will survive termination or expiration hereof and will continue in full force and effect.

g. Competitive Services. Affiliate agrees that during the term of this Agreement it will not promote or sell (either for its own account or as agent or representative for another) any service competitive to the services of the Company and will not become involved as a partner, shareholder, officer, director, employee, principal, consultant or in any other way, either directly or indirectly, in any corporation or other entity which promotes, sells, or manufactures any competitive product. Affiliate agrees that the subject matter, geographic area and duration of this paragraph are reasonable and necessary for the protection of the Company.

h. Limitation of Liability Under Affiliate Program. EXCEPT AS OTHERWISE PROVIDED HEREIN, THE AFFILIATE PROGRAM, ITS USE, AND AFFILIATE’S RESULTS OF SUCH USE ARE PROVIDED ON AN “AS IS” BASIS. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, COMPANY MAKES NO WARRANTIES (INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR THE ABSENCE OF LATENT OR OTHER DEFECTS), GUARANTEES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS, OR OTHER INDUCEMENTS, EXPRESS, IMPLIED, ORAL, WRITTEN, OR OTHERWISE, EXCEPT AS EXPRESSLY SET FORTH HEREIN. NEITHER PARTY IS RESPONSIBLE FOR DELAYS CAUSED BY ACCIDENT, WAR, ACTS OF GOD, EMBARGO, COMPUTER SYSTEM FAILURE OR ANY OTHER CIRCUMSTANCE BEYOND ITS CONTROL. COMPANY WILL MAKE EVERY REASONABLE EFFORT TO MEET SCHEDULED OR ESTIMATED DELIVERY DATES BUT MAKES NO GUARANTEE AND ACCEPTS NO LIABILITY FOR ITS FAILURE TO MEET SAID DATES. NEITHER PARTY SHALL BE LIABLE FOR ANY PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES OR INDIRECT, INCIDENTAL OR CONSEQUENTIAL LOSSES, COSTS OR EXPENSES OF ANY KIND WHATSOEVER AND HOWEVER CAUSED, WHETHER ARISING UNDER CONTRACT, TORT, NEGLIGENCE, STATUTE OR OTHERWISE, INCLUDING (WITHOUT LIMITATION) LOSS OF PRODUCTION, LOSS OF OR CORRUPTION TO DATA, LOSS OF PROFITS OR OF CONTRACTS, BUSINESS INTERRUPTION, LOSS OF OPERATION TIME AND LOSS OF GOODWILL OR ANTICIPATED SAVINGS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSS, COST OR EXPENSE. OTHER THAN AS SET FORTH HEREIN, EACH PARTY’S TOTAL OBLIGATIONS AND/OR LIABILITY, IF ANY HEREUNDER, SHALL BE LIMITED TO THE AMOUNTS COMPANY HAS PAID TO AFFILIATE.

i. Indemnification. Affiliate assumes full and complete responsibility and liability for its participation in the Affiliate Program and will indemnify and hold the Company, its directors, officers, employees, and agents harmless from and against all demands, claims, or liability arising out of or relating to Affiliate’s Advertising Materials or Affiliate’s participation in the Affiliate Program. Affiliate warrants that its Advertising Materials will be truthful, accurate, and will comply with all local, state, federal, and international laws concerning the advertisement and sale of goods or services. Affiliate understands and agrees that it will indemnify, defend, and hold harmless the Company, its officers, directors, employees, affiliates, independent contractors, and agents, for any and all damages, losses, claims, actions, costs, judgments, liabilities, and expenses, including attorneys’ fees and costs, arising out of or related to any: (i) claim by any third party that any Advertising Materials infringe a third party’s copyright, trademark, patent, trade secret, or other intellectual property rights; (ii) claim by any third party that any Advertising Materials violate the rights of a third party, are defamatory or obscene, or violate any ordinance, law, regulation, or other judicial or administrative action; or (iii) breach by Affiliate of any representation or warranty set forth in this Agreement. A third party means any entity other than the parties to this Agreement and their respective directors, officers, employees, and agents. If any action is or will be brought against the Company with respect to any allegation for which indemnity may be sought, Affiliate will provide reasonable cooperation to the Company, at Affiliate’s expense, to defend against or settle any such claim. Affiliate’s obligation to defend the Company under the terms of this Agreement will not provide Affiliate with the ability to control the Company’s defence, and the Company reserves the right to control its defence and select its counsel.

11. Third-Party Services

Through Your use of the Services, You may interact with third party services or websites that are not under the Company’s ownership or control. You understand and agree that the Company cannot be held liable for Your use of third party services and You are directed to review the terms and privacy policies adopted by all third party service providers.

12. Taxes

You agree that You will pay all taxes assessed by governmental bodies, whether local, state, provincial, national, or international, associated with Your use of the Services. The Company will report as income all payments received from You to the Company to all proper taxing authorities.

13. Term and Termination

The term of this Agreement will begin upon Your first accessing of the Services and will continue until the earlier of the following: (i) Company terminates Your access to the Services; or (ii) You cease using the Services and terminate Your User Account. The Company reserves the right to terminate the Services or Your access to the Services in its sole and absolute discretion and without prior notice.

14. Disclaimer of Warranties and Limitation of Liability

YOU ACKNOWLEDGE AND AGREE THAT THE SERVICES ARE PROVIDED ON AN “AS-IS” BASIS AND WITHOUT WARRANTY OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, SECURITY, AND NON-INFRINGEMENT. WHEREVER PERMITTED BY LAW, YOU ACKNOWLEDGE THAT THE COMPANY WILL NOT BE HELD RESPONSIBLE OR LIABLE FOR ANY CLAIMS, DAMAGES, JUDGMENTS, CHARGES, OR FEES ARISING OUT OF OR RELATED TO YOUR USE OF OR ACCESS TO THE SERVICES, INCLUDING, BUT NOT LIMITED TO, COMPENSATORY DAMAGES, CONSEQUENTIAL DAMAGES, SPECIAL DAMAGES, INCIDENTAL DAMAGES, PUNITIVE DAMAGES, EXEMPLARY DAMAGES, COSTS AND ATTORNEYS’ FEES, DAMAGES ARISING OUT OF ERRORS OR OMISSIONS, AND DAMAGES ARISING OUT OF THE UNAVAILABILITY OF THE SERVICES OR DOWNTIME. YOU ACKNOWLEDGE THAT THE COMPANY MAKES NO GUARANTEE OR REPRESENTATION OF ANY KIND CONCERNING THE SERVICES, INCLUDING ANY GUARANTEE OR REPRESENTATION THAT YOU WILL OBTAIN A PARTICULAR OUTCOME THROUGH YOUR USE OF THE USE OF THE SERVICES OR THAT YOU WILL OBTAIN A CERTAIN RESULT THROUGH YOUR USE OF THE SERVICES. YOU ACKNOWLEDGE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK AND THAT COMPANY’S LIABILITY IS LIMITED TO THE AMOUNT THAT YOU PAID TO USE THE COMPANY SERVICES OR R10,000, WHICHEVER IS LESS.

15. Indemnification

You agree to indemnify, defend, and hold harmless the Company, its officers, shareholders, directors, employees, subsidiaries, affiliates, and representatives, from any and all losses, including, but not limited to, costs and attorneys' fees, arising out of or related to (i) Your use of the Services, (ii) Your violation of any term or condition of this Agreement; (iii) Your violation of the rights of third parties, including, but not limited to, intellectual property rights or other personal or proprietary rights; (iv) Your violation of the policies or procedures of any third party marketplace, including, but not limited to, Takealot.com; and (v) Your violation of any law, statute, ordinance, regulation, or treaty, whether local, state, provincial, national or international. Your obligation to defend Company will not provide You with the ability to control Company's defence, and Company reserves the right to control its defence, including its choice of counsel and whether to litigate or settle a claim subject to indemnification.

16. Arbitration

YOU AND THE COMPANY AGREE THAT ANY DISPUTE ARISING OUT OF OR RELATED TO THIS AGREEMENT OR YOUR USE OF THE SERVICES WILL BE GOVERNED BY THE LAWS OF ENGLAND AND WALES. EXCEPT FOR CLAIMS THAT MAY BE BROUGHT IN SMALL CLAIMS COURT, CLAIMS OF INTELLECTUAL PROPERTY INFRINGEMENT, OR CLAIMS FOR INJUNCTIVE RELIEF BY EITHER PARTY, YOU AND THE COMPANY AGREE THAT ANY DISPUTE OR CONTROVERSY ARISING OUT OF, IN RELATION TO, OR IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY AND ALL DISPUTES, CLAIMS (WHETHER IN TORT, CONTRACT, STATUTORY, OR OTHERWISE), OR DISAGREEMENTS CONCERNING THE EXISTENCE, BREACH, INTERPRETATION, APPLICATION, OR TERMINATION OF THIS AGREEMENT, WILL BE RESOLVED BY FINAL AND BINDING ARBITRATION OR, AT THE OPTION OF THE PARTY SEEKING RELIEF, BY TELEPHONE, ONLINE, OR VIA WRITTEN SUBMISSIONS ALONE, AND BE ADMINISTERED BY THE COURTS OF ENGLAND AND WALES UNDER THE THEN IN FORCE COMMERCIAL ARBITRATION RULES BY ONE ARBITRATOR APPOINTED IN ACCORDANCE WITH SUCH RULES. SUCH ARBITRATION WILL BE INDEPENDENT AND IMPARTIAL. IF THE PARTIES FAIL TO AGREE ON THE ARBITRATOR WITHIN TWENTY (20) CALENDAR DAYS AFTER THE INITIATION OF THE ARBITRATION HEREUNDER, THE COURTS OF ENGLAND AND WALES WILL APPOINT THE ARBITRATOR.
‍
THIS ARBITRATION WILL BE CONDUCTED IN THE ENGLISH LANGUAGE. THE DECISION OF THE ARBITRATOR WILL BE FINAL AND BINDING ON THE PARTIES AND JUDGEMENT ON ANY AWARD(S) RENDERED BY THE ARBITRATOR MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF. NOTHING IN THIS SECTION WILL PREVENT EITHER PARTY FROM SEEKING IMMEDIATE INJUNCTIVE RELIEF FROM ANY COURT OF COMPETENT JURISDICTION, AND ANY SUCH REQUEST SHALL NOT BE DEEMED INCOMPATIBLE WITH THE AGREEMENT TO ARBITRATE OR A WAIVER OF THE RIGHT TO ARBITRATE. THE PARTIES UNDERTAKE TO KEEP CONFIDENTIAL ALL AWARDS IN THEIR ARBITRATION, TOGETHER WITH ALL CONFIDENTIAL INFORMATION, ALL MATERIALS IN THE PROCEEDINGS CREATED FOR THE PURPOSE OF THE ARBITRATION, AND ALL OTHER DOCUMENTS PRODUCED BY THE OTHER PARTY IN THE PROCEEDINGS AND NOT OTHERWISE IN THE PUBLIC DOMAIN, SAVE AND TO THE EXTENT THAT DISCLOSURE MAY BE REQUIRED OF A PARTY BY LEGAL DUTY, TO PROTECT OR PURSUE A LEGAL RIGHT OR TO ENFORCE OR CHALLENGE AN AWARD IN LEGAL PROCEEDINGS BEFORE A COURT OR OTHER JUDICIAL AUTHORITY. THE ARBITRATOR SHALL AWARD ALL FEES AND EXPENSES, INCLUDING REASONABLE SOLICITORS' FEES, TO THE PREVAILING PARTY. ANY JUDGEMENT RENDERED BY THE ARBITRATOR MAY BE ENTERED IN ANY COURT OF COMPETENT JURISDICTION.
‍
ANY DISPUTE RESOLUTION PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE LICENSING OF THE SERVICES, WHETHER IN ARBITRATION OR OTHERWISE, SHALL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE ACTION, AND YOU AND THE COMPANY EXPRESSLY AGREE THAT CLASS ACTION AND REPRESENTATIVE ACTION PROCEDURES SHALL NOT BE ASSERTED IN NOR APPLY TO ANY ARBITRATION PURSUANT TO THESE TERMS.
‍
ANY CLAIMS MUST BE BROUGHT WITHIN ONE YEAR OF EACH APPLICABLE LICENCE OR SALE OR WILL OTHERWISE BE BARRED.

17. Force Majeure

The Company will not be responsible for any delay or failure in performance of the Services arising out of any cause beyond Company’s control, such as acts of God, war, riots, fire, terrorist attacks, power outages, severe weather, or other accidents.

18. Survivability

The representations, warranties, duties, and covenants made by You under this Agreement will survive the termination of this Agreement, Your User Account, or the Services, including, but not limited to, Your duty to indemnify and defend Company.

19. Interpretation

This Agreement will be deemed to have been drafted by both parties, and the terms and conditions of this Agreement will not be interpreted against its drafter.

20. Assignment

You are expressly prohibited from assigning Your rights and duties under this Agreement. Company reserves the right to assign its rights and duties under this Agreement, including in a sale of Company or the Services. 

21. Waiver and Integration

No term or condition of this Agreement or breach of this Agreement will be deemed to have been waived or consented to unless said waiver is writing and signed by the party to be charged. This Agreement is the entire agreement between the parties and supersedes all previous agreements or representations between the parties.