Terms and Conditions 2018-05-02T21:30:06+00:00

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Terms and Conditions

Estify – Terms and Conditions

Estify, Inc., a Delaware corporation (“Estify”), makes the Products described herein available to you (the “Customer”) on the terms and conditions set forth in these Terms of Use (these “Terms”). These Terms are a legally binding contract between Customer and Estify. Customer must agree to these Terms before Customer may use the Products. If Customer does not agree to all of the terms and conditions set forth in these Terms, Customer may not use the Products.

BY AGREEING TO THESE TERMS (INCLUDING BY A CLICK-THROUGH OR OTHER AGREEMENT), CUSTOMER EXPRESSLY ACKNOWLEDGES THAT CUSTOMER HAS READ THESE TERMS AND AGREES TO ALL OF THEIR RESPECTIVE TERMS AND CONDITIONS. Further, by agreeing to these Terms (including by a click-through or other agreement), Customer is waiving, to the extent permitted under applicable law, any rights or legal requirements that require an original (non-electronic) signature or the delivery or retention of non-electronic records in order for a contract to be legally binding. If Customer uses the Products, Customer will be deemed to have accepted these Terms. These Terms will apply, and Customer will be deemed to have accepted these Terms, to the extent they are incorporated by reference into an Order. If an individual is using the Products on behalf of such individual’s employer or another entity that is the Customer under these Terms, such individual represents and warrants that they have full legal authority to bind the Customer to these Terms. If an individual does not have such authority, then such individual may not use the Products on behalf of Customer and they must discontinue all use of the Products immediately.

The Customer and Estify, each of whom may hereinafter be referred to as a “Party”, and collectively as the “Parties” hereby agree as follows:

  1. Definitions. As used herein, the following terms shall have the meanings set forth below:
    1. Affiliate” means, with respect to any Person, any other Person directly or indirectly controlling or controlled by, or under direct or indirect common control with such Person.
    2. Estify Intellectual Property” means the Products, the Estify Site, the Estify Marks, all software source code and object code embodied in the Products and any and all component parts thereof, any and all documentation relating to the Products, and all copyrights, trade secrets, patents, trademarks, service marks, right of publicity, authors’ rights, contract and licensing rights, goodwill and all other intellectual property and proprietary rights therein or arising therefrom, as they may exist now and/or hereafter come into existence, and all renewals and extensions thereof.
    3. Estify Marks” means “Estify”, the Estify logo and any other trademarks, trade names, service marks, service names, logos and other distinctive brand features of Estify or its Affiliates and any additions, modifications or improvements to the foregoing that may be made available by Estify from time to time in its sole discretion.
    4. Estify Site” means Estify’s website located at Estify.com or any underlying website or webpage located at the Estify.com domain.
    5. Estimate” means a processed automobile repair estimate provided by Estify to Customer based upon an automobile repair estimate or other information provided by Customer to Estify.
    6. Internal Business Purposes” means the Customer’s use of the Products and use, reproduction and storage of Estimates, solely within the Customer’s organization, and not for the purposes of competing with Estify or the Products or exploiting the same commercially vis-à-vis any third party,
    7. Order” means a website order form, written purchase order or license agreement, or other written or electronic document setting forth the Products licensed by Customer and any other applicable terms and conditions agreed between Estify and Customer.
    8. Person” means any individual, company (whether general or limited), limited liability company, corporation, trust, estate, association, nominee or other entity.
    9. Products” means the Transfer tool and other products offered by Estify from time to time.
    10. Term” means the term of any subscription or Order, as set forth in a given Order.
  2. License Grants. As used herein, the following terms shall have the meanings set forth below:
    1. Estify Products License”. Subject to the terms and conditions of these Terms and any Order, including, but not limited to, Customer’s timely and complete payment to Estify of all applicable Fees, Estify grants to Customer a limited, non-exclusive, non-sub-licensable and non-transferable license during the applicable Term to access and use the Products for Internal Business Purposes.
    2. Reservations”. Customer acknowledges that its rights under these Terms or any Order are non-exclusive and do not restrict the business of Estify, and that Estify may either directly or through third parties sell and distribute its Products and grant licenses and other rights in respect of the Estify Intellectual Property and may develop and commercialize new products similar to the Products. The licenses granted hereby shall not constitute a sale of the Products or the underlying software and rights therein. All rights not expressly granted to Customer under these Terms are expressly reserved to Estify.
  3. Customer Obligations. Notwithstanding anything to the contrary contained herein, except as expressly permitted herein or otherwise set forth in a given Order, Customer shall not:
    1. remove or modify any trademark, copyright or other proprietary legend, marking, disclaimer or notice contained in any Estimates or other materials delivered or communicated to Customer by Estify via the Products or otherwise;
    2. use the Products to analyze, review or obtain information regarding the functionality, features, content, materials or individual elements of the Products, whether for commercial purposes or otherwise, except as expressly permitted herein;
    3. provide its credentials or access passwords to the Products to any Person (other than Customer’s officers, managers, directors, employees, contractors and agents);
    4. modify, merge, decompile, disassemble, scrape, translate, decode or reverse engineer any portion of the Products or technology used by Estify to deliver the Products, or use any data mining, gathering or extraction tool, or any robot, spider or other automatic device or manual process, to monitor or copy any portion of the Products or other technology of Estify or the data generated thereby;
    5. (i) use, reproduce, disclose, publish or compile any portion of the Products or technology of Estify or the data generated thereby for the purpose of selling or licensing any portion of the Products or any data or analytics generated thereby on a stand-alone basis or otherwise; (ii) make any portion of the Products publicly available; or (iii) create derivative works from the Products.
  4. Fees and Payment.
    1. General Payment Terms. Customer shall pay Estify the applicable fees set forth in each given Order (collectively, the “Fees”), on the payment and other terms and conditions set forth in such Order and these Terms. For Orders made on or through the Estify Site, Estify accepts the various forms of payment set forth on the Estify Site.
    2. Subscription Payment Terms. The following terms shall apply to all Products licensed on a subscription basis:b.i Payment; Renewal. By subscribing to any Products licensed on a subscription basis, Customer authorizes Estify to charge the initial one-time setup Fee, if any, and all applicable recurring subscription Fees set forth in a given Order to Customer’s designated billing payment method. Subscription plans may require that Customer pre-pay in advance for a given time period, or be invoiced for the applicable period, in each case, as will be set forth in a given Order. If Estify agrees to invoice Customer for a given subscription plan, Customer agrees to pay for such subscription within the time period set forth in the given Order. Certain subscriptions may provide the right to access a specified number of Estimates, as applicable, as described in a given Order. Customer’s access of Estimates in excess of the amounts provided in a given subscription plan may require additional Fees, as will be set forth in a given Order. Customer’s account may be deactivated and access to the Products may be restricted without notice to Customer if payment is past due, regardless of the amount. If Estify deactivates Customer’s account, Customer may lose all of Customer’s previously ordered Estimates, data, history and other account usage information. Customer agrees to pay any outstanding balance, including any and all amounts due for the remainder of a given subscription period, in full within thirty (30) days of cancellation or termination of Customer’s subscription.b.ii Right to Change Subscription Fees. All subscription Fees (and applicable taxes, if any) are subject to change on a prospective basis on prior notice from Estify sent to Customer’s designated email address or otherwise described on the Estify Site or in a given Order. If Customer does not accept the new Fees (and applicable taxes, if any), Customer should terminate Customer’s subscription prior to the end of a given Term.b.iii No Refunds. SUBSCRIPTION FEES AND ANY OTHER FEES AND CHARGES ARE FULLY EARNED UPON PAYMENT. SUCH PAYMENTS ARE NONREFUNDABLE AND THERE ARE NO REFUNDS OR CREDITS FOR ANY PARTIALLY USED SUBSCRIPTION PERIOD. CUSTOMER IS FULLY LIABLE FOR ALL CHARGES TO CUSTOMER’S BILLING PAYMENT METHOD. CUSTOMER ACKNOWLEDGES THAT ESTIFY IS NOT REQUIRED TO PROVIDE A REFUND FOR ANY REASON.
    3. Taxes. Customer is solely responsible for payment of any taxes (including sales or use taxes, transfer taxes, excise taxes, intangible taxes, property taxes, and similar taxes and duties) resulting from the transactions contemplated by these Terms, excluding, however, any taxes payable by Estify as a result of income earned by Estify hereunder.
  5. Intellectual Property.
    1. Estify Intellectual Property. As between Estify and Customer, Estify exclusively owns and at all times retains all right, title and interest in and to the Estify Intellectual Property. Customer will not claim for itself or for any third parties any rights, title, interest or licenses to the Estify Intellectual Property, except for the licenses expressly set forth herein. Customer further acknowledges that any derivative works, improvements, modifications, feedback, ideas or suggestions made by Customer or Estify with respect to the Estify Intellectual Property are, and shall at all times be, the property of Estify, with all right, title and interest therein. Customer hereby assigns to Estify all right, title and interest that Customer may have in and to any such derivative works, improvements, modifications, feedback, ideas, or suggestions. Customer further acknowledges that any goodwill or reputation for any of the Estify Intellectual Property will belong to Estify, with all right, title and interest therein. Customer shall not be entitled to claim recompense or compensation for such enhanced goodwill or reputation.
    2. Customer Data. “Customer Data” consists of information input into the Products by Customer and Customer behavior on the Products, as captured by the Products. Estify agrees that Customer will own all Customer Data. Customer is ultimately responsible for making and keeping current copies of all Customer Data and related information. Customer hereby grants to Estify a royalty-free, worldwide, perpetual, irrevocable and fully transferable right and license to use Customer Data for the purpose of making available, enhancing, operating, developing and otherwise exploiting Estify’s products and services, including the Products or any other websites and mobile applications, in all events, in a manner that others exercising reasonable diligence cannot determine the Customer Data to be information concerning or describing Customer’s specific business.
  6. Confidentiality.
    1. Confidentiality Obligations. From and after the date Customer accesses the Products, each Party receiving Confidential Information (the “Receiving Party”) of the other Party (the “Disclosing Party”) shall: (i) treat such Confidential Information as the confidential property of the Disclosing Party and be responsible for any breach of the terms hereof by itself or any authorized Person who receives Confidential Information of the Disclosing Party on its behalf; (ii) not use the Confidential Information except as permitted under these Terms; (iii) not disclose or otherwise make available the Confidential Information of the Disclosing Party to any third party (except as authorized herein and other than to such Party’s employees or independent contractors who (A) have a need to know such Confidential Information, (B) have been advised of the confidential nature of such information and the obligations that apply to them in connection therewith and (C) are subject to obligations of confidentiality with respect to such information as stringent as those set forth herein); and (iv) maintain the confidentiality of the Confidential Information of the Disclosing Party as it would its own most highly confidential information, but in no event shall the Receiving Party use less than reasonable care.
    2. Confidential Information. “Confidential Information” means, with respect to a given Party, such Party’s formulas, methods, know how, processes, designs, new products, developmental work, marketing requirements, business and marketing plans, customer names, prospective customer names, the terms and pricing under these Terms or any Order, any data relating to any research project, work in process, engineering, manufacturing, marketing, servicing, financing or personnel matter, data relating to such Party’s present or future products, sales, suppliers, clients, customers, employees, investors or business partners (including any confidential information of such suppliers, clients, customers, employees, investors or business partners) and all information clearly identified in writing at the time of disclosure as “confidential”, and in the case of Estify, the Products, shall be deemed the Confidential Information of Estify. Confidential Information does not include information that: (i) was or is in the public domain prior to the date of disclosure; (ii) was or is lawfully received by the Receiving Party from a third party who is not subject to an obligation of confidentiality with respect to such information; (iii) was or is already known by or in the possession of the Receiving Party; or (iv) is required to be disclosed under applicable law or by a governmental or court order, decree, regulation or rule, provided that the Receiving Party gives written notice to the Disclosing Party to the extent legally permissible prior to disclosure.
  7. Representations and Warranties; Indemnities; Disclaimers.
    1. Representations and Warranties. Customer represents and warrants to Estify that (i) Customer’s responsibilities, promises and negative covenants herein will be fully complied with and rendered in accordance with all requirements identified in these Terms; and (ii) Customer has the authority to enter into and perform its obligations under these Terms and to grant the rights set forth herein. Estify represents and warrants to Customer that, to the best of Estify’s knowledge, the Estify Intellectual Property does not infringe the copyrights, trademarks, trade secrets or patents of any third party.
    2. Indemnity.b.i Customer shall indemnify, defend and hold harmless Estify and its parent entities and its Affiliates and each of their respective officers, directors, managers, members, stockholders, employees, contractors, agents, successors and assigns (the “Estify Indemnified Parties”) against any and all claims (alleged or actual), damages, liabilities, losses, charges, obligations, demands, suits at law or in equity, proceedings, violations, penalties, costs and expenses (including, without limitation, investigation costs, expert costs, and attorneys’ fees) raised by a third party and incurred by the foregoing in connection with, arising out of, or in any way related to (i) Customer’s breach of any representation or warranty, or any of its obligations, under these Terms or any Order; (ii) any gross negligence or willful misconduct by Customer; and/or (iii) any display or use by Customer of the Products.b.ii. Estify shall indemnify, defend and hold harmless Customer and its parent entities and its Affiliates and each of their respective officers, directors, managers, members, stockholders, employees, contractors, agents, successors and assigns against any and all claims (alleged or actual), damages, liabilities, losses, charges, obligations, demands, suits at law or in equity, proceedings, violations, penalties, costs and expenses (including, without limitation, investigation costs, expert costs, and attorneys’ fees) raised by a third party and incurred by the foregoing in connection with, arising out of, or in any way related to (i) Estify’s breach of any representation or warranty, or any of its obligations, under these Terms or any Order; or (ii) any gross negligence or willful misconduct by Estify.b.iii. The party claiming indemnification pursuant to this Section 7.b. (the “Indemnified Party”) shall promptly notify the other party (the “Indemnifying Party”) of any such claim of which it becomes aware and shall: (i) at the Indemnifying Party’s expense, provide reasonable cooperation to the Indemnifying Party in connection with the defense or settlement of any such claim, and (ii) at the Indemnified Party’s expense, be entitled to participate in the defense of any such claimb.iv. If Estify is the Indemnifying Party and the distribution of the Products is permanently enjoined, or if Estify determines at its sole discretion that it may be enjoined because the Products or a part thereof constitutes or appears to constitute a direct infringement of any third party intellectual property right, Estify may, at its sole discretion and at its own expense, (i) procure for Customer the right to continue using the Products consistent with these Terms, (ii) modify the Products so that they become non-infringing, or (iii) immediately terminate these Terms with no further liability to Customer.b.v. The Indemnified Party agrees that the Indemnifying Party shall have sole and exclusive control over the defense and settlement of any such third party claim. However, the Indemnifying Party shall not acquiesce to any judgment or enter into any settlement that adversely affects the Indemnified Party’s rights or interests without the prior written consent of the Indemnified Party.
    3. DISCLAIMER OF WARRANTIES. EXCEPT AS OTHERWISE EXPRESS SET FORTH HEREIN, THE PRODUCTS ARE PROVIDED “AS-IS” AND WITHOUT ANY OTHER EXPRESSED OR IMPLIED WARRANTY OR CONDITION OF ANY KIND. ESTIFY MAKES NO WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE PRODUCTS OR THE OPERATION OR USE THEREOF, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES REGARDING ACCURACY, QUALITY, CORRECTNESS, COMPLETENESS OR COMPREHENSIVENESS. ESTIFY HEREBY EXCLUDES ALL IMPLIED WARRANTIES AND CONDITIONS TO THE EXTENT PERMITTED BY LAW, INCLUDING, ANY IMPLIED WARRANTY ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OR TRADE. ESTIFY HEREBY EXCLUDES ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, AND OF NON-INFRINGEMENT, CONCERNING THE PRODUCTS AND OPERATION OR USE THEREOF. ESTIFY DOES NOT WARRANT THAT THE PRODUCTS WILL MEET ALL OF CUSTOMER’S BUSINESS REQUIREMENTS, OR THAT THE OPERATION OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE.
  8. Limitation of Liability.
    1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR THE WILLFUL MISCONDUCT, GROSS NEGLIGENCE, BREACH OF CONFIDENTIALITY OR MISAPPROPRIATION OR INFRINGEMENT OF THE INTELLECTUAL PROPERTY OF THE OTHER PARTY, IN NO EVENT SHALL A PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY (INCLUDING ANY END USER) UNDER ANY THEORY OF TORT, CONTRACT, OR STRICT LIABILITY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING LOSS OF PROFITS, DATA OR GOODWILL, REGARDLESS OF WHETHER SUCH PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
    2. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR THE WILLFUL MISCONDUCT, GROSS NEGLIGENCE, BREACH OF CONFIDENTIALITY OR MISAPPROPRIATION OR INFRINGEMENT OF THE INTELLECTUAL PROPERTY OF THE OTHER PARTY, OR THE OBLIGATIONS OF THE PARTIES TO THIS AGREEMENT PURSUANT TO SECTION 7.b., IN NO EVENT SHALL A PARTY’S TOTAL CUMULATIVE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT (REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE) EXCEED TWENTY-FIVE THOUSAND DOLLARS ($25,000), PROVIDED, HOWEVER, THAT IN NO EVENT SHALL THE LIMITATION SET FORTH HEREIN LIMIT A PARTY’S RIGHT TO OBTAIN EQUITABLE RELIEF AGAINST THE OTHER PARTY OR LIMIT A PARTY’S RIGHTS TO ANY AMOUNTS PAYABLE UNDER THIS AGREEMENT
    3. EACH PARTY ACKNOWLEDGES THAT THIS LIMITATION OF LIABILITY REFLECTS AN INFORMED, VOLUNTARY ALLOCATION BETWEEN THE PARTIES OF THE RISKS (KNOWN AND UNKNOWN) THAT MAY EXIST IN CONNECTION WITH THIS AGREEMENT
  9. Compliance with Applicable Laws. Customer shall comply with all applicable federal, state, county and local laws, rules, ordinances, regulations, and codes. Customer will procure all required permits, approvals, inspections and certificates in order to operate its business in compliance with all applicable laws. Customer shall be solely responsible for all uses of the Products, including any violation of law arising out of its unauthorized use or misuse of the foregoing.
  10. Term. The term of any subscription or of a given Order will be as set forth in the Order.
  11. Suspension or Termination.
    1. Termination by Either Party. Either Party may terminate a subscription or a given Order as set forth in the Order and/or in this Section 11. ESTIFY IS NOT RESPONSIBLE FOR CUSTOMER’S FAILURE TO PROPERLY CANCEL A SUBSCRIPTION AND ESTIFY DOES NOT PROVIDE REFUNDS OR CREDITS FOR ANY PARTIAL SUBSCRIPTION PERIOD.
    2. Suspension or Termination by Estify. Unless otherwise expressly set forth in a given Order, Estify may suspend or terminate Customer’s access to the Products, in its sole discretion and without notice or liability to Customer, at any time if Estify believes in good faith that Customer has violated or acted inconsistently with any provision or the spirit of these Terms or any Order or any applicable law, rule or regulation or that Customer has engaged in conduct that Estify reasonably determines to be inappropriate or unacceptable. Estify may in its sole discretion, and at any time, discontinue providing the Products, or any part thereof, on notice to Customer.
    3. Effect of Termination. Upon termination or expiration, all licenses granted hereunder will immediately terminate and revert to Estify, and Customer will immediately (i) except as expressly permitted by the licenses set forth in these Terms, cease all use of the Products and (ii) pay all accrued Fees in respect of the period through the date of termination or that may otherwise be required to be paid as set forth in a given Order
  12. Links. The Estify Site may contain links to third-party websites. Estify provides these links as a convenience and use of such websites is at Customer’s own risk. The linked websites are not under the control of Estify and Estify is not responsible for their content. Such links do not imply Estify’s endorsement of information or material on any other website, and Estify disclaims all liability with regard to Customer’s access to and use of such linked websites.
  13. Privacy. All information about Customer, including any Customer Data and any information stored or transmitted in any way through use of the Products is subject to Estify’s Privacy Policy, which can be found at https://estify.com/privacy-policy/.1 Estify’s Privacy Policy is incorporated into these Terms by this reference.
  14. Miscellaneous.
    1. Governing Law; Venue. These Terms and each Order shall be governed by and interpreted in accordance with the laws of the State of California, without regard to the principles of conflicts of law. Prior to the filing or initiation of any action or proceeding, each Party agrees to participate in good faith binding arbitration, as set forth in Section 14(b), in Los Angeles, California. Subject to the provisions of (and claims proceeding in any small claims court), the Parties agree to submit to the sole and exclusive jurisdiction and venue of the state and federal courts situated in Los Angeles, California. Each Party consents to the exercise of personal jurisdiction by such courts and waives any right to plead, claim or allege that Los Angeles, California is an inconvenient forum.
    2. Arbitration; Waiver of Class Action Claims.b.i. Arbitration Procedures. The Parties agree that, except as provided in Section 14(b)(iv) below, all disputes, controversies and claims related to these Terms or any given Order (each a “Claim”), shall be finally and exclusively resolved by binding arbitration, which may be initiated by either Party by sending a written notice requesting arbitration to the other Party. Any election to arbitrate by one Party shall be final and binding on the other. The arbitration will be conducted under the Streamlined Arbitration Rules and Procedures of JAMS, Inc. that are in effect at the time the arbitration is initiated (the “JAMS Rules”) and under the terms set forth in these Terms. In the event of a conflict between the terms set forth in this Section 14 and the JAMS Rules, the terms in this Section 14 will control and prevail. Except as otherwise set forth in Section 14(b)(iv), Customer may seek any remedies available to it under federal, state or local laws in an arbitration action. As part of the arbitration, both Parties will have the opportunity for discovery of non-privileged information that is relevant to the Claim. The arbitrator will provide a written statement of the arbitrator’s decision regarding the Claim, the award given and the arbitrator’s findings and conclusions on which the arbitrator’s decision is based. The determination of whether a Claim is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Except as otherwise provided in this Agreement, (i) the Parties may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator; and (ii) the arbitrator’s decision shall be final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law.b.ii. Location. The arbitration will take place in Los Angeles, California unless the parties agree to video, phone and/or internet connection appearances.b.iii. Limitations. The Parties agree that any arbitration shall be limited to the Claim between Estify and Customer individually. ESTIFY AND CUSTOMER AGREE THAT (A) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; (B) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL; AND (C) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER ARBITRATION.b.iv. Exceptions to Arbitration. The Parties agree that the following Claims are not subject to the above provisions concerning negotiations and binding arbitration: (i) any Claim seeking to enforce or protect, or concerning the validity of, any of Estify’s or Customer’s intellectual property rights; and (ii) any claim for equitable relief. In addition to the foregoing, either Party may assert an individual action in small claims court for Claims that are within the scope of such court’s jurisdiction in lieu of arbitration. In furtherance of the foregoing, each Party acknowledges that any breach of these Terms or any Order by the other Party, including, without limitation, any breach by Customer of its confidentiality obligations or negative covenants hereunder, may cause the non-breaching Party irreparable harm for which there may be no adequate remedy at law and, in such case, each Party agrees that the non-breaching Party shall be entitled, notwithstanding the provisions of this Section 14(b), to obtain equitable relief by injunction or otherwise, in any court of competent jurisdiction, without the obligation of proving damages or posting a bond or surety.b.v. Arbitration Fees. If Customer initiates arbitration for a Claim, Customer will pay the JAMS arbitration filing fee. If Estify initiates arbitration for a Claim, Estify will pay the JAMS arbitration filing fee. All other fees and costs of the arbitration will be charged pursuant to the JAMS Rules.

      b.viSeverability for Purposes of Section 14(b). The Parties agree that if any portion of this Section 14(b) is found illegal or unenforceable (except any portion of Section 14(b)(iv), that portion shall be severed and the remainder of the Section shall be given full force and effect. If Section 14(b)(iv) is found to be illegal or unenforceable then neither Party will elect to arbitrate any Claim falling within that portion of Section 14(b)(iv) found to be illegal or unenforceable and such Claim shall be exclusively decided by a court of competent jurisdiction within the Los Angeles, California, and the Parties agree to submit to the personal jurisdiction of that court.

    3. Entire Agreement; Amendment. These Terms (including the Privacy Policy) and any other terms and conditions set forth in a given Order and/or governing the use of the Products constitute the entire agreement and understanding between the Parties and integrate all prior discussions between them related to its subject matter and supersede all prior or contemporaneous oral and written statements of any kind whatsoever made by the Parties with respect to such subject matter. Any reference herein to these Terms will include a reference to each Order that incorporates these Terms. Estify may update these Terms from time to time in its sole discretion. Estify will use reasonable efforts to notify Customer of any update to these Terms and the updated version of these Terms will be made available on the Estify Site. Customer may be prompted to agree to or decline an update of these Terms in connection with their next login (and in such event, Customer will be required to agree to the update in order to continue using the Products). In the event of any conflict between these Terms and a given Order, the Order will govern.
    4. Assignment. Customer may not assign its rights, or delegate its obligations, under these Terms to any other Person without the express written approval of Estify and any attempt at assignment in violation of this Section 14(d) shall be null and void. Estify may assign this Agreement without limitation, including to an acquirer of all or a substantial portion of its business or assets.
    5. Waiver. The waiver, express or implied, by Estify of any breach of these Terms by Customer will not waive any subsequent breach by Customer of the same or a different kind.
    6. Independent Contractors. The Parties acknowledge and agree that they are dealing with each other hereunder as independent contractors. Nothing contained in these Terms shall be interpreted as constituting either Party the joint venturer, employee or partner of the other Party or as conferring upon either Party the power of authority to bind the other Party in any transaction with third parties.
    7. Severability. In the event any provision of these Terms is held by a court or other tribunal of competent jurisdiction to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable, and the other provisions of these Terms will remain in full force and effect.
    8. Attorneys’ Fees. Should either Party hereto initiate a legal or administrative action or proceeding (an “Action”) to enforce any of the terms or conditions of these Terms, the prevailing Party shall be entitled to recover from the losing Party all reasonable costs of the Action, including without limitation attorneys’ fees and costs.
    9. Publicity. Estify may publicly disclose that Customer is a client of Estify and display Customer’s name and logo in connection with such disclosure.
    10. SurvivalSections 134(b)(iii)5 through 9 and 14 shall survive any expiration or termination of these Terms indefinitely.

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