1.0 DEFINED TERMS
“Authorized Users”: your employees, agents, or end users authorized to use the Castle Service as part of Other Applications, under an Evaluation Trial or as specified in the Order Form.
“Confidential Information”: any of the following disclosed, made available by or otherwise received from a party to these Terms (you or us), or by such party’s affiliates: (a) any tangible or written information or materials, but only if conspicuously marked as “confidential” (or with words of similar meaning); and (b) any orally disclosed information, but only if such information is designated as confidential (or with words of similar meaning) at the time of disclosure and is summarized in writing and delivered within thirty days of disclosure (such oral information will be deemed Confidential Information pending receipt of such written summary if received within thirty days). User name, password, and other log-in information provided to you for access to the Castle Service (“Access Information”), as well as the Castle Service, will be deemed to be our Confidential Information and to be, contain or embody our proprietary trade secrets. Your Data will constitute your Confidential Information.
“Evaluation Trial”: provision of the Castle Service to you on a temporary basis for your evaluation, at no charge to you.
“Licensed Materials”: Castle’s APIs, documentation, code and software provided to you to facilitate your setup of the Castle Service.
“Order Form”: the ordering document or website page, as may be amended, that is signed (digitally or otherwise) by you and us, and which sets forth the subscriptions you have purchased for access to the Castle Service (or upgrades to that service), a description of Services to be provided if any, and any other supplemental terms.
“Other Applications”: any websites, platforms, environments, software, products, services, functionality, text, video, audio, data, and content not developed by us, including any of the foregoing that is owned or licensed by you or is processed, made available or posted for use and display via or in conjunction with the Castle Service.
“Professional Services”: services requested by you and agreed to be provided by us related to your use of the Castle Service, either in support of an Evaluation Trial or as specified in the Order Form.
“Services”: the Professional Services and the Support Services.
“Support Services”: the support and maintenance services described in section 9.2 below.
“Terms”: this Castle Services Agreement and the Order Form, if any, referencing this agreement.
“Castle Service”: the Licensed Materials, services, products, features, functionality and content made available to you as part of an Evaluation Trial or that are the subject of an Order Form (including all tiered offerings such as “basic”, “starter”, “pro”, and “enterprise”, or other successor designations), via our customer login page or other site(s) designated by us, as well as any upgrades, enhancements, customizations, error corrections, deprecations, or other changes that we may from time to time in our sole discretion incorporate into such Licensed Materials, services, products, features, functionality and content.
“We”, “us”, “our” or “Castle”: Castle Intelligence, Inc., dba Castle, organized under the laws of United States.
“You” or “your”: the individual using the Castle Service, or clicking “accept” or “agree” where indicated, and thereby becoming bound by the Terms, and the company or other legal entity represented by such individual and/or that executed an Order Form, and all affiliates thereto.
“Your Data”: all electronic data or information submitted by you to the Castle Service.
2.0 EVALUATION TRIAL
If you have registered for a free evaluation on our registration website, the Evaluation Trial will be made available to you for the time period specified in the registration website. Any additional terms and conditions set forth on the registration website are legally binding and are incorporated into these Terms. Any data, personalizations, integrations, adaptations, customizations or other materials generated during the Evaluation Trial will be permanently lost at the end of the Evaluation Trial unless you purchase a subscription (at the same level used in the Evaluation Trial) to the Castle Service via an Order Form. Except as we may otherwise agree in writing, we are under no obligation to provide Services during or in support of the Evaluation Trial. NOTWITHSTANDING ANY OTHER PROVISION OF THESE TERMS, THE EVALUATION TRIAL IS PROVIDED “AS IS” WITHOUT ANY WARRANTY, EXPRESS OR IMPLIED, AND THE TERMS OF THE SLA ARE NOT APPLICABLE.
3.0 SUBSCRIPTIONS TO THE CASTLE SERVICE
3.1 Availability. We will make available a subscription to the Castle Service to you pursuant to these Terms and in accordance with the applicable Order Form(s) during the subscribed term. You acknowledge that your use of the Castle Service is not based on reliance on the availability of any future functionality or features, or on any oral or written public or private comments or representations made by us.
3.2 Authorized Users. You will not make the Castle Service available or accessible to persons other than Authorized Users.
3.3 Downtime. We will use commercially reasonable efforts to make the Castle Service available during the subscription term 24 hours a day, 7 days a week, except for “Excused Downtime”, defined as (a) planned downtime (with reasonable advance notice and, to extent practicable, during the weekend hours); (b) emergency downtime; and © any unavailability caused by circumstances beyond our reasonable control. Regardless of the foregoing, any downtime for paid subscribers is subject to the remedies of the uptime and availability commitments set forth in the SLA if applicable to your subscription.
4.0 USE OF THE CASTLE SERVICE
4.1 Necessary Systems. Access to and ability to effectively use the Castle Service or Services is conditioned on your and Authorized Users’ procurement of all necessary system, hardware, software, operating environment, connectivity, and network access. You acknowledge that use of the Castle Service requires connection to, and data transfers over, the network and therefore may impact your data usage charges imposed by your ISP, wireless operator or other service provider.
4.2 Retention of Intellectual Property Rights. You acknowledge and agree that we and/or our suppliers retain any and all right, title and interest in and to the Castle Service (and all copies thereof), and all associated intellectual property rights. Nothing herein will be construed as a transfer or assignment by us of any intellectual property rights. You will not sublicense, resell access, or make derivative works or improvements of, the Castle Service. You may use the Castle Service only in conjunction with Other Applications, and not on a stand-alone basis.
4.3 Feedback. You agree that we may freely use and exploit in perpetuity any feedback, requirements, recommendations, ideas, bug fixes, comments, suggestions, or improvements, that you, or any employee or agent thereof, or Authorized User may at any time disclose or submit to us relating to the Castle Service for our business purposes, including for product licensing, support and development, without any obligation or payment to you.
4.4 Information. You hereby consent to our collection and use (for product development purposes) of anonymized data concerning your use of the Castle Service. Further, we may monitor and collect information (including but not limited to technical and diagnostic information) about your usage of the Castle Service in order to improve it and to verify compliance with these Terms.
4.5 Unauthorized Use. You will not use the Castle Service or participate in any activities via the Castle Service in a manner that is likely to be prohibited by law or these Terms or violative of third party rights in any applicable jurisdiction, including intellectual property rights. You will be responsible for all Authorized Users’ compliance with these Terms and for the accuracy, quality and legality of the Other Applications. You will not use the Castle Service to store or transmit infringing, libelous, pornographic, offensive or otherwise unlawful or tortious material or data or in violation of privacy rights, or to transmit malicious code, viruses, time bombs, Trojan horses, or similar mechanisms, scripts, agents, bots or programs. You may not use or access the Castle Service: (a) if you are a direct competitor of us or operating on behalf of such a direct competitor; or (b) for purposes of monitoring availability, performance or functionality, or for any other benchmarking or competitive purposes.
4.6 Notifications. For purposes of service messages and notices about the Castle Service to you, we may place a banner notice across site pages or via the Licensed Materials to alert you to certain changes such as modifications to these Terms. Alternatively, notice may consist of an email from us to an email address associated with your account, even if we have other contact information. You also agree that we may communicate with you through your account or through other contact information that you have provided to us, including email, mobile number, telephone, or delivery services. We may propose changes to these Terms from time to time, and will notify you as provided by this section. If you object to the changes, you must notify us within thirty days after receiving notice of the changes. If you notify us as specified in this section, then the proposed changes to the Terms will not come into effect until such time as the subscription to the Castle Service is renewed after the expiration of the current subscription.
5.0 LICENSE MATERIALS
5.1 License to Use. Subject to your compliance with the obligations of these Terms, we hereby grant to you a personal or individualized, non-sublicensable, non-transferable, and non-exclusive license to install and use the Licensed Materials for purposes of setting up and using the Castle Service as integrated with the Other Applications. Any distribution of the Licensed Materials is forbidden. In the event the Licensed Materials in whole or in part is already in your possession or custody, such item(s) will be subject to the terms of this section 5.0, notwithstanding any pre-existing agreement or understanding between you and us with respect to such items. Certain components or libraries included in or bundled with the Licensed Materials may be covered by open source licenses (as may be listed in a readme, about or similar file within the Licensed Materials). To the extent required by such open source licenses, the terms of such licenses will apply in lieu of the terms of this section 5.0, solely with respect to those libraries or components that are licensed under such open source licenses.
5.2 Unauthorized Use. You and any Authorized User will not (a) copy the Licensed Materials except as required to set up and use the Castle Service under an Evaluation Trial or paid subscription; (b) distribute to or share use of the Licensed Materials with any third party; or © or modify or make derivative works or improvements of, sublicense, rent, lease, or host the Licensed Materials. All rights not expressly granted in this section are reserved to us. You will have no right or license to the Licensed Materials other than the rights expressly granted in this section, and no other right or license will be implied by conduct or otherwise.
5.3 Ownership. We and our licensors retain all right, title and interest in the Licensed Materials, all copies thereof, and all associated intellectual property rights.
5.4 Reverse Engineering. You and any Authorized User will not reverse engineer, modify, decompile, disassemble or otherwise attempt to derive the source code or other information from the Licensed Materials provided to you in binary, executable code form, except and only to the extent that: (a) such activity is expressly permitted by directly applicable law notwithstanding this limitation; and (b) it is essential to engage in such activity in order to obtain information needed to achieve interoperability of independently created software with the Licensed Materials; and © we have not made such information available to you under reasonable terms and conditions. Any information supplied to or obtained by you under this section as a result of reverse engineering may only be used by you for the purpose described in this section, and will not be disclosed to any third party or used to create any software that is substantially similar to the Licensed Materials.
6.1 Duty. The party (you or us) receiving Confidential Information (“receiving party”) from the party disclosing same (“disclosing party”) will protect the confidentiality of the disclosing party’s Confidential Information with the same degree of care, but no less than reasonable care, as used to protect receiving party’s own confidential information. Each party undertakes to limit the distribution and communication of such Confidential Information to employees or agents of the receiving party or the receiving party’s affiliates with a need to know same in order to facilitate carrying out the purposes contemplated by these Terms.
6.2 Exclusions. Notwithstanding the foregoing, the obligations of section 6.1 will not apply to any Confidential Information (other than Access Information) to the extent that same: (a) was publicly known at the time it was disclosed or becomes publicly known through no fault or action of the receiving party; (b) was known to the receiving party, without restriction, at the time of disclosure; © was independently developed by the receiving party without any access to or use of the Confidential Information; or (d) becomes known to the receiving party, without restriction, from a source other than the disclosing party. Further, if receiving party is required, pursuant to a legal proceeding or other legal or regulatory requirement, to disclose any Confidential Information, reasonable prior notice will be given to disclosing party in order to contest or limit such disclosure.
6.3 Your Data. We will maintain appropriate reasonable and industry-standard administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of Your Data. We will not (a) disclose Your Data except pursuant to normal and intended operation of the Castle Service, or as compelled by law per section 6.2, or as expressly permitted by you; (b) modify Your Data; or © access Your Data except to provide the Castle Service and features thereof or prevent or address service or technical problems, or at your request in connection with Services.
7.0 ACCESS INFORMATION
You are wholly responsible for maintaining the confidentiality of Access Information and wholly liable for all activities occurring under such Access Information. You will not transfer to any party Access Information, or use access information of another, without our prior written consent. You will immediately notify us of any unauthorized use of Access Information or any other breach of security of which you become aware. We will not be liable for any loss or damage arising from lost or forgotten Access Information (including associated loss of data and content), failure to comply with this section or from unauthorized use of the Access Information.
8.0 OTHER APPLICATIONS
8.1 Responsibility. You are solely responsible for the Other Applications. Under no circumstances will we be liable in any way for Other Applications, including, but not limited to, liability for any errors or omissions in any Other Applications, or for any loss or damage of any kind incurred as a result of the use of the Other Applications. You hereby waive and release any claims you may have against us arising or resulting from use, misuse, alteration or loss of Other Applications. If the providers of Other Applications cease to make the Other Applications available for interoperation with the corresponding features of the Castle Service on reasonable terms, or otherwise render such interoperation technically or commercially unreasonable, we may cease providing such features, or may become unable to provide the Castle Service in conjunction with such Other Applications, without entitling you to any refund, credit or other compensation.
8.2 Use of Data. You acknowledge that providers of the Other Applications may access Your Data as required for the interoperation of such Other Applications with the Castle Service. We will not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by Other Applications or enabling Other Applications for use with the Castle Service.
9.1 Professional Services. We may but are under no obligation to provide Professional Services to you in furtherance of your subscription or Evaluation Trial. If such Professional Services are to be provided in exchange for payment, or if we so elect at our option, such engagement will be the subject of a written statement of work subject to these Terms.
9.2 Support Services. If so indicated on the Order Form, we will provide Support Services as follows:
we will provide email help desk, query and incident support, in support of your use of the Castle Service. Such support will be available from the hours of 0900 to 1700 PDT during normal business days (excluding Castle holidays). Error reports and incidents must be logged initially via email sent to email@example.com. You will use commercially reasonable efforts to minimize repetitive support inquiries.
all support incidents and error reports will be in a format specified by us, and will include all information requested by us in order to reproduce and diagnose the problem.
prior to initiating any support request of any kind, you must first have attempted to determine the cause of and resolve the issue directly with the Authorized User in question. Only if the issue cannot be resolved after reasonably diligent efforts by capable and skilled IT personnel retained by you may you then initiate a support request with us as specified in this section. You will use reasonable efforts to reproduce the problem and gather all relevant and helpful information regarding same for submission to us.
we will use commercially reasonable efforts to correct as soon as possible any delay, defect, failure or unavailability of the Castle Service.
we will implement all upgrades, enhancements, ports, bug fixes, and new releases to the Castle Service when and if, in our sole discretion, developed by us. We will use commercially reasonable efforts to perform scheduled maintenance during off hours so as to minimize disruptions to the use of the Castle Service and to provide reasonable advance notice of same. In the event of any unscheduled or emergency maintenance, we will make every reasonable effort to minimize the impact on you, but cannot guarantee no negative impact on use in the event of such unscheduled or emergency maintenance.
we may provide other services as set forth in the Order Form.
9.3 Rights. We retain all right, title and interest in and to the “Services Deliverables”, defined as deliverables, materials, data, information or content provided to you or developed as part of the Services, and all intellectual property rights associated with the Services Deliverables. We grant to you, for as long your subscription to the Castle Service is in effect, a non-exclusive and non-transferable license to use such Services Deliverables solely for your internal operations in connection with your authorized use of the Castle Service.
10.1 Subscriptions; Pro-Ration. You will pay to us the fees listed, on the dates specified, in the Order Form; such fees are payable within thirty days of our invoice or will be automatically charged to your credit card on the dates corresponding to the subscription you ordered. Fees are based on the subscription ordered and not on actual usage. Unless otherwise specified in the Order From, subscription fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereafter; fees for subscriptions, upgrades or features added in the middle of a monthly period will be charged for that monthly period on a pro rata basis, unless otherwise agreed in writing by us.
10.2 Orders. All orders as set forth in each Order From are non-cancelable and all payments are non-refundable (except as may otherwise be specified in these Terms or the Order Form). Payments will be made via the method designated by us. In the event you are delinquent in payment for a period of more than ten business days, we may at our option accelerate your unpaid fee obligations so that all payments are immediately due and payable under the subscription, and/or suspend access to the Castle Service and the Services until such accelerated payments (if any) and all overdue payments are made in full. Payments to us will be made without deduction, counterclaim or set-off of any kind. Any payments that are not timely paid as provided hereunder will, at our option, bear interest at the rate of the lower of (a) ten percent per annum; or (b) the highest rate permitted by applicable law.
10.3 Taxes. You will bear and be responsible for the payment of all taxes, including all sales, value-added, use, rental receipt, personal property or other taxes and their equivalents which may be levied or assessed in connection with these Terms or provision of the Castle Service and Services (excluding only taxes based on our net income). If we are required to pay or collect any such taxes or other charges for which you are responsible under this section, the appropriate amount will be invoiced to and paid by you. To the extent you are required by local law to withhold or deduct taxes based upon our income from any payment(s) owed hereunder, such payment(s) will be increased in such amounts as would have been received by us as if no such withholding or deduction were required.
11.0 CASTLE SERVICE INTEGRITY
11.1 Prohibited Acts. You are prohibited from breaching or attempting to breach any security features of the Castle Service, including, without limitation:
(a) accessing content or materials not intended for you, or logging onto a server or account that you are not authorized to access;
(b) attempting to probe, scan, or test the vulnerability of the Castle Service, or any associated system or network, or to breach security or authentication measures without proper authorization;
© interfering or attempting to interfere with use of the Castle Service by any user, host, or network, including, without limitation, by means of submitting a virus, overloading, “flooding,” “spamming,” “mail bombing,” or “crashing”;
(d) publishing or linking to malicious content intended to damage or disrupt another user’s browser or computer or to compromise a user’s privacy or anonymity;
(e) forging any TCP/IP packet header or any part of the header information;
(f) accessing or tampering with non-public areas of the Castle Service, our computer systems, or the technical delivery systems of us or our providers;
(g) accessing or attempting to access the Castle Service by any means (automated or otherwise) other than through the currently available, published interfaces that are provided by us, unless you have been specifically allowed to do so in a separate agreement with us; or
(h) attempting to modify, reverse-engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code or other information used by us in providing Castle Service.
11.2 Illicit Access You may not attempt to gain unauthorized access to other accounts, computer systems or networks connected to any of our servers, through hacking, password mining or any other means. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Castle Service, which is for your personal or individualized use only. Without limiting the generality of the foregoing, you will not publish, distribute or transmit to the general public via any medium, whether via print, online, or otherwise, the Castle Service, except through or as otherwise authorized by us, and you will not engage in “framing,” “mirroring,” or otherwise simulating the appearance or function of the Castle Service. You will not remove any copyright, trademark or other proprietary rights notices associated with or visible via use of the Castle Service.
For paid subscribers who are current in their payment obligations under these Terms, we warrant that, subject to these Terms: (a) the functionality of the Castle Service will not be materially degraded during a subscription term; (b) the uptime and availability commitments set forth in the SLA will be upheld; and © all Services will be performed in a professional and workmanlike manner. For any breach of this warranty, your exclusive remedies and our sole obligations are as set forth in the SLA, if applicable to you based on your current subscription level, and as provided in section 14.2.
13.0 DISCLAIMER OF WARRANTIES & LIMITATION OF LIABILITY
13.1 Disclaimer. TO THE MAXIMUM EXTENT POSSIBLE UNDER APPLICABLE LAW, except to the extent listed in section 12.0, WE DISCLAIM ALL WARRANTIES OF ANY KIND WITH RESPECT TO THE Castle SERVICE AND THE SERVICES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. Specifically, we make no warranty that (a) the Castle Service will meet your requirements, goals or needs, (b) Castle Service access will be uninterrupted, timely, secure or error-free, © any errors or deficiencies in the Castle Service will be corrected, or (d) use of the Castle Service will prevent, or eliminate the risk of, unauthorized use or access, loss of data, security breaches, or similar occurrences, or (e) the Castle Service and its use complies with the security or other requirements or standards of any third party, including the requirements of any governmental, regulatory, standards-setting, or financial agency, body or institution such as HIPAA. You acknowledge and agree that (f) we are not acting in your behalf as a “Business Associate” or contractor or subcontractor (as such terms are used in the US Health Insurance Portability and Accountability Act of 1996, as amended and supplemented (“HIPAA”)); (g) the Castle Service is not HIPAA-compliant; and (h) you will not use the Castle Service in any manner that would require the Castle Service to be HIPAA-compliant.
13.2 Exclusion. Excluding only damages arising out of our gross negligence, liability for our fraud, death or personal injury caused by our negligence, or any other loss for which we cannot lawfully exclude liability, we will not be liable for any indirect, incidental, special, consequential or exemplary damages, including but not limited to damages for loss of revenue, profits, savings, opportunities, goodwill, use, data or other intangible losses or costs associated with substitute products or services (even if we have been advised of the possibility of such damages), arising or resulting from these Terms or use or inability to use the Castle Service or any Service, or otherwise arising from or related to these Terms, the Castle Service and/or the Services. Excluding only our liability for our fraud, death or personal injury caused by our negligence, or any other loss for which we cannot lawfully limit liability, our total maximum aggregate liability in any circumstance arising from or relating to these Terms, the Castle Service or Services is limited to the greater of US$10 or all amounts paid by you to us during the twelve-month period preceding the occurrence of the claim or incident. You and we have voluntarily agreed to define our respective rights, liabilities and obligations respecting these Terms, the Castle Service and the Services exclusively in contract pursuant to these Terms. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you. The foregoing limitations and exclusions apply to the maximum extent permitted by applicable law.
13.3 Indemnity. You agree to defend, indemnify and hold harmless us and our independent contractors, service providers and consultants, and our and their respective directors, employees and agents, from and against any claims, damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys’ fees) arising out of or related to: (a) any actual or alleged breach of these Terms or any other of our terms, policies or guidelines; (b) any actual or alleged violation of applicable laws or standards; © your wrongful, negligent or improper use of the Castle Service; or (d) your violation of the rights of any third party.
14.0 TERM AND TERMINATION
14.1 Term. Access to the Castle Service for Evaluation Trials ends upon termination of the Evaluation Trial, and for paid subscriptions, commences upon the date set forth in the Order Form and continues in effect for the term specified in the Order Form. Except as otherwise set forth in the applicable Order Form, all subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year, whichever is shorter. The pricing during any such renewal term will be the Castle Service list price in effect as of the effective date of renewal.
14.2 Termination. A subscription or Evaluation Trial will be terminable as follows: (a) in the event of a material remediable breach of these Terms; in such an event, the non-defaulting party will give notice of such default and opportunity to cure if the breach is remedial or reasonably capable of cure, and if the remediable breach is not substantially cured within thirty days from receipt of such written notice, the non-defaulting party may notify the defaulting party in writing of the immediate termination of all applicable subscriptions or Evaluation Trials; (b) immediately and automatically upon material breach of sections 4.5, 5.2, 5.4, 6, 7 and/or 11; or © you may terminate a subscription or Evaluation Trial at any time for convenience, provided that no refunds will be granted for previously paid amounts unless otherwise specified in the Order Form.
14.3 Effect. Termination will not relieve you of the obligation to pay fees payable to us for the period prior to the effective date of termination. Rightful and lawful termination of these Terms by either party, or expiration under the terms hereof, will not give rise to the right for the non-terminating party, or to either party in the case of expiration, to recover damages or to indemnification of any nature. The rights of either party under this section 14 are in addition to any other rights and remedies permitted by law or under these Terms.
14.4 Survival. Access to and rights of use associated with the Castle Service, including rights to Licensed Materials, will terminate upon termination of any subscription or Evaluation Trial. Sections 4.2, 4.3, 4.4, 4.5, 4.6, 4.7, 5.2, 5.3, 5.4, 6, 7, 8, 9.3, 10, 11, 13, 14.3, 14.4, and 15 will survive any termination or expiration of these Terms.
15.0 GENERAL PROVISIONS
15.1 Force Majeure. Except for obligations to pay money hereunder, no delay, failure or omission by either party to carry out or observe any of its obligations hereunder will give rise to any claim against such party or be deemed to be a breach of this Agreement if and for as long as such failure or omission arises from any cause beyond the reasonable control of that party.
15.2 Trademarks; Media. You are granted no right, title or license to any third party trademarks by these Terms, or to any of our trademarks or servicemarks. We reserve all right, title and interest in and to our trademarks, servicemarks, trade names, domain names, and similar identifiers, including Castle™. You hereby authorize us to disclose in our websites, marketing collateral, and corporate presentations that you have selected Castle and purchased the use of Castle’s solutions and services.
15.3 Governing Law. These Terms, the Castle Service, Services, and any disputes related to or concerning any of the foregoing (including tort as well as contract claims, and whether pre-contractual or extra-contractual) will be governed by the laws of one of the following jurisdictions, depending on your place of domicile or residence, notwithstanding the choice of law rules of any jurisdiction to the contrary: (a) the State of California, USA, if you reside or are domiciled in North, Central or South America; or (b) Sweden, if you reside or are domiciled in any country not described in subsection (a) of this section.
15.4 Dispute Resolution. (A) Any disputes between or claims brought by you or us arising out of or related to these Terms, the Castle Service, or Services (including tort as well as contract claims, and whether pre-contractual or extra-contractual, as well as the arbitrability of any disputes (subject to section 15.4(B) below) will be referred to and finally settled by binding arbitration before the International Court of Arbitration in accordance with the Rules of Arbitration of the International Chamber of Commerce (“ICC”) in effect at the time of arbitration except as inconsistent with this section. The arbitration will be conducted by telephone, on-line and/or based solely upon written submissions where no in-person appearance is required. If in-person appearance is required, such hearings will be held in (i) San Francisco, California, if California law applies in accordance with the section 15.3 above; or (ii) Copenhagen, Denmark, in all other cases. The arbitrator will apply the law specified in section 15.3 above. All awards may if necessary be enforced by any court having jurisdiction. The existence of any dispute, the existence or details of the arbitration proceeding, and all related documents, materials, evidence, judgments and awards therein, must be kept confidential. Except as required by law, no party will make any public announcements with respect to the proceeding or the award, except as required to enforce same. The parties hereby waive the right to a trial by jury and agree to only bring claims in an individual capacity and not as a plaintiff or class member in any purported class or representative proceeding. All claims (excluding requests for injunctive or equitable relief) between the parties must be resolved using arbitration in accordance with this section. Should either party file an action contrary to this section, the other party may recover lawyers’ fees and costs associated with enforcing this section, provided that the party seeking the award has notified the other party in writing of the improperly filed claim, and the other party has failed to withdraw the claim in a timely fashion. (B) Notwithstanding the foregoing, nothing in this section will preclude the right and ability to file and maintain at any time an action for recovery of injunctive or provisional relief in any court of competent jurisdiction under the laws applicable thereto.
15.5 Assignment. These Terms will not be assigned, delegated, or transferred by you, in whole or in part, whether voluntarily, involuntarily, by merger, consolidation, dissolution, sale of assets, or otherwise, without our prior written consent. Any such purported assignment, delegation or transfer without such written consent will be void. We may at any time assign these Terms without prior consent or notice. These Terms will be binding on, and inure to the benefit of, the parties and their respective and permitted successors and assigns.
15.6 Injunctive Relief. You acknowledge and agree that breach of these Terms, or any unauthorized use, disclosure or distribution of the Castle Service, may cause irreparable harm to us, the extent of which would be difficult to ascertain, and that we will be entitled to seek immediate injunctive relief (in addition to any other available remedies), in any court of competent jurisdiction under the applicable laws thereto.
15.7 Miscellaneous. The Terms (including all Order Forms) constitute the entire agreement between you and us and govern your use of the Castle Service and Services, superseding any prior agreements, understandings, communications or proposals. If any provision of the Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms remain in full force and effect. No waiver of any provision of these Terms will be deemed a further waiver or continuing waiver or such provision or any other provision, and our failure to assert any right or provision under these Terms will not constitute a waiver of such right or provision. Nothing herein will be deemed to create an agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship of any kind between us and any user or other person or entity, nor do these terms extend rights to any third party.