Our Terms

TERMS OF SERVICE

This agreement between OVERWIN INTERNET SOLUTIONS LIMITED®, a Delaware limited liability company (“OverWinTeam”), and you (“You,” “Your” or “Customer”) consists of (a) these Terms of Service, (b) the Additional Terms (as defined below) and (c) any OverWinTeam Order Form (as defined below), if applicable (collectively, this “Agreement”). This Agreement governs Your use of the OverWinTeam Services (as defined below). BY EXECUTING AN OverWinTeam ORDER FORM, CREATING AN ACCOUNT (AS DEFINED BELOW), USING OverWinTeam SERVICES OR OTHERWISE INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOU ARE LAWFULLY ABLE TO ENTER INTO THIS AGREEMENT, HAVE READ THIS AGREEMENT AND ARE BOUND BY THIS AGREEMENT, AND YOU HEREBY AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE AN INDIVIDUAL ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU HEREBY REPRESENT AND WARRANT TO OverWinTeam THAT YOU ARE AUTHORIZED TO ENTER INTO THIS AGREEMENT ON BEHALF OF CUSTOMER AND BIND CUSTOMER TO THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT, IN WHICH CASE, THE TERM “CUSTOMER” WILL REFER TO SUCH ENTITY. IF YOU DO NOT ACCEPT ALL THE TERMS AND CONDITIONS IN THIS AGREEMENT OR ARE NOT AN AUTHORIZED AGENT FOR CUSTOMER, DO NOT EXECUTE AN OverWinTeam ORDER FORM, CREATE AN ACCOUNT OR OTHERWISE USE THE OverWinTeam SERVICES. Customer may gain access to the OverWinTeam Services by (a) executing an OverWinTeam Order Form or (b) creating an online account here (an “Account”), which includes and requires clicking a box indicating Customer’s acceptance of this Agreement. If Customer elects to purchase access to the OverWinTeam Services through Customer’s Account, Customer will, among other things, select the following from the options presented: (i) the applicable OverWinTeam Services; (ii) the Service Term (as defined below); and (iii) a payment plan and method. OverWinTeam reserves the right, at any time and from time to time, to update, revise, supplement, and otherwise modify this Agreement (including the Additional Terms) and to impose new or additional rules, policies, terms, or conditions on Your use of the OverWinTeam Services. OverWinTeam will communicate changes to this Agreement by posting the new version of this Agreement on its website here or as otherwise determined by OverWinTeam in its sole discretion, at which time such updated Agreement will be immediately effective. Your continued use of any OverWinTeam Services after such notification of changes to this Agreement will constitute Your acceptance of any and all such changes. Notwithstanding the foregoing, OverWinTeam will notify You of any material changes to this Agreement. DEFINITIONS
  • “Additional Terms” means the Service Specific Terms, the Support Policies, the Data Processing Agreement, the Privacy Policy, the Third Party Terms and any other terms and conditions disclosed to Customer in an OverWinTeam Order Form, if applicable, through Customer’s Account or in connection with accessing any OverWinTeam Services, each of which are hereby incorporated by reference.
  • “Applicable Law” means all applicable laws, regulations, ordinances, rules, codes and orders of governmental authorities having jurisdiction over OverWinTeam and Customer.
  • “Content Data” means all applications, files, data, information or other content uploaded to or published, displayed or backed up through the OverWinTeam Services by Customers, Users or OverWinTeam (when acting upon Customer’s instructions as part of an OverWinTeam Service), excluding Usage Data.
  • “Documentation” means written, published information accessible here as updated from time to time.
  • “Fees” means the prices Customer agrees to pay to access and use the OverWinTeam Services inclusive of any discounts or promotional pricing provided.
  • “Infringement Claim” means any third party claim that the use by Customer solely of the OverWinTeam Services, as used as contemplated in this Agreement, infringes any patent, trademark or copyright of a third party, or misappropriates a trade secret (but only to the extent that the misappropriation is not a result of Customer’s actions) under the laws of the United States.
  • “Intellectual Property Rights” means copyrights (including, without limitation, the exclusive right to use, reproduce, modify, distribute, publicly display and publicly perform the copyrighted work), trademark rights (including, without limitation, trade names, trademarks, service marks, and trade dress), patent rights (including, without limitation, the exclusive right to make, use and sell), trade secrets, moral rights, right of publicity, authors’ rights, contract and licensing rights, goodwill and all other intellectual property rights as may exist now and/or hereafter come into existence and all renewals and extensions thereof, regardless of whether such rights arise under the law of the United States or any other state, country or jurisdiction.
  • “Login Credentials” means any user IDs, passwords, authentication keys or security credentials that enable Customer’s access to and management of the OverWinTeam Services.
  • “OverWinTeam Order Form” means a written ordering document executed by an authorized representative of each of OverWinTeam and Customer that incorporates these Terms of Service by reference. The OverWinTeam Order Form will specify the OverWinTeam Services that Customer is purchasing, payment obligations related thereto and the duration of the Service Term.
  • “OverWinTeam Partner” means a third party reseller or distributor authorized by OverWinTeam to sell OverWinTeam Services.
  • “OverWinTeam Services” means OverWinTeam’s services, a current list of which is located here.
  • “Service Specific Terms” means the additional terms that govern specific OverWinTeam Services, which are located here.
  • “Service Term” means the Initial Service Term (as defined below) plus any Renewal Term(s) (as defined below).
  • “Support” means the support services provided by or on behalf of OverWinTeam for the applicable OverWinTeam Services purchased by Customer pursuant to an OverWinTeam Order Form or through Customer’s Account, which are described in the Support Policies.
  • “Support Policies” means the statement of support, service level agreements and any other support policies for OverWinTeam Services located here.
  • “Third Party Product” means any non-OverWinTeam-branded products and services (including hardware) and non-OverWinTeam-licensed software products.
  • “Updates” means any updates, enhancements, modifications, improvements, patches and/or upgrades to any OverWinTeam Services that OverWinTeam generally makes available to its customers for no additional charge.
  • “Usage Data” means any and all information reflecting the access or use of the OverWinTeam Services by or on behalf of Users, including, but not limited to, visit-, session-, or stream-data and any statistical or other analysis, information or data based on or derived from any of the foregoing.
  • “Users” means any users that access Your content or that use the OverWinTeam Services under Customer’s Login Credentials.

ACCESS TO OVERWINTEAM SERVICES EVALUATION.

  • EVALUATION. If You access the OverWinTeam Services on an evaluation or beta basis (the “Evaluation Service”), then You may use the Evaluation Service only for evaluation purposes and for a period of thirty (30) calendar days, beginning on the date OverWinTeam provides Customer with Login Credentials, unless otherwise specified in writing by OverWinTeam (the “Evaluation Period”). Notwithstanding any other provision of this Agreement, OverWinTeam provides the Evaluation Service (i) free of charge and without Support and (ii) “AS IS” without indemnification or warranty of any kind but without prejudice to the statutory rights of consumers based in the EU. The Support Policies do not apply to the Evaluation Service. Also, certain features or services described in the Service Specific Terms may not be available for the Evaluation Service. Continued use of the OverWinTeam Services after the Evaluation Period requires that Customer (A) register for the applicable OverWinTeam Services through Customer’s Account or by executing an OverWinTeam Order Form and (B) submit the applicable payment. Upon expiration of the Evaluation Period, You will not have access to the Evaluation Service or to any Content Data therein.
  • ACCESS TO OverWinTeam SERVICES. Customer may access and use the OverWinTeam Services for which it has registered (via an OverWinTeam Order Form or through Customer’s Account) solely for its own benefit and only in accordance with this Agreement. As a condition to using the OverWinTeam Services, Customer must set up an authorized Account with Login Credentials. Customer will provide accurate and complete information in its Account and will update its information as necessary to keep it current. For purposes of fraud prevention, OverWinTeam may require Customer to provide documentation verifying their identity and payment information. Failure to provide accurate information in response to such a request will result in the cancellation of Customer’s order(s) and immediate termination of Customer’s Account. Customer may manage its Account through the OverWinTeam portal available here. Customer is solely responsible for the security of its and its Users’ Login Credentials. Customer will ensure that its Users do not share Login Credentials with others. Customer is responsible for any use that occurs under its Login Credentials, including any activities by Users. If Customer believes an unauthorized person has gained access to Login Credentials, Customer will notify OverWinTeam as soon as possible by contacting Customer Support via chat, phone or by email directed at top@overwinteam.com. Customer will ensure that Users comply with all terms and conditions of this Agreement and Customer remains responsible and liable for the acts and omissions of the Users. If Customer becomes aware of any violation by any User, Customer will immediately terminate that User’s access to Content Data.
  • UPDATES TO OverWinTeam SERVICES. OverWinTeam may change the OverWinTeam Services at any time, and may add, modify or discontinue references, ranges, options or features, as well as upgrade performance of OverWinTeam Services. Notwithstanding the foregoing, modifications to Third Party Products and urgent changes to the OverWinTeam Services in response to security risks, or legal or regulatory compliance updates may result in immediate modifications to the OverWinTeam Services. In the case of an update that substantially degrades existing OverWinTeam Services in use by Customer (removal of functionality, performance downgrade, etc.), Customer may terminate the relevant OverWinTeam Services by notifying the OverWinTeam Customer Support Team, within thirty (30) calendar days from the date the relevant update is implemented.
  • END OF LIFE. In the event that any OverWinTeam Service reaches end-of-life, OverWinTeam will attempt to notify You at least thirty (30) calendar days in advance of the end-of-life date (the “EOL Date”). Customer is responsible for migrating to a new OverWinTeam Service before the EOL Date or otherwise cease using said OverWinTeam Service before the EOL Date. Following the EOL Date, OverWinTeam will either offer a comparable OverWinTeam Service for You to migrate to for the remainder of your Service Term, a pro-rated credit or a prorated refund, to be determined by OverWinTeam at its sole discretion.
  • SUPPORT. Subject to the terms and conditions of this Agreement, OverWinTeam will provide support to Customer for the OverWinTeam Services in accordance with the then applicable Support Policy. Customer acknowledges that OverWinTeam is not responsible for technical issues that cannot be identified as being primarily caused by the OverWinTeam Services.
  • HARASSMENT. OverWinTeam reserves the right to terminate, without notice to You, Your Account and any and all OverWinTeam Services where, in OverWinTeam’s sole discretion, You harass or threaten OverWinTeam or any of OverWinTeam’s employees.

ORDERING

  • PURCHASES AND PRICING. Customer may purchase the right to access and use the OverWinTeam Services by (i) registering for the applicable OverWinTeam Services through Customer’s Account, or (ii) executing an OverWinTeam Order Form. OverWinTeam offers different types of rates depending on the type of OverWinTeam Service (monthly flat-rate, yearly flat-rate, metered-usage, etc.). These rates may be linked to a commitment to a particular period of use and/or a specific method of invoicing. Purchase of the OverWinTeam Services includes access to any applicable Support during the Service Term. The provisioning time for OverWinTeam Services may vary depending on the OverWinTeam Services ordered. Some OverWinTeam Services are made available only upon receipt by OverWinTeam of payment from Customer in advance for the relevant OverWinTeam Services. It is the responsibility of Customer to ensure the delivery terms for the ordered OverWinTeam Services meets Customer’s needs.
  • PAYMENT METHOD. Customer will pay OverWinTeam in accordance with the payment method identified in Customer’s Account or in an OverWinTeam Order Form, as applicable. Payment method options may include payment (i) by credit card, (ii) via eCheck/ACH, or (iii) through an online account with a third-party provider, such as Paypal. If Customer makes an automatic payment arrangement, OverWinTeam will provide Customer with a writing or its electronic equivalent describing the terms of such automatic payment arrangement. To use this automatic payment arrangement, Customer agrees to receive the terms of such authorization electronically as set forth herein. Customer also agrees that its electronic acceptance of the terms of such authorizations will constitute valid and binding electronic signature that will have the same force and effect as a handwritten signature by Customer. Customer will provide true, complete and accurate information with respect to the applicable method of payment and agrees to promptly contact OverWinTeam and to otherwise update Customer’s Account if any such information needs to be updated. Customer will ensure that Customer has sufficient funds or credit (as applicable) associated with the selected method of payment. Customer understands that the amounts charged or debited may vary and that this authorization will remain in effect until the expiration or termination of this Agreement. If an ACH payment is returned from the applicable bank account for insufficient or uncollected funds or for erroneous information, OverWinTeam may reinitiate the returned ACH debit to the applicable bank account. Any amounts owed to OverWinTeam that cannot be collected by ACH debit may be charged to any backup credit card on file for Customer.
  • PURCHASE ORDER. Customer may elect to issue a purchase order to OverWinTeam or an OverWinTeam Partner, as applicable, by indicating its preference to do so on the applicable OverWinTeam Order Form. If Customer so elects to issue a purchase order, Customer must issue such purchase order to OverWinTeam or an OverWinTeam Partner within five (5) business days from the Effective Date of any OverWinTeam Order Form, or OverWinTeam shall have the option to cancel the OverWinTeam Order Form and its terms shall be null and void. Any additional or conflicting terms contained in any Customer purchase order, proposal or other document shall be deemed to be rejected by OverWinTeam without need of further notice of objection, even if such document is acknowledged or accepted by OverWinTeam, and regardless of any statement to the contrary which may be contained therein, and shall be of no effect or in any way binding upon OverWinTeam.
  • PAYMENT TERMS. Customers who choose to pay by credit card shall be charged on behalf of OverWinTeam on or about the date Customer is invoiced by OverWinTeam for the OverWinTeam Services purchased. Subject to a successful credit check initiated by OverWinTeam, Customers that pay by eCheck or ACH will pay all invoices issued by OverWinTeam within thirty (30) calendar days of the date of the invoice or as otherwise set forth in an applicable OverWinTeam Order Form. Notwithstanding the foregoing, if Customer has arranged for payment by credit card, OverWinTeam may charge Customer’s card on or after the invoice date. Except as otherwise provided in this Agreement or as otherwise provided by Applicable Law, all Fees are non-cancelable and non-refundable. Unless otherwise set forth in the Service Specific Terms, all monthly or prepaid Fees will be due in advance and all Fees based on actual metered usage of an OverWinTeam Service will be due in arrears. If any payment is delinquent (including if payment is late due to a credit card chargeback or insufficient funds), OverWinTeam may, without limiting any remedies available to OverWinTeam: (i) terminate this Agreement and/or any applicable OverWinTeam Order Form; or (ii) suspend performance of or access to the applicable OverWinTeam Services, until payment is made current. Customer will pay interest on all delinquent amounts at the lesser of 1.5% per month or the maximum rate permitted by Applicable Law. If OverWinTeam terminates this Agreement for non-payment, the Fees for the remainder of the Service Term shall be due immediately. Customer will be responsible for all reasonable expenses (including attorneys’ fees) incurred by OverWinTeam in collecting any delinquent amounts. All Fees are exclusive of all sales, use, excise, value added, withholding and other taxes, and all customs duties and tariffs now or hereafter claimed or imposed by any governmental authority upon the OverWinTeam Services will be paid by Customer. OverWinTeam reserves the right to increase prices for OverWinTeam Services at any time, although increases in prices for OverWinTeam Services will not go into effect until the next renewal of the Service Term. Upon commencement of any Renewal Term, unless otherwise provided in the terms of an applicable promotion or provided in an OverWinTeam Order, any promotional pricing or discounts shall automatically discontinue, and Customer shall be charged the rates for the OverWinTeam Services posted on the OverWinTeam website or detailed in the applicable OverWinTeam Order Form. If Customer purchases through an OverWinTeam Partner, all fees and other procurement and delivery terms will be agreed between Customer and the applicable OverWinTeam Partner. EXCEPT AS REQUIRED BY APPLICABLE LAW OR AS EXPRESSLY SET FORTH IN THIS AGREEMENT, OverWinTeam IS NOT OBLIGATED TO REFUND ANY FEES OR OTHER PAYMENTS ALREADY PAID, AND ANY CANCELLATION BY CUSTOMER WILL TAKE PLACE AT THE END OF THE APPLICABLE SERVICE TERM.
  • INVOICE DISPUTES. If the parties determine that certain billing inaccuracies are attributable to OverWinTeam, OverWinTeam will apply credit to Customer’s Account. To the fullest extent permitted by law, Customer waives all claims relating to Fees unless claimed within sixty (60) calendar days after being invoiced by OverWinTeam.
  • EU CONSUMER POLICY. If You are a consumer based in the EU, You have the right to cancel this Agreement within fourteen (14) calendar days of the date on which You requested the OverWinTeam Services, without giving any reason. To exercise Your right to cancel, You must notify OverWinTeam of Your decision to cancel this Agreement by contacting Customer Support via OverWinTeam Control Panel or email directed to support@corp.ovh.us. To meet the fourteen (14) calendar day deadline provided above, it is sufficient for You to send Your notification concerning the exercise of the right to cancel before the cancellation period has expired. If You cancel this Agreement, we will reimburse to You all payments received from You without undue delay and not later than fourteen (14) calendar days from the day on which we are informed about Your decision to cancel the Agreement. We will make the reimbursement using the same means of payment as You used for the initial transaction, unless You have expressly agreed otherwise; in any event, You will not incur any fees as a result of the reimbursement. If You are a consumer based in the EU and You have agreed to the OverWinTeam Services commencing immediately, You will be required to pay a pro-rated amount of the Fees applicable to the OverWinTeam Services You have requested based on the initial Fees You have paid for the OverWinTeam Services and the date on which You exercise Your statutory right to cancel the Agreement.
  • REFUND AND CANCELLATION. Except as required by applicable law or as expressly set forth in this agreement, OverWinTeam is not obligated to refund any fees or other payments already paid, and any cancellation by customer will take place at the end of the applicable service term.

CONFIDENTIALITY

As used in this Agreement, “Confidential Information” means, subject to the exceptions set forth in the following sentence, any information or data, regardless of whether it is in tangible form, disclosed by either OverWinTeam or Customer (the “Disclosing Party”) that the Disclosing Party has either marked as confidential or proprietary, or has identified in writing as confidential or proprietary within thirty (30) calendar days of disclosure to the other party (the “Receiving Party”); provided, however, that a Disclosing Party’s business plans, strategies, technology, research and development, current and prospective customers, billing records, and products or services will be deemed Confidential Information of the Disclosing Party even if not so marked or identified. OverWinTeam’s Confidential Information includes, without limitation, the OverWinTeam Services, any information related thereto and the Login Credentials. Information will not be deemed Confidential Information if such information: (a) is known to the Receiving Party prior to receipt from the Disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (b) becomes known (independently of disclosure by the Disclosing Party) to the Receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (c) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the Receiving Party; or (d) is developed independently by the Receiving Party without use of any Confidential Information of the Disclosing Party. Each party agrees that it will use the Confidential Information of the other party solely to perform its obligations or exercise its rights under this Agreement. Neither OverWinTeam nor Customer will disclose, or permit to be disclosed, the other party’s Confidential Information directly or indirectly, to any third party without the other party’s prior written consent. Both OverWinTeam and Customer will use commercially reasonable measures to protect the confidentiality and value of the other party’s Confidential Information. Notwithstanding any provision of this Agreement, either party may disclose the other party’s Confidential Information, in whole or in part: (i) to its employees, officers, directors, consultants and professional advisers (e.g., attorneys, auditors, financial advisors, accountants and other professional representatives) who have a need to know and are legally bound to keep such Confidential Information confidential by confidentiality obligations or, in the case of professional advisors, are bound by ethical duties to keep such Confidential Information confidential consistent with the terms of this Agreement; and (ii) as required by Applicable Law (in which case each party will, if permitted by Applicable Law, provide the other with prior written notification thereof and use its reasonable efforts to minimize such disclosure to the extent permitted by Applicable Law). Both OverWinTeam and Customer agree to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. In the event of an actual or threatened breach of the provisions of this Section, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Both OverWinTeam and Customer will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement.

INTELLECTUAL PROPERTY AND RESTRICTIONS

  • OWNERSHIP. This Agreement contains a limited right to access and use the OverWinTeam Services during a Service Term, not a transfer of title to the OverWinTeam Services. All Intellectual Property Rights in the OverWinTeam Services belong exclusively to OverWinTeam and its licensors. Customer is granted no licenses of any kind to any Intellectual Property Rights other than as expressly granted herein. Customer will not do, or cause to be done, any acts or things contesting or in any way impairing or tending to impair any portion of the right, title, and interest of OverWinTeam in and to the Intellectual Property Rights. Customer will not delete or in any manner alter the copyright, trademark, or other proprietary rights notices or markings that appear on the OverWinTeam Services as delivered to Customer. Except as expressly authorized in this Agreement, You will not make any copies or duplicates of any OverWinTeam Services without the prior written permission of OverWinTeam. To the extent Customer provides any suggestions, comments or other feedback related to the OverWinTeam Services to OverWinTeam or its authorized third-party agent(s) (“Feedback”), Customer hereby grants OverWinTeam a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, sublicensable, transferable license to copy, display, distribute, perform, modify and otherwise use such Feedback or subject matter thereof in any way and without limitation.
  • RESTRICTIONS. Except as otherwise expressly provided under this Agreement, Customer will have no right, and Customer specifically agrees not to, and will take commercially reasonable steps to ensure that each User does not: (i) transfer, assign or sublicense the OverWinTeam Services to another person or entity, and Customer acknowledges that any such attempted transfer, assignment or sublicense will be void; (ii) make error corrections to, or otherwise modify or adapt, the OverWinTeam Services or create derivative works based upon the OverWinTeam Services, or permit third parties to do the same; (iii) reverse engineer or decompile, decrypt, disassemble or otherwise reduce the OverWinTeam Services to human-readable form, except to the extent otherwise expressly permitted under Applicable Law notwithstanding this restriction; (iv) disclose, provide or otherwise make available trade secrets contained within the OverWinTeam Services in any form, to any third party without the prior written consent of OverWinTeam; or (vi) use or access the OverWinTeam Services (A) to develop any similar software applications, products or services, (B) to spam, distribute malware or conduct other malicious, abusive, intrusive or illegal activities, (C) to engage in cryptocurrency mining without OverWinTeam’s prior written approval (D) in a way that could harm the OverWinTeam Services or impair anyone else’s use of it, (E) in a way intended to work around the OverWinTeam Services’ technical limitations, recurring fees or usage limits, (F) to violate any rights of others, (G) to try to gain unauthorized access to, test the vulnerability of, or disrupt the OverWinTeam Services or any other service, device, data account or network or (H) in any application or situation where failure of the OverWinTeam Services could lead to the death or serious bodily injury of any person or to severe physical or environmental damage.

DATA SECURITY

  • PRIVACY AND DATA STORAGE. OverWinTeam’s privacy and data storage practices are described in OverWinTeam’s data processing agreement located here (the “Data Processing Agreement”), which is hereby incorporated by reference. See also OverWinTeam’s privacy policy located here (the “Privacy Policy”), which is hereby incorporated by reference.
  • MONITORING. OverWinTeam has the right to verify Your compliance with this Agreement. If OverWinTeam contacts Customer to verify compliance, Customer will provide information or other materials reasonably requested to assist in the verification (For German customers only: A Customer from Germany is only obliged to provide information necessary for such verification, available to the Customer and reasonably requested for such verification). OverWinTeam may monitor the overall performance and stability of the infrastructure of the OverWinTeam Services. Customer may not block or interfere with that monitoring. If OverWinTeam reasonably believes a problem with the OverWinTeam Services may be attributable to Content Data or Customer’s use of the OverWinTeam Services, Customer will cooperate with OverWinTeam to identify the source of and resolve that problem.
  • PROTECTED INFORMATION. You represent and warrant that You will not submit any unencrypted Protected Health Information, as defined in the Health Insurance Portability and Accountability Act (45 CFR 160.103), or any unencrypted personally identifiable information subject to regulatory protection under Applicable Law (collectively “Unencrypted Protected Information”) to OverWinTeam, whether as part of the OverWinTeam Services or otherwise. You represent and warrant that You will not submit any encrypted Protected Health Information, as defined in the Health Insurance Portability and Accountability Act (45 CFR 160.103), or any encrypted personally identifiable information subject to regulatory protection under U.S. law (collectively “Encrypted Protected Information”) to OverWinTeam, whether as part of the OverWinTeam Services or otherwise, unless we have entered into a Business Associate Agreement (“BAA”). In the event You will submit encrypted Protected Information in conjunction with Your use of the OverWinTeam Services, You must contact OverWinTeam at top@overwinteam.com to request a BAA. Notwithstanding anything to the contrary in this Agreement, You recognize and agree that OverWinTeam will have no liability whatsoever under this Agreement or otherwise for any Unencrypted Protected Information or Encrypted Protected Information You provide in violation of this Section, and You agree to fully indemnify and hold harmless OverWinTeam from any third party claims resulting from a violation or alleged violation of this Section.

CONTENT DATA

  • CONTENT DATA RIGHTS. As between Customer and OverWinTeam, Customer retains all right, title, and interest in the Content Data, except for the limited license expressly granted by Customer to OverWinTeam in this Section 7. Customer hereby grants to OverWinTeam a royalty-free, fully paid up, worldwide, sublicensable, non-transferable (except as set forth in Section 19(j)) right and license to copy, display, distribute, modify and otherwise use the Content Data, solely as necessary to provide the OverWinTeam Services to Customer. Customer further acknowledges that OverWinTeam may collect Usage Data and may aggregate and/or anonymize Usage Data to use for statistical purposes and share samples of such aggregated and/or anonymized Usage Data with other third parties. (For German customers only: If Customer is from Germany, OverWinTeam may only collect and aggregate anonymized Usage Data to use for statistical purposes and share samples of such aggregated and anonymized Usage Data with other third parties.)
  • CUSTOMER REPRESENTATIONS AND OBLIGATIONS. Customer will only use the OverWinTeam Services with Content Data to which it has full right, title or license. Customer represents, warrants and covenants that its use of the OverWinTeam Services and related backup to and storage of Content Data complies and will comply with all Applicable Laws, including those related to data privacy, data security, international communication and the exportation of technical, personal or sensitive data. Customer will not, and will take commercially reasonable steps to ensure that each User does not, distribute, publish, store or transmit content that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to anyone; (ii) may create a risk of any other loss or damage to any person or property; (iii) may constitute or contribute to a crime or tort; (iv) contains any information or content that is illegal, unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, or otherwise objectionable; or (v) contains any information or content that You do not have a right to make available under any law or under contractual or fiduciary relationships. Customer represents and warrants that the Content Data does not and will not violate any third-party rights, including any Intellectual Property Rights, and rights of publicity and privacy. If Customer becomes aware that any of the Content Data or any User’s access to or use of the Content Data violates this Agreement, Customer will take immediate action to remove the applicable part of Content Data or suspend the User’s access. Customer will ensure that Customer’s use of the OverWinTeam Services complies at all times with Customer’s privacy policies and all Applicable Laws, including any encryption requirements. Customer is solely responsible for Content Data. Except as provided in the Data Processing Agreement, Customer is responsible for protecting the security of Content Data, including any access to Content Data that Customer provides to its employees, customers or other third parties, and when it is in transit to and from the OverWinTeam Services. Customer must take and maintain commercially reasonable steps regarding the security, protection and backup of Content Data, which might include the use of encryption technology to protect Content Data from unauthorized access. Customer is responsible for providing any necessary notices to Users and for obtaining any legally-required consents from Users concerning their use of the OverWinTeam Services. Customer is responsible for any losses or other consequences arising from Customer’s failure to encrypt or back up Content Data. Customer will have and maintain appropriate policies and procedures for cybersecurity and to ensure compliance with its regulatory or legal obligations.
  • TELEPHONE CONSUMER PROTECTION ACT. By providing your telephone number(s) to OverWinTeam, you consent to receive telephone calls by and behalf of OverWinTeam and its affiliates, including telephone calls made by or using an automatic telephone dialing system or artificial or prerecorded voice, at the number(s) you have provided, for all non-marketing purposes, including but not limited to all purposes described in this Agreement or relating to OverWinTeam Services.
  • DIGITAL MILLENNIUM COPYRIGHT ACT. OverWinTeam respects the intellectual property rights of others, and we require our Customers to do the same. The contact information for our Digital Millennium Copyright Act (“DMCA”) agent is as follows: – OVERWIN INTERNET SOLUTIONS LIMITED – Mapp Street, 3rd Floor, Belize City, Belize – top@overwinteam.com OverWinTeam is committed to managing copyright complaints responsibly and in compliance with applicable laws, but OverWinTeam cannot determine whether something is being used legally without input from the copyright holders. In those circumstances where the United States DMCA is applicable, it is our policy to expeditiously process all valid notices of alleged copyright infringement. Please note that sending a DMCA notice initiates a statutorily-defined legal process and we will share your full notice, including your contact information, with the OverWinTeam customer at issue. In most instances, OverWinTeam does not have access to particular content hosted by OverWinTeam customers. Thus, upon receipt of a valid DMCA notice, OverWinTeam will forward your notice to the appropriate OverWinTeam customer and require a timely and adequate response from the OverWinTeam customer. You may also send your DMCA notice directly to the OverWinTeam customer as well. OverWinTeam has adopted and reasonably implemented a policy that provides for the termination in appropriate circumstances of OverWinTeam customers who are repeat infringers. For additional details and information concerning OverWinTeam’s DMCA policies and procedures.

CONTENT DATA

THIRD PARTY PRODUCTS
Customer is responsible for any Third Party Products that a third party licenses, sells or makes available to Customer that Customer installs or uses with the OverWinTeam Services. Customer’s use of such Third Party Products is governed by separate terms between Customer and that third party. OverWinTeam is not a party to and is not bound by any of those separate terms. Certain Third Party Products may carry a limited warranty from the third-party provider of such Third Party Products. To the extent required or allowed, if OverWinTeam makes available to Customer a Third Party Product in connection with Customer’s use of the OverWinTeam Services, OverWinTeam will pass through to Customer any such manufacturer warranties related to such Third Party Products. Notwithstanding the foregoing, Customer acknowledges that OverWinTeam is not responsible for the availability or for the fulfillment of any Third Party Product warranty or for problems attributable to use of Third Party Products. ALL THIRD PARTY PRODUCTS ARE PROVIDED BY OVH ON AN “AS IS” BASIS. You are responsible for reviewing, accepting, and complying with any third party terms of use or other restrictions applicable to the Third Party Product. OverWinTeam reserves the right to suspend or terminate any Third Party Products at any time. The third party terms applicable to Third Party Products made available by OverWinTeam, as may be modified from time to time (the “Third Party Terms”).

TERM AND TERMINATION

  • TERM. This Agreement will be effective upon Customer’s execution of an OverWinTeam Order Form or when Customer otherwise clicks a box agreeing to this Agreement (during Account creation or otherwise) and, unless earlier terminated as set forth in this Agreement, continue in effect for the initial service term identified on the OverWinTeam Order Form or selected in the Account, as applicable (the “Initial Service Term”). UNLESS OTHERWISE SET FORTH IN AN OverWinTeam ORDER FORM, IF APPLICABLE, THIS AGREEMENT WILL AUTOMATICALLY RENEW FOR ADDITIONAL PERIODS OF EQUAL DURATION (EACH, A “RENEWAL TERM”), UNLESS EITHER PARTY GIVES NOTICE OF NON-RENEWAL AT LEAST THIRTY (30) CALENDAR DAYS PRIOR TO THE END OF THE THEN-CURRENT SERVICE TERM OR, IF THE SERVICE TERM IS MONTH-TO-MONTH, EITHER PARTY MAY GIVE NOTICE OF NON-RENEWAL ANY TIME PRIOR TO THE END OF THE THEN CURRENT SERVICE TERM. You may provide notice of non-renewal by submitting a support ticket online through Your OverWinTeam Account.
  • TERMINATION FOR CONVENIENCE. Unless otherwise stated in this Agreement, Customer may terminate this Agreement for convenience at any time by giving OverWinTeam at least thirty (30) calendar days’ advance written notice. If Customer elects to terminate this Agreement for convenience in accordance with this Section 9(b), they shall be subject to an early termination fee equal to the monthly recurring Fees multiplied by the number of months remaining in the Service Term.
  • TERMINATION FOR CAUSE. In addition to any other termination rights set forth in this Agreement, (i) OverWinTeam can terminate this Agreement immediately upon written notice to Customer if Customer breaches Section 5(b) or Section 7(b); and (ii) either party can terminate this Agreement upon written notice to the other party if (A) such other party breaches this Agreement (other than breaches of Section 5(b) or 7(b)) and fails to cure such breach within thirty (30) days of receipt of written notice thereof or (B) such other party (1) becomes insolvent, admits in writing its inability to pay debts as they mature or makes an assignment for the benefit of creditors; (2) becomes subject to control of a trustee, receiver or similar authority or any bankruptcy or insolvency proceeding; or (3) an equivalent or similar event or proceeding occurs in respect of the Customer in any jurisdiction (in each case of (1), (2) and (3), which, if initiated involuntarily, is not dismissed within forty-five (45) calendar days of its institution).
  • EFFECTS OF TERMINATION. THE TERMINATION OF THE OverWinTeam SERVICES WILL CAUSE SUCH OverWinTeam SERVICES TO CEASE FUNCTIONING AND RESULT IN CUSTOMER NOT BEING ABLE TO ACCESS ANY CONTENT DATA. FOLLOWING TERMINATION OF THIS AGREEMENT, OverWinTeam WILL DESTROY ALL CONTENT DATA (WITHOUT PREJUDICE TO SECTION 9(e) BELOW). The termination of this Agreement for any reason will not affect: (i) the obligations of Customer and OverWinTeam to account for and pay to one another any amounts for which they are obligated by virtue of transactions or events which occurred prior to the effective date of termination; or (ii) any other obligation or liability which either Customer or OverWinTeam has to the other under this Agreement and which, by its nature, would reasonably be expected to survive termination. The following Sections will survive any expiration or termination of this Agreement: 1, 3(b), 3(c), 4, 5, 6(c), 7(a), 9(d), 9(e), 11, 12, 13, 14, 15 and 19.
  • CONTENT DATA POST EXPIRATION OR TERMINATION. Before expiration or termination of the applicable Service Term, OverWinTeam recommends that Customer ensures it places a copy of its Content Data in a place that can be accessed without the OverWinTeam Services. Provided that Customer is in compliance with all of the terms and conditions of this Agreement, OverWinTeam will extend Customer’s ability to access the OverWinTeam Services for fifteen (15) calendar days following the end of the Service Term if Customer notifies OverWinTeam via email (directed to top@overwinteam.com) prior to the end of the Service Term. In such event, (i) OverWinTeam will enable Customer’s access to the OverWinTeam Services for a maximum of fifteen (15) calendar days following the end of the Service Term (at no additional cost to Customer) for the sole purpose of enabling Customer’s retrieval of its Content Data, and (ii) Customer’s use of the OverWinTeam Services during such complimentary period is subject to the terms and conditions of this Agreement. OverWinTeam is not responsible for the availability or accessibility of Content Data following the later of (A) the expiration of the complimentary period should Customer make such request or (B) the end of the Service Term.

SUSPENSION

  • GENERALLY. OverWinTeam may suspend Your use of the OverWinTeam Services if OverWinTeam reasonably determines: (i) Customer, or Customer’s use of the OverWinTeam Services, is in breach of this Agreement; (ii) Customer fails to address OverWinTeam’s request to take action as specified in Section 7(b); (iii) Customer’s use of the OverWinTeam Services poses a security risk to the OverWinTeam Services or other users of the OverWinTeam Services; (iv) suspension is warranted pursuant to OverWinTeam’s receipt of a subpoena, court order, or a request by a law enforcement agency; or (v) as otherwise expressly set forth in this Agreement. OverWinTeam will give You notice before OverWinTeam suspends You, subject to Applicable Law, and unless OverWinTeam reasonably determines that providing the notice presents risk of harm to the OverWinTeam Services or any person or property. OverWinTeam is entitled to obtain injunctive relief if Customer’s use of the OverWinTeam Services is in violation of any restrictions set forth in this Agreement.
  • EFFECT OF SUSPENSION. You will remain responsible for all Fees incurred before or during any suspension. You will not be entitled to any service credits under any applicable Service Level Agreement that You might have otherwise accrued during the period of suspension.

ALLOCATION OF RISK

Customer acknowledges and agrees that OverWinTeam has set its prices and entered into this Agreement and permitted Customer’s access to the OverWinTeam Services in reliance upon the disclaimers of warranty and the limitations of liability in this Agreement, that the same reflect an allocation of risk between OverWinTeam and Customer (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of the bargain between OverWinTeam and Customer. If Customer is subject to Applicable Laws that prohibit Customer from indemnifying OverWinTeam as set forth herein or prohibit Customer from entering into the risk allocation arrangement set forth herein, then the terms of such provisions of this Agreement will apply to Customer only to the fullest extent permitted by Applicable Law, it being understood that Customer and OverWinTeam each wish to enforce the provisions of this Agreement to the maximum extent permitted by Applicable Law.

DISCLAIMER

EXCEPT AS EXPRESSLY PROVIDED HEREIN AND TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, OverWinTeam SERVICES ARE PROVIDED ON AN “AS IS” BASIS WITHOUT ANY WARRANTY, TERMS OR CONDITIONS WHATSOEVER. ALL OTHER WARRANTIES, TERMS OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF NON-INFRINGEMENT, TITLE, SATISFACTORY QUALITY, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, ARE SPECIFICALLY EXCLUDED AND DISCLAIMED BY OverWinTeam AND ITS LICENSORS, TO THE EXTENT PERMITTED BY APPLICABLE LAW. NEITHER OverWinTeam NOR ITS LICENSORS WARRANT THAT THE OverWinTeam SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, THAT THE OverWinTeam SERVICES WILL BE COMPATIBLE WITH CUSTOMER’S DEVICES, OR THAT THE OverWinTeam SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. EXCEPT AS EXPRESSLY PROVIDED HEREIN AND SAVE TO THE EXTENT SUCH ALLOCATION OF RISK IS NOT PERMITTED BY APPLICABLE LAW, THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF OverWinTeam SERVICES IS WITH CUSTOMER. IN NO EVENT WILL OverWinTeam OR ITS LICENSORS BE LIABLE FOR ANY LOSS, LIABILITY, DAMAGES OR CLAIMS RELATED TO ANY REGULATORY OBLIGATIONS CUSTOMER MAY HAVE RELATED TO ITS CONTENT DATA.

LIMITATION OF OVERWINTEAM LIABILITY

  • TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL OverWinTeam BE LIABLE TO CUSTOMER FOR ANY LOST PROFITS, LOST SAVINGS, LOST OR CORRUPTED CONTENT DATA, UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OF CONTENT DATA, LOST REVENUE, BUSINESS INTERRUPTION, OR LOSS OF CAPITAL (IN EACH CASE, WHETHER DIRECT OR INDIRECT) OR FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT OR INCIDENTAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OverWinTeam SERVICES FURNISHED OR TO BE FURNISHED UNDER THIS AGREEMENT OR THE USE THEREOF, EVEN IF OverWinTeam HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. EXCEPT FOR LIABILITY ARISING OUT OF OverWinTeam’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 14, THE AGGREGATE LIABILITY OF OverWinTeam IN CONNECTION WITH ANY AND ALL CLAIMS HOWSOEVER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OverWinTeam SERVICES FURNISHED OR TO BE FURNISHED UNDER THIS AGREEMENT WILL IN ANY EVENT BE ABSOLUTELY LIMITED TO: (i) THE AMOUNT PAID TO OverWinTeam FOR THE OverWinTeam SERVICES UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE THE DAMAGED PARTY NOTIFIES THE OTHER PARTY IN WRITING OF THE CLAIM FOR DAMAGES; OR (ii) IF GREATER, SUCH AMOUNT AS IS THE MINIMUM AMOUNT FOR WHICH OverWinTeam WOULD BE LIABLE UNDER APPLICABLE LAW.
  • IF CUSTOMER IS FROM GERMANY, NONE OF THE PROVISIONS OF THIS AGREEMENT SHALL EXCLUDE OR LIMIT ANY LIABILITY FOR DAMAGE FROM INJURY TO LIFE, BODY OR HEALTH OR ANY LIABILITY FOR ANY DAMAGE ARISING FROM GROSSLY NEGLIGENT OR INTENTIONAL BREACH OF DUTY OR OTHER CONDUCT.
  • FURTHER LIMITATIONS. OverWinTeam’s licensors and service providers will have no liability of any kind under this Agreement. Customer may not bring a claim under this Agreement more than eighteen (18) months after the cause of action arises. For German customers only Customer may not bring a claim under this Agreement more than eighteen (18) month after the cause of action arises and the Customer obtains knowledge of the circumstances giving rise to the claim and of the identity of the obligor, or would have obtained such knowledge if he had not shown gross negligence.

COPYRIGHT, PATENT, TRADE SECRET, AND TRADEMARK INDEMNITY

  • INDEMNITY FOR OverWinTeam SERVICES. Subject to the remainder of this Section 14, OverWinTeam will defend Customer against an Infringement Claim and indemnify Customer from the resulting costs and damages finally awarded against Customer to that third party by a court of competent jurisdiction or agreed to in settlement; provided that Customer: (i) promptly provides OverWinTeam with notice of any Infringement Claim; (ii) grants OverWinTeam sole control over the claim’s defense and settlement, and any related action challenging the validity of the allegedly infringed patent, trademark or copyright; and (iii) reasonably cooperates in response to OverWinTeam’s requests for assistance. Customer may not settle or compromise any Infringement Claim without OverWinTeam’s prior written consent. Notwithstanding the foregoing, OverWinTeam will have no obligation under this Section or otherwise with respect to any claim or award based on: (i) a combination of the OverWinTeam Services with non-OverWinTeam data, products, business processes or content, including Content Data; (ii) use of the OverWinTeam Services for a purpose or in a manner not specified in this Agreement or the Service Specific Terms, or otherwise in a manner for which the OverWinTeam Services were not designed; (iii) any modification of the OverWinTeam Services made without OverWinTeam’s express written approval; or (iv) any Evaluation Service. This Section 14(a) states Your exclusive remedy for any Infringement Claims save that where the Customer is a consumer based in the EU, nothing in this Section 14(a) will limit or exclude the Customer’s statutory rights except as permitted by Applicable Law.
  • INDEMNITY FOR THIRD PARTY PRODUCTS. To the extent required or allowed, OverWinTeam will pass through to Customer any indemnities related to Third Party Products, if any. Notwithstanding the foregoing, Customer acknowledges that OverWinTeam is not responsible for the fulfillment of any Third Party Product indemnities or for problems attributable to use of Third Party Products.
  • REMEDIES. If any component of the OverWinTeam Services becomes, or in OverWinTeam’s opinion is likely to become, the subject of an Infringement Claim, OverWinTeam will at OverWinTeam’s option and expense: (i) procure the rights necessary for Customer to keep using such component; (ii) modify or replace such component to make it non-infringing; or (iii) terminate this Agreement and refund any pre-paid fees for any OverWinTeam Services pro-rated for its remaining term.

INDEMNITY BY CUSTOMER

Customer will, to the fullest extent permitted by Applicable Law, indemnify OverWinTeam and its officers, directors, shareholders, employees and agents and their respective successors and assigns (collectively, the “OverWinTeam Indemnified Parties”) against and hold the OverWinTeam Indemnified Parties harmless from any and all claims, liabilities, damages, costs and expenses, including reasonable attorneys’ fees in connection with investigating, defending, or settling any claim relating to or arising out of any acts or omissions on the part of Customer which give rise to claims against the OverWinTeam Indemnified Parties by third parties (unaffiliated with OverWinTeam), provided any final settlement will require OverWinTeam’s consent (which will not be unreasonably withheld) if the final settlement or compromise does not provide for the unconditional and full release of the OverWinTeam Indemnified Parties or if the final settlement or compromise requires the specific performance of the OverWinTeam Indemnified Parties. In all events, OverWinTeam will have the right to participate in the defense of any such suit or proceeding through counsel of its own choosing at OverWinTeam’s own cost. Customer will also indemnify and hold harmless the OverWinTeam Indemnified Parties for any costs and expenses, including reasonable attorneys’ fees, incurred in responding to any subpoena, search warrant, or court order requiring production of information or documents related to Customer (“Requests”). Unless prohibited by court order or Applicable Law, OverWinTeam will notify Customer of any Requests received by OverWinTeam.

U.S. GOVERNMENT PURCHASES

OverWinTeam provides the OverWinTeam Services, including related software and technology, as “Commercial Items,” as that term has been defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms have been used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the OverWinTeam Services are provided to U.S. government customers (i) only as Commercial Items; and (ii) with only those rights as provided under the terms and conditions of this Agreement. If a government agency has a need for rights not conveyed under these terms, it must negotiate with OverWinTeam to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.

ANTICORRUPTION LAWS

Customer and OverWinTeam each acknowledge that it is familiar with the U.S. Foreign Corrupt Practices Act (the “FCPA”) and agrees to comply with its terms as well as any provisions of local law related thereto. Specifically, Customer and OverWinTeam each are familiar with the provisions of the FCPA prohibiting the payment or giving of anything of value, including but not limited to payments, gifts, travel, entertainment, and meals, either directly or indirectly, to an official of a foreign government or political party for the purpose of influencing an act or decision in his or her official capacity or inducing the official to use his or her party’s influence with that government, to obtain or retain business involving the offering. Customer and OverWinTeam each agree to not violate or knowingly let anyone violate the FCPA and that no payment it makes will constitute a bribe, influence payment, kickback, rebate, or other payment that violates the FCPA or any other applicable anti-corruption or anti-bribery law.

YOUR OBLIGATIONS

Customer represents and warrants that (a) Customer will use the OverWinTeam Services only for lawful purposes and will comply with all Applicable Laws and (b) Customer’s access to and collection, use, relocation, storage, disclosure and disposition of Content Data will comply with all Applicable laws, including without limitation, all privacy, and data security laws.

GENERAL PROVISIONS

  • PUBLICITY. Customer is permitted to state publicly that it is a customer of OverWinTeam; however, Customer may not use the OverWinTeam name, logo, or other identifying marks without OverWinTeam’s prior written consent. Customer agrees that OverWinTeam may use Customer’s name and logo online or in promotional materials. OverWinTeam may also verbally reference Customer as a customer of the OverWinTeam Services.
  • SEVERABILITY. Every provision of this Agreement will be construed, to the extent possible, so as to be valid and enforceable. If any provision of this Agreement so construed is held by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, such provision will be deemed severed from this Agreement, and all other provisions will remain in full force and effect.
  • GOVERNING LAW AND VENUE. Except as otherwise expressly provided herein, this Agreement is governed by the laws of the Commonwealth of Virginia, United States of America, without giving effect to any choice or conflict of law provision or rule. For any claims arising out of relating to this Agreement or the OverWinTeam Services each party hereby irrevocably agrees and submits to personal jurisdiction in the Commonwealth of Virginia and exclusive jurisdiction and venue in the state courts of Fairfax County and the federal district courts in the Eastern District of Virginia. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE OverWinTeam SERVICES. Customer consents to service of process via email at the email address(es) provided by Customer and waives any requirement under the Hague Convention or other judicial treaty requiring that legal process be translated into any language other than English. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. The courts in some countries will not apply U.S. law to some types of disputes. If You reside in one of those countries, then where U.S. law is excluded from applying, the laws of Your country of residence will apply to any dispute or difference arising out of or in connection with the Agreement.
  • OTHER APPLICABLE LAW. If You are otherwise subject to laws that prohibit Customer from agreeing to the foregoing governing law and/or venue provisions, then (i) the terms of such provisions of this Agreement will be deemed to be modified to reflect the governing law and/or venue required by Applicable Law; and (ii) Customer must, within thirty (30) calendar days of the commencement of its Service Term, notify OverWinTeam (directed to top@overwinteam.com) to identify the Applicable Laws that apply to Customer and the resulting modifications to the governing law and/or venue provisions of this Agreement, without prejudice to the statutory rights of consumers based in the EU.
  • ELECTRONIC SIGNATURE. Customer agrees that OverWinTeam may provide Customer with information regarding this Agreement by posting the information on Customer’s Account on the OverWinTeam website, sending Customer an email, or communicating through a support ticket, and that doing so satisfies any obligation OverWinTeam may have to provide the information in writing. Customer may have the right to withdraw consent and, when required by law, OverWinTeam will provide Customer with paper copies upon request. To receive, access, and retain the notices, Customer must have Internet access and a computer or device with a compatible browser; software capable of viewing PDF files; and the ability to print and download and store PDF files. Customer confirms that Customer is able to receive, access, and retain information on the website. Customer may withdraw consent or update contact information by notifying OverWinTeam through available support channels, including chat.
  • ENTIRE AGREEMENT. This Agreement sets forth the entire Agreement and understanding between OverWinTeam and Customer regarding the subject matter hereof and supersedes any previous or contemporaneous communications, representations, proposals, commitments, understandings, negotiations, discussions, understandings, or agreements (including non-disclosure or confidentiality agreements), whether oral or written, regarding the same subject matter. In the event of any conflict between these Terms of Service and an OverWinTeam Order Form, if applicable, the terms and conditions set forth in these Terms of Service will govern unless expressly amended in such OverWinTeam Order Form.
  • WAIVER. The failure by OverWinTeam at any time to enforce any of the provisions of this Agreement or any right or remedy available hereunder or at law or in equity, or to exercise any option herein provided, will not constitute a waiver of such provision, right, remedy or option or in any way affect the validity of this Agreement. The waiver of any default by OverWinTeam will not be deemed a continuing waiver but will apply solely to the instance to which such waiver is directed.
  • HEADINGS. The section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section or in any way affect such section.
  • NO JOINT VENTURE. This Agreement will not be construed as creating any partnership, joint venture or agency relationship between OverWinTeam and Customer.
  • ASSIGNMENT. OverWinTeam may freely assign, transfer and/or delegate its rights and obligations under this Agreement but Customer may not assign, transfer and/or delegate its rights and obligations under this Agreement without OverWinTeam’s prior written consent (not to be unreasonably withheld). Any attempted assignment or transfer in violation of this Section will be void. Subject to these limits, this Agreement will be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.
  • NO THIRD PARTY BENEFICIARIES. Other than as expressly provided in this Agreement, no third-party beneficiaries are intended or will be construed as created by this Agreement.
  • NOTICES. Any notice delivered by OverWinTeam to Customer under this Agreement will be delivered by email to the email address associated with Customer’s account or by posting at OverWinTeam Control Panel, except as otherwise set forth in this Agreement. Customer will direct legal notices or other correspondence, including any complaints, under this Agreement (including under any Additional Terms).
  • FORCE MAJEURE. OverWinTeam will not be liable for any delay or failure to perform any obligations under this Agreement due to any cause beyond OverWinTeam’s reasonable control, including acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications or other utility failures, earthquakes, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism or war. If such a force majeure event occurs and continues for a period of more than thirty (30) calendar days, either party may terminate this Agreement upon written notice to the other party.
  • EXPORT COMPLIANCE. Customer may not use or otherwise export or re-export the OverWinTeam Services or any related software or technology except as authorized by United States law and the Applicable Laws of the jurisdiction in which the OverWinTeam Services were obtained. In particular, but without limitation, the OverWinTeam Services may not be exported or re-exported (i) into any U.S. embargoed country or region, or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List, Entity List or Unverified List. By using the OverWinTeam Services, Customer represents and warrants that Customer is not located in any such country or on any such list. Customer also agrees that it will not use these products for any purposes prohibited by United States law. Customer is solely responsible for complying with all import, export, and re-export control laws, including but not limited to the Export Administration Regulations (“EAR”) and the International Traffic in Arms Regulations (“ITAR”). Customer is also solely responsible for any applicable license requirements in connection with the OverWinTeam Services, and OverWinTeam makes no representations or warranties regarding the suitability of the OverWinTeam Services for Customer’s compliance with the EAR and/or ITAR.

QUESTIONS

Any questions regarding this Agreement should be directed to OverWinTeam using any of the contact methods located.