IMPORTANT NOTICE REGARDING ARBITRATION: WHEN YOU AGREE TO THESE TERMS YOU ARE AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN YOU AND EDEN THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT. PLEASE REVIEW CAREFULLY SECTION 16 “DISPUTE RESOLUTION” BELOW FOR DETAILS REGARDING ARBITRATION.
Eden is willing to provide the Platform Services to you only upon the condition that you accept these Terms. By accessing or using the Platform or a Platform Service, you agree to these Terms. If you do not accept these Terms, then you may not access or use the Platform, or utilize the Platform Services. If you are accessing and using the Platform and the Platform Services on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms. In that case, “you” and “your” will refer to that company or other legal entity.
We may modify the Terms at any time, in our sole discretion. If we do so, we’ll let you know either by posting the modified Terms on the Site, App or through other communications. It’s important that you review the modified Terms because if you continue to use the Platform and the Platform Services after we’ve let you know that the Terms have been modified, you are indicating to us that you agree to be bound by the modified Terms. If you don’t agree to be bound by the modified Terms then you may no longer use the Platform and the Platform Services. Because the Platform and the Platform Services are evolving over time we may change or discontinue all or any part of the Platform or the Platform Services, at any time and without notice, at our sole discretion.
a. Platform Services. Subject to Customer’s compliance with these Terms, Eden will make the Platform Services available to Customer in accordance with order form(s) submitted by Customer and accepted by Eden and/or quotes mutually accepted or otherwise agreed to by the parties (collectively, an “Order Form”), during the term and for the number of “Authorized Locations” specified in the Order Form, solely for Customer’s internal business purposes. Each Order Form will be subject to the Terms contained herein and must be submitted through an Eden representative or through the Eden Platform.
b. Authorized Users. Customer’s employees, contractors, or agents who are authorized by Customer to use the Platform Services (each, an “Authorized User”) may access and use the Platform Services under Customer’s account. Each Authorized User must (i) create and use its own login credentials to access the Platform Services (i.e., Authorized Users may not share their login credentials), and (ii) agree to the Terms. Customer is responsible for all actions of its Authorized Users in connection with the Platform Services and their compliance with the Terms. Customer will, and will require all Authorized Users to, use all reasonable means to secure user names and passwords, hardware and software used to access the Subscription Services in accordance with customary security protocols, and will promptly notify Eden if Customer knows or reasonably suspects that any user name and/or password has been compromised.
c. Eden Data and Reports. By using the Platform Services, Customer will, to the extent specified in the applicable Order Form, have access to (a) Eden proprietary data models and data sets; (b) data that is curated or otherwise licensed from various sources, and organized, compiled and analyzed by Eden ((a) and (b) are collectively, the “Eden Data”), and (c) all of Customer’s advertising data identifiable to Customer or its customers and any other data that is provided by Customer hereunder (“Customer Data”), and may be accessed by Customer via the Platform Services (collectively, the “Data”). Customer may also access related reports as described in the applicable Order Form analyzing the Data (“Reports”).
d. Additional Services. From time to time, Eden may make available certain additional features or services to Customer (collectively, “Additional Services”). Provision of any such Additional Services by Eden will be subject to the execution of specific Order Form(s) or amendments to existing Order Forms. Unless otherwise agreed to by the parties in the applicable Order Form, Customer’s use of the Additional Services will be subject to these Terms.
e. Templates. Any example language or agreements offered in connection with the Platform Services (e.g., example confidentiality agreements or terms for visitors) are provided solely as examples for informational purposes. Eden is not providing legal, accounting, or business advice. Customer is solely responsible for ensuring that any language or agreement it deploys in connection with the Platform Services are appropriate and fit for Customer’s purposes.
a. Eden Platform Services and Data. As between the parties, Eden is the sole owner of all rights, title and interest in and to the Platform Services including without limitation, the Platform console, tools, methods, know-how, inventions, features, data models, and data architecture provided or otherwise developed by Eden including without limitation, in connection with the provision of Platform Services, the Eden Data, and Reports (except for any Customer Confidential Information or Customer Data contained in such Reports), and any updates, new versions, enhancements, modifications, adaptations, or improvements to the Platform and Platform Services. This includes without limitation, all worldwide patent rights (including patent applications and disclosures), copyright rights, trade secret rights, and other intellectual property rights recognized in any jurisdiction in the world (collectively, “Intellectual Property Rights”) therein. Eden hereby grants to Customer, during the Term, the limited revocable and non-transferable right to access and use the Platform Services, Eden Data, and Reports for Customer’s internal business purposes only as set forth in the Order Form.
b. Restrictions. Customer acknowledges that the Eden Materials (as defined below) contain trade secrets of Eden and its licensors, and, in order to protect such trade secrets and other interests that Eden has in the Platform, Platform Services and any rights Eden or its licensors have in and to the Eden Data and Reports (collectively, the “Eden Materials”), and all Intellectual Property Rights therein, Customer agrees not to reverse engineer, decompile or disassemble the Eden Materials or authorize a third party to do any of the foregoing. In addition, Customer will not and will not allow its Authorized Users or any third party to: (i) modify, distribute, sell, sublicense or otherwise transfer the Eden Materials; (ii) copy the Eden Materials except as strictly necessary to use the Eden in accordance with the terms of Section 4; (iii) make the functionality of the Eden Materials available to third-party users through any means, including, but not limited to, by uploading the Eden Materials to a network or file-sharing service or through any hosting, application services provider, service bureau, software-as-a-service (SaaS) or other use or configuration whereby the Eden Materials are used by, for the benefit of, or to provide a service on the computer equipment of a third party; (iv) use the Eden Materials, or any Eden technology or Confidential Information, to create, improve (directly or indirectly) or offer a substantially similar product or service, or build a competitive product; or (v) repackage, redistribute, or sell the Eden Materials as an OEM product. In addition, Customer will not share the Data (except the Customer Data that it owns) or Reports with any third party other than its third party service providers who may use the Data and Reports strictly for the purpose of providing services to, and for the sole benefit of, the Customer. Customer will reproduce all of Eden’s and its licensors’ copyright notices and any other proprietary rights notices on all copies of the Eden Materials that Eden makes available hereunder.
c. Grant of License by Customer in Customer Data. Customer shall own all right, title, and interest in and to the Customer Data and any output from Eden’s data models that is unique and otherwise identifiable to Customer. Customer hereby grants to Eden, during the term of these Terms, a worldwide, non-exclusive, irrevocable, perpetual, transferable, sublicensable, royalty-free license to use, copy, reproduce, modify, create derivative works, and process as necessary, the Customer Data, solely for the purpose of providing the Platform Services to Customer during the term of these Terms and thereafter, the right to use such Customer Data during the term and thereafter in an aggregated manner that is not identifiable to Customer (or its customers) for Eden’s internal business purposes including improving or adapting the Eden Materials or other current and future Eden products and services. Customer represents and warrants that (i) it has obtained and will obtain and continue to have, during the Term, all necessary rights, authority and licenses for the access to and use of the Customer Data (including any personal data provided or otherwise collected by Customer) as contemplated by these Terms and (ii) Eden’s use of the Customer Data in accordance with these Terms will not violate any applicable laws or regulations or cause a breach of any agreement or obligations between Customer and any third party.
We welcome feedback, comments and suggestions for improvements to the Platform and the Platform Services (“Feedback”). You can submit Feedback through the functionality available on the Platform or by emailing us at email@example.com. You grant to us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, transferable license, with the right to grant sublicenses, under any and all intellectual property rights that you own or control to copy, modify, create derivative works based upon and otherwise use the Feedback for any purpose.
a. Definition. “Confidential Information” means: (a) with respect to Eden, the Platform Services and any features produced by, and other information or documentation relating to, the Platform Services (including, without limitation, all Eden Materials and Customer Feedback), as well as any business or technical information of Eden, including, but not limited to, any information relating to product plans, designs, costs, product prices and names, finances, marketing plans, business opportunities, personnel, research, development or know-how that is (i) designated as “confidential” or “proprietary” or (ii) based on the nature of the information or its disclosure, a reasonable person would understand that the information is confidential. ; and (b) with respect to Customer, the Customer Data or any other non-public information that is designated as “confidential” or “proprietary” when disclosed.
b. Exclusions. The obligations in Section 6 will not apply to the extent any information: (a) is or becomes generally known to the public through no fault or breach of these Terms by the receiving party; (b) is rightfully known by the receiving party at the time of disclosure without an obligation of confidentiality; (c) is independently developed by the receiving party without access to or use of any Confidential Information that can be evidenced in writing; or (d) is rightfully obtained by the receiving party from a third party without restriction on use or disclosure. In addition, the receiving party may disclose such Confidential Information of the disclosing party that it is required to disclose pursuant to a court order or other judicial process provided, the receiving party shall first give the disclosing party prompt notice and only disclose the minimum amount of information required. Eden may further disclose under confidentiality the existence of these Terms to any of its investors, shareholders, or prospective investors or acquirers.
c. Restrictions. Neither party will use or disclose any Confidential Information, except as necessary for the performance of these Terms and each party will use all reasonable efforts to protect Confidential Information from unauthorized use or disclosure, but in no event less than the efforts that it ordinarily uses with respect to its own proprietary information of a similar nature and importance. Each party may disclose Confidential Information only to those of its employees who have a bona fide need to know such Confidential Information for the performance of these Terms; provided, that each such employee first executes a written agreement (or is otherwise already bound by a written agreement) that contains use and nondisclosure restrictions at least as protective of the Confidential Information as those set forth in these Terms. In addition, Customer may disclose Reports only to those of its services providers who have a bona fide need to know such Reports for the sole purpose of providing services to Customer; provided, that each such service provider first executes a written agreement (or is otherwise already bound by a written agreement) that contains use and nondisclosure restrictions at least as protective of the Reports as those set forth in these Terms. To the extent there is a breach of Confidential Information or Intellectual Property Rights, each party may seek injunctive relief in any court of competent jurisdiction without the posting of a bond or other similar requirement.
d. Publicity. Eden shall have the right to publicly announce the existence of a business relationship between the parties. During the term of these Terms, Eden may use Customer’s name, trademarks and logos (collectively, “Customer Marks”) on Eden’s website and marketing materials to identify Customer as Eden’s customer, provided that Eden shall use commercially reasonable efforts to adhere to any usage guidelines provided by Customer with respect to the Customer Marks.
a. Fees. In exchange for using the Platform Services hereunder, Customer will pay Eden the fees specified in the applicable Order Form in accordance with the terms set forth therein and these Terms (“Fees”) and any reasonable out of pocket expenses incurred or committed by Eden and approved by Customer in advance in writing. Any Additional Services shall be subject to additional fees set forth in the applicable Order Form.
c. Taxes. Unless otherwise stated, Eden’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with Customer’s purchases hereunder. If Eden has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, the appropriate amount will be invoiced to and paid by Customer. For clarity, Eden is solely responsible for taxes assessable against it based on Eden’s income or payroll.
d. Refunds. Eden has no obligation to provide refunds or credits relating to any Platform Services but may do so in Eden’s sole discretion.
a. Term. These Terms commence on the date on which you accept them or begin using a Platform Service and, unless terminated earlier, will continue in effect for as long as Eden is providing Platform Services to Customer pursuant to an Order Form. The term of each Order Form shall be as set forth therein, which shall automatically renew, unless terminated in accordance with the following policies:
b. Termination. Eden may terminate an Order Form immediately upon written notice to Customer in the event that (i) Eden discontinues the Platform Services or any of the Data or Reports (in which case Customer will be entitled to a refund of any pre-paid fees); or (ii) Customer fails to pay the Fees in a timely manner or (iii) Customer breaches Sections 4, 6 or infringes or otherwise violates Eden's Intellectual Property Rights in and to Eden Materials. In addition, either party may terminate an Order Forms upon notice if the other party materially breaches these Terms and fails to cure such breach within ten (10) business days following written notice specifying the breach, to the extent such breach is curable. If Customer terminates an Order Form in violation of this Section or Eden terminates an Order Form for breach, all unpaid Fees due under that Order Form shall be accelerated and paid immediately by Customer.
c. Effect of Termination. Upon any termination or expiration of an Order Form: (a) the rights and licenses granted to Customer under an Order Form will automatically terminate; (b) Customer will promptly deliver to Eden the Customer Feedback and any accrued but unpaid Fees and expenses incurred or committed to be incurred by Eden with Customer’s prior approval; (c) Eden will permit Customer to download a copy of the Customer Data for a period of thirty (30) days of the date of expiration or termination, and will have no obligation to retain any Customer Data thereafter; and (d) within five (5) days after any such termination or expiration, each party will, at its expense, return to the disclosing party (except for any archived electronic communications which may be stored confidentially) all Confidential Information in the receiving party’s possession or control.
d. Survival. The provisions of Sections 4, 5, 6, 7, 8(d), 12, 13, 14 (in accordance with its terms), 15, 16, and 17 will survive any termination or expiration of these Terms.
a. Service Providers. Our Platform enables Customers to book a Marketplace Service, and Eden will assign an applicable third-party vendor (“Service Provider” or collectively “Service Providers”) to perform the Marketplace Service. When you request to book a Marketplace Service, our relevant Service Providers will submit bids based on the description of the requested Marketplace Service. If you use a Service Provider, you agree that you do so at your own risk. Unless expressly stated to the contrary, we do not pre-qualify, review, or endorse Service Providers and we provide no representation or warranty as to the background, reputation, character, qualifications, skills, insurance, work product, services, advice, recommendations or quality of the Service Providers. If you use a Service Provider you acknowledge that you are doing so at your own risk and that we will not be party to any disputes between you and a Service Provider; you hereby release and hold us harmless from any claims arising from your use of the Service Provider or the Service Provider’s provision of the Marketplace Service.
b. Use of the Marketplace Services. In connection with each Marketplace Service, you will: (i) provide the selected Service Provider with access to your sites and facilities during normal business hours and as otherwise reasonably required by our Service Provider to perform the Marketplace Service; (ii) provide the Service Provider with such space and office support (including access to the internet as needed) as the Service Provider may reasonably request; and (iii) make available to the Service Provider any Customer Data required by the Service Provider to perform the Marketplace Service.
c. Holiday Policy: The following holiday policy applies unless otherwise stated on your Marketplace Services scope of work. On the days listed below, Marketplace Service will not be provided (unless otherwise requested). Because Eden bills on a flat monthly basis, your monthly Fee is inclusive of the holidays listed below and further credit will not be applied. If service is requested for a holiday an additional holiday rate may be charged, which will be communicated to you if applicable.
d. Additional Cancelled Days of Service. If you would like to cancel additional days of service outside of the holidays listed above please let your Eden representative know or reach out to firstname.lastname@example.org at least two (2) weeks in advance. Service day cancellations will be reviewed on a case-by-case basis to determine whether a credit will be applied.
e. Non-Solicitation. We have invested, and will continue to invest, great effort and substantial cost and resources in curating and maintaining the Marketplace Services, and sourcing, vetting and developing our relationships with Service Providers. Therefore, you agree that, during the term of these Terms and for a period of twelve (12) months thereafter, you will not directly or indirectly solicit the services of any Service Provider (or any employees, contractors, or other personnel of a Service Provider) who participated in the performance of Marketplace Services for your own benefit or for the benefit of any other person or entity. If any such unauthorized solicitation occurs and results in your hiring for employment, or engaging for services, one or more Service Providers (or any employees, contractors, or other personnel of the Service Provider), you agree to pay Eden liquidated damages in the amount of $10,000 for each such successful solicitation and hiring, in addition to any other remedies available to Eden at law.
You agree not to do any of the following:
Although we’re not obligated to monitor access to or use of the Platform or content or to review or edit any content, we have the right to do so for the purpose of operating the Platform, to ensure compliance with these Terms, or to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any content, including any Customer Data, you provide to use via the Platform, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any content to be objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Platform or the Platform Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
The Platform may contain links to third-party websites or resources. We provide these links only as a convenience and are not responsible for the content, products or services on or available from those websites or resources or links displayed on such sites. You acknowledge sole responsibility for, and assume all risks arising from, your use of any third-party websites or resources.
a. Mutual Representations and Warranties. Each party represents and warrants to the other party that (a) it has the legal power and authority to execute and deliver these Terms; and (b) the execution, delivery and performance of these Terms by it have been duly authorized by all necessary actions and do not violate its organizational documents.
b. Warranty Disclaimers. Customer acknowledges that the Platform, including the Software Services, Marketplace Services, and all Eden Materials, are being provided on an “AS IS” basis. EDEN MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THESE TERMS, THE PLATFORM SERVICES OR THE EDEN MATERIALS. WITHOUT LIMITING THE FOREGOING, EDEN DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. FURTHER, EDEN DOES NOT WARRANT OR GUARANTEE: (I) ANY RESULTS FROM THE USE OF THE PLATFORM SERVICES OR EDEN MATERIALS, (II) THAT THE EDEN MATERIALS WILL MEET CUSTOMER’S EXPECTATIONS, (III) THAT CUSTOMER’S MEDIA SPENDING BASED ON THE REPORTS WILL RESULT IN INCREASED VIEWING OR HAVE ANY EFFECT AT ALL, OR (IV) THAT THE PLATFORM SERVICES WILL BE ERROR FREE OR UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED. EDEN DISCLAIMS ALL LIABILITY ARISING FROM ALL THIRD PARTY APPLICATIONS OR DATA INCLUDING, ANY RESULTS OR REPORTS GENERATED FROM SUCH THIRD PARTY DATA OR CUSTOMER DATA.IN ADDITION, EDEN MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, REGARDING ANY SERVICE PROVIDER OR MARKETPLACE SERVICE. EDEN PROVIDES NO ENDORSEMENT, CERTIFICATION OR GUARANTEE ABOUT ANY MARKETPLACE SERVICE OR SERVICE PROVIDER, INCLUDING WHETHER THE SERVICE PROVIDER IS QUALIFIED OR SUITABLE. EDEN HAS NO CONTROL OVER AND DOES NOT GUARANTEE THE QUALITY OF ANY SERVICE PROVIDER OR MARKETPLACE SERVICE OR THE PERFORMANCE OR CONDUCT OF ANY USER, SERVICE PROVIDER, OR THIRD PARTY.
a. Eden Indemnity. Eden will indemnify, defend, and hold Customer and its directors and officers and successors and assigns harmless from any and all damages, losses or liabilities, (including reasonable attorney’s fees and costs) (“Losses”) in connection with any finally adjudicated suit, action, settlement, or judgement (“Claims”) brought against Customer to the extent that it is based upon a third party claim that (i) the Platform Services, as provided by Eden to Customer pursuant to these Terms infringes any Intellectual Property Rights of any third party, (ii) any violation of applicable federal, state, or local laws, rules or regulations by Eden; and (iii) any gross negligence or willful misconduct.
b. Customer Indemnity. Customer will indemnify, defend, and hold harmless Eden and its affiliates, investors, directors and officers, and their successors and assigns from any Losses arising from any Claims (including any regulatory investigation claims or third party subpoena) to the extent that it is based upon or arises from (i) any Customer Data, or other Customer materials or content as provided by or on behalf of Customer to Eden; (ii) Customer’s products or services; (iii) use of misuse of the Eden Materials including any breach of the rights licensed by Eden hereunder; (iv) any violation by Customer of any applicable federal, state or local laws, rules, or regulations; (v) arising out of or relating to Customer’s use of the marketplace and any Marketplace Services, and (vi) any gross negligence or willful misconduct of Customer.
c. Indemnity Procedure. The indemnifying party’s obligations under this Section 13 are reliant upon: (a) the indemnified party providing the indemnifying party with prompt written notice of such claim; (b) the indemnified party providing reasonable cooperation to the indemnifying party, at the indemnifying party’s expense, in the defense and settlement of such claim; and (c) the indemnifying party having sole authority to defend or settle such claim.
d. Exceptions and Exclusions. Eden's obligation to indemnify Customer pursuant to Section 13 will not apply to the extent any claim results from or is based on: (i) any combination, operation or use of the Platform Services with any product, system, device, method or data not provided by Eden, if such claim would have been avoided but for such combination, operation or use; (ii) modification of the Eden Materials by anyone other than Eden, if a claim would have been avoided but for such modification; or (iii) Customer’s use of the Eden Materials other than in compliance with these Terms or (iv) any open source or third party applications or components. If Customer’s use of the Platform Services is, or in Eden’s opinion is likely to be, enjoined due to the type of claim specified in Section 13, then Eden may at its sole option and expense: (i) replace or modify the Platform Services to make them non-infringing and of equivalent functionality; (ii) procure for Customer the right to continue using the Platform Services under the terms of these Terms; or (iii) terminate Customer’s rights and Eden’s obligation under these Terms with respect to such Platform Services and refund to Customer a pro-rata portion of the Fees paid for such Platform Services for the time Customer is unable to use the Platform Services. THE PROVISIONS OF THIS SECTION 13 SET FORTH EDEN’S SOLE AND EXCLUSIVE OBLIGATIONS, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF ANY KIND.
EXCEPT FOR BREACH OF CONFIDENTIALITY AND CUSTOMER’S PAYMENT OBLIGATIONS, IN NO EVENT WILL EDEN BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS) ARISING OUT OF OR IN CONNECTION WITH THESE TERMS INCLUDING THE USE OF OR INABILITY TO USE THE PLATFORM SERVICES OR EDEN MATERIALS OR FOR ANY ERROR OR DEFECT IN THE PLATFORM SERVICES OR EDEN MATERIALS, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT EDEN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
EDEN’S TOTAL AGGREGATE LIABILITY ARISING UNDER THESE TERMS, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL NOT EXCEED THE FEES PAID BY CUSTOMER TO EDEN IN THE PRIOR 6 MONTHS. THE PARTIES HAVE AGREED THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THESE TERMS IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
These Terms and any action related thereto will be governed by the Federal Arbitration Act, federal arbitration law, and the laws of the State of New York, without regard to its conflict of laws provisions. Except as otherwise expressly set forth in Section 16 “Dispute Resolution,” the exclusive jurisdiction for all Disputes (defined below) that you and Eden are not required to arbitrate will be the state and federal courts located in New York County, New York, and you and Eden each waive any objection to jurisdiction and venue in such courts.
Any dispute arising out of, relating to or concerning these Terms (or any document comprising these Terms) shall, as a condition precedent to any arbitration or court proceeding, be mediated by the parties. The parties shall mutually agree upon a mediator, and shall schedule and conduct mediation at a mutually convenient time and place. Each party shall bear its own costs, fees and expenses associated with such mediation, except that the parties agree to split equally the costs and expenses of the mediator and the conduct of the mediation itself. Any dispute which is not resolved by mediation and which arises out of, relates to or concerns these Terms may, be resolved by arbitration administered by the American Arbitration Association under its commercial arbitration rules (except that discovery shall be permitted in accordance with the Federal Rules of Civil Procedure), and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. All arbitration hearings shall be conducted in New York City, New York. Each party will bear its own costs, fees, and expenses associated with any arbitration, except that the parties agree to split equally the costs and expenses of the arbitrator or panel and the conduct of the arbitration itself. If for any reason the dispute is not resolved by arbitration, the parties agree that any civil action to decide such dispute shall be brought in the state and federal courts located in New York City, New York. Notwithstanding any provision to the contrary, Customer agrees to bring any claim or dispute against Eden (including payment disputes) within one year after the occurrence of the event giving rise to such dispute. The laws of the State of New York, excluding its conflicts of law rules, shall govern these Terms, and all disputes arising out of or relating thereto. CUSTOMER AND EDEN AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if the parties’ dispute is resolved through arbitration, the arbitrator may not consolidate any third party claims with either party’s claims, and may not otherwise preside over any form of a representative or class proceeding.
a. Entire Agreement. These Terms constitute the entire and exclusive understanding and agreement between Eden and you regarding the Platform Services, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Eden and you regarding the Platform Services. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
b. Assignment. You may not assign or transfer these Terms, by operation of law or otherwise, without Eden’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. Eden may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
c. Notices. Any notices or other communications provided by Eden under these Terms, including those regarding modifications to these Terms, will be given by Eden: (i) via email; or (ii) by posting to the Site or App. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
d. Waiver. Eden’s failure to enforce any right or provision of these Terms will not be considered a waiver of those rights. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Eden. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
e. Force Majeure. Except for Customer’s payment obligations, if either party fails to perform its obligations because of strikes, lockouts, labor disputes, embargoes, acts of God, inability to obtain labor or materials, governmental restrictions, regulation or controls, judicial orders, enemy or hostile governmental action, terrorist act, civil commotion, riot, fire, earthquake, epidemic, pandemic, or natural disaster, or any other cause (except financial causes) beyond the reasonable control of the party obligated to perform, then that party’s performance shall be excused for a period equal to the period of such event.
f. Export Control. Customer agrees to comply fully with all relevant export laws and regulations of the United States (“Export Laws”) to ensure that neither the Platform Services, nor any direct product thereof are: (a) exported or re-exported directly or indirectly in violation of Export Laws; or (b) used for any purposes prohibited by the Export Laws.
a. App License. If you comply with these Terms, Eden grants to you a limited non-exclusive, non-transferable license, with no right to sublicense, to download and install the App on your personal computers, mobile handsets, tablets, wearable devices, and/or other devices and to run the App solely for your own personal non-commercial purposes. Except as expressly permitted in these Terms, you may not: (i) copy, modify or create derivative works based on the App; (ii) distribute, transfer, sublicense, lease, lend or rent the App to any third party; (iii) reverse engineer, decompile or disassemble the App (unless applicable law permits, despite this limitation); or (iv) make the functionality of the App available to multiple users through any means.
b. Additional Information: Apple App Store. This Section 19(b) applies to any App that you acquire from the Apple App Store or use on an iOS device. Apple has no obligation to furnish any maintenance and support services with respect to the App. In the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will refund the App purchase price to you (if applicable) and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App. Apple is not responsible for addressing any claims by you or any third party relating to the App or your possession and use of it, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third-party claim that your possession and use of the App infringe that third party's intellectual property rights. Apple and its subsidiaries, are third-party beneficiaries of these Terms, and upon your acceptance of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a terrorist-supporting country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You must also comply with any applicable third-party terms of service when using the App.
If you have any questions about these Terms or the Platform Services please contact Eden at email@example.com.