Effective as of February 23, 2023
California Privacy (Section 5)
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PLEASE CLICK ON THE COOKIE MANAGEMENT TOOL (SOMETIMES VISIBLE AS A “YOUR PRIVACY CHOICES” LINK) ON THE FOOTER OF THE WEBSITE TO SET YOUR PREFERENCES AND OPT-OUT WITH RESPECT TO HOW OUR SITE USES NON-ESSENTIAL COOKIES, PIXELS, AND TAGS FOR TARGETED ADVERTISING, MARKETING, ANALYTICS, AND SIMILAR PURPOSES.
1. WHAT ARE COOKIES AND OTHER ONLINE TRACKING TECHNOLOGIES?
Cookies are small files that are downloaded to your device when you visit a website. The cookie then sends information back to the originating website on each subsequent visit, or to another website that recognizes that cookie. Other types of tracking technologies work similarly to cookies and place small data files on your devices or monitor your website activity to enable us to collect information about how you use our Sites. Accordingly, Cookies and Other Tracking Technologies allow our Sites to recognize your device and track your activities and preferences, thereby allowing you to navigate between pages efficiently and to generally improve the user experience. The information provided below about cookies also applies to the other tracking technologies referenced above (i.e., web beacons, pixels, clear gifs, and other similar technologies). You can find more information about cookies at www.allaboutcookies.org.
Cookies are often categorized by function. We use four types of cookies by function on our Sites:
Name: Essential Cookies
Description: These are cookies that are strictly necessary for the functioning of a website or for performing services that an individual user has requested. For instance, these cookies are necessary to allow us to operate our Sites so you may access them as you have requested. These cookies let us recognize that you have created an account and have logged into that account to access the Sites. They also include cookies that enable us to remember your previous actions within the same browsing session.
Name: Analytical/Performance Cookies
Description: These cookies collect information and statistics about how individuals use the Sites (e.g., which webpages or other portions of the Sites visitors go to most often). These cookies are used to improve how the Sites function.
Name: Functional Cookies
Description: These cookies allow the Sites to remember choices users make and to provide enhanced, personalized features. For example, within our Sites, these cookies remember users’ language preferences.
Name: Targeting/Advertising Cookies
Description: These cookies are used to deliver advertisements relevant to a specific user of the Sites. They remember that a user has visited a website and share this information with other organizations such as advertising vendors.
Cookies can also be categorized by how long they remain on your device and by who puts the cookie there. There are four broad categories of duration and placement cookies that we use on the Sites:
Name: Persistent Cookies
Description: Persistent cookies remain on your device until deleted manually or automatically.
Name: Session Cookies
Description: Session cookies remain on your device until you close your browser, at which time they are automatically deleted.
Name: First-Party Cookies
Description: These cookies are placed by the party operating the website or service. For example, any cookies we place on your computer from our Sites are first-party cookies.
Name: Third-Party Cookies
Description: These cookies are placed on a website or service by a party that does not own or operate the website or service.
Description: This cookie is set by ActiveCampaign, and is a marketing cookie to send newsletters and to follow up leads via contact forms.
Duration: 1 month
Description: Cookie set by the Woopra Analytics software used to measure site performance
Duration: 2 years
Description: The _ga cookie, installed by Google Analytics, calculates visitor, session and campaign data and also keeps track of site usage for the site's analytics report. The cookie stores information anonymously and assigns a randomly generated number to recognize unique visitors.
Duration: 2 years
Description: This cookie is installed by Google Analytics.
Duration: 2 years
Description: This cookie is set by HubSpot to keep track of sessions. It is used to determine if HubSpot should increment the session number and timestamps in the __hstc cookie.
Duration: 30 minutes
Description: This cookie is set by HubSpot to determine when HubSpot changes the session cookie, and to determine if the visitor has restarted their browser.
Description: This cookie is set by HubSpot to identify visitors.
Duration: 6 months
Description: This cookie is set by HubSpot. It contains the domain, utk, initial timestamp (first visit), last timestamp (last visit), current timestamp (this visit), and session number (increments for each subsequent session).
Duration: 6 months
Description: Installed by Google Analytics, _gid cookie stores information on how visitors use a website, while also creating analytics report of the website's performance. Some of the data that are collected include the number of visitors, their source, and the pages they visit anonymously.
Duration: 1 day
Description: This cookie is set by Facebook to display advertisements when either on Facebook or on a digital platform powered by Facebook advertising, after visiting the website.
Duration: 3 months
Description: Cloudflare sets this cookie to distinguish users.
Description: This cookie, set by Cloudflare, is used to support Cloudflare Bot Management
Duration: 30 minutes
Description: A variation of the _gat cookie set by Google Analytics and Google Tag Manager to allow website owners to track visitor behavior and measure site performance. The pattern element in the name contains the unique identity number of the account or website it relates to.
Duration: 1 minute
Description: Cloudflare sets this cookie to identify trusted web traffic.
Description: Squarespace sets this cookie to prevent cross-site request forgery (CSRF).
3. HOW DO WE USE AND SHARE INFORMATION?
4. REJECTING COOKIES AND YOUR OPTIONS
PLEASE CLICK ON THE COOKIE MANAGEMENT TOOL (SOMETIMES VISIBLE AS A “DO NOT SELL/SHARE MY PERSONAL INFORMATION” LINK) ON THE FOOTER OF THE WEBSITE TO SET YOUR PREFERENCES AND OPT OUT WITH RESPECT TO HOW OUR WEBSITE USES NON-ESSENTIAL COOKIES, PIXELS, AND TAGS FOR TARGETED ADVERTISING, MARKETING, ANALYTICS, AND SIMILAR PURPOSES.
You can stop cookies from being downloaded on your device by selecting the appropriate settings on your browser. Most browsers will tell you how to stop accepting new cookies, how to be notified when you receive a new cookie, and how to disable existing cookies. You can find out how to do this for your particular browser by clicking “help” on your browser's menu or by visiting www.allaboutcookies.org. Please note, however, that without cookies you may not be able to access or take full advantage of the Site. Most browsers allow users to use a “private mode” by which cookies are deleted after your website visit. Please read the help section of your browser to learn more about how to activate the “private mode.” You could still visit our Site if your browser is in “private mode”; however, the user experience may not be optimal, and some features may not work.
Click here to learn more about the “Private Browsing” setting and managing cookie settings in Firefox.
Click here to learn more about “Incognito” and managing cookie settings in Chrome.
Click here to learn more about “InPrivate” and managing cookie settings in Internet Explorer.
Click here to learn more about “Private Browsing” and managing cookie settings in Safari.
If you want to remove previously stored cookies, you can manually delete the cookies at any time. However, this will not prevent the Site from placing further cookies on your device unless and until you adjust your browser setting as described above.
More Information. You can find more information about cookies, behavioral advertising, and online privacy at www.allaboutcookies.org. For some of our service providers that participate in the Digital Advertising Alliance (DAA), you can exercise your choice to opt out of interest-based advertising at http://optout.aboutads.info. You may also opt out of receiving interest-based ads from many third-party websites and applications through the Network Advertising Initiative’s (NAI) Opt Out Tool, which is available at http://www.networkadvertising.org/choices. Certain types of mobile devices have an identifier that provides organizations with the ability to serve targeted advertising directly to a specific mobile device, and you may (depending on the device) be able to limit advertising, reset the advertising identifier, and turn off your device’s tracking features within your device’s settings. For more information see http://youradchoices.com/appchoices.
6. Fees and Payments
(a) You will pay Us the Fees in accordance with the Payment Terms specified in the Service Order Form, and We shall have the unfettered right to deny and prevent You and any of Your Authorized Users access and use the Services if any undisputed Fees remain unpaid after they have become due. (b) Fees and Taxes. You shall pay the fees (the “Fees”) detailed in the corresponding Service Order Form to us in accordance with the Payment Terms. The Subscription Fee may change from time-to-time, and We will provide notice of any change thirty (30) days in advance of the date upon 20211101 5 which notice of non-renewal is due. The Fees do not include any sales, use or other taxes that may be applicable. You are responsible for the payment of all applicable sales, use, and other taxes, except for taxes on Our income.
(b) Payment Terms. Payment of the Fees shall be subject to the following terms (the “Payment Terms”):
(i) We will invoice You monthly for the Fees, except as otherwise noted below under “Fees” in a corresponding Service Order Form;
(ii) You will pay each invoice in full within thirty (30) days after the invoice date;
(iii) We will send invoices to the mailing address You provide on the Service Order Form;
(iv) You shall pay interest on all late payments at the lesser of the rate of 1.5% per month or, if less than 1.5% per month, the highest rate permissible under applicable law per month, compounded monthly, and You shall reimburse us for all reasonable costs incurred in collecting any late payments, including, without limitation, reasonable attorneys' fees; and,
(v) All amounts owed by You and payable to us shall be paid to us in full and without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason.
7. Term & Termination
(a) Term. The initial term of this Agreement shall begin on the Effective Date and shall continue from the Effective Date for a period specified in the Service Order Form (the “Initial Term”). Following the Initial Term, this Agreement shall automatically renew for successive periods as specified in the Service Order Form (each being a “Renewal Term”) until one Party provides the other Party written notice of nonrenewal at least thirty (30) calendar days prior to the expiration of the Initial Term or any Renewal Term. “Term,” when used alone, shall mean and collectively include both the Initial Term and the any Renewal Term(s). The Initial Term and each Renewal Term may also be referred to herein as a “Subscription Term.”
(b) Termination for Cause. If either Party materially breaches this Agreement and fails to cure such breach within thirty (30) days of receiving written notice thereof from the other Party, the other Party shall have the right to terminate this Agreement for cause as of a date specified in such notice. For purposes hereof, two (2) successive failures of You to make payments when due shall be deemed a “material breach” hereof.
(c) Termination for Convenience. You may, within an initial term extending from the Effective Date (the “Trial Term”) as may be set forth in the Service Order Form, terminate this Agreement without cause by providing Us written notice of such termination by the end of the Trial Term, and within thirty (30) calendar days of receipt of such notice, We shall fully refund any Fees as may be specified in the Service Order Form. If provided in the Order Form, either Party may terminate at any other time with prior written notice thereof to the other Party within a designated period (“Termination Notice Period”).
(d) Payments Upon Termination. Upon the expiration or termination of this Agreement for any reason, You shall pay to us all amounts due and payable hereunder, including, without limitation, the Fees.
(e) Return of Materials. Upon expiration or termination of this Agreement, each Party shall promptly return to the other Party, or cause the destruction of, the other Party’s Confidential Information. Neither 20211101 6 Party shall be required to destroy any such Confidential Information, data, programs or materials that are maintained on such Party’s back up data systems nor such Confidential Information that the Party is instructed by legal counsel to maintain.
8. Representations & Warranties
(a) Mutual. You and Us each represent and warrant that: (1) it is a business duly formed, validly existing, and in good standing under the laws of its state of formation; (2) it has all requisite power, financial capacity, and authority to execute, deliver, and perform its obligations under this Agreement; (3) it shall comply with all applicable federal, state, local, international, or other laws and regulations applicable to the performance by it of its obligations under this Agreement and shall obtain all applicable permits, authorizations, permissions, and licenses required of it in connection with its obligations under this Agreement, which includes the sharing of data.
(b) By Us. We warrant that: (1) the Services will be performed in a professional, workmanlike and timely manner, subject to Section 3.2; and (2) We will not knowingly infringe any third-party United States copyright, patent, or other intellectual property right.
THE WARRANTIES MADE BY SERVICE PROVIDER IN THIS SECTION 8 ARE THE ONLY WARRANTIES MADE BY SERVICE PROVIDER, AND SERVICE PROVIDER HEREBY DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THOSE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SERVICE PROVIDER DOES NOT WARRANT THAT THE SERVICES WILL OPERATE AT ALL TIMES, UNINTERRUPTED, OR ERROR-FREE.
9. Confidential Information; Proprietary Rights
(a) Non-Disclosure of Confidential Information. Each Party (as a “Discloser”) may disclose or make available to the other Party (as a “Recipient”) information that is confidential or proprietary and that is to remain confidential and not intended to be disclosed to any third party (“Confidential Information”), which includes any Your Data (as a substantial whole) and any Personal Information. Each Party agrees to maintain in confidence and not disclose or sell the other Party’s Confidential Information, except that a Recipient may share Confidential Information with its employees, directors, agents, consultants, contractors, consultants, service providers, and Affiliates for any purpose or use permitted in this Agreement, provided they have agreed in writing to keep such information confidential. Each Recipient agrees to safeguard the confidentiality of the Discloser’s Confidential Information with at least the same degree of care as the Recipient would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care in protecting Confidential Information and in preventing any unauthorized use or disclosure of Confidential Information. Discloser agrees to only share information that it has the lawful right to share. The obligations of confidentiality and nondisclosure set forth herein shall not apply to information that: (a) was publicly known at the time of disclosure; (b) becomes publicly known through no fault of Recipient; (c) was known to Recipient without restriction before receipt from Discloser; (d) is rightfully received by Recipient from a third party without a duty of confidentiality; or (e) is independently developed by Recipient without reliance on Discloser’s Confidential Information. A Recipient may disclose Confidential Information when compelled to do so by law if it gives the Discloser reasonable prior written notice and an opportunity to limit or prevent such compelled disclosure. We may also transfer Confidential Information to an acquiring third party as part a merger, divestiture, restructuring, reorganization, dissolution, or other sale or transfer of some or all of our assets, whether as a going concern or as part of bankruptcy, liquidation, or similar proceeding. The provisions of this Section shall survive the termination or expiration of this Agreement for a period of five (5) years. 20211101 7
(b) Proprietary Rights. All software and related processes, instructions, methods, and techniques that have been previously developed or obtained by Us for performing the Services (collectively, the “Pre-existing Materials”) shall remain the sole and exclusive property of Lineup. Except as otherwise provided in this Agreement, neither Party grants to the other Party any ownership in or license to the other Party’s Confidential Information or Your Data. The provisions of this Section shall indefinitely survive the termination of this Agreement.
10. Indemnification – for Both of Us
(a) General Indemnity. Each Party agrees to indemnify, defend, and hold the other Party and its officers, directors, agents, employees, and Affiliates (each, an “Indemnitee” and collectively, the “Indemnitees”) harmless from and against any and all liabilities, damages, losses, expenses, claims, demands, suits, fines, and judgments (collectively “Claims”), including reasonable attorneys' fees, costs, and expenses incidental thereto, which may be suffered by, accrued against, charged to, or recoverable from any Indemnitee, by reason of any Claim arising out of or relating to any grossly negligent act or omission or willful misconduct of the indemnifying Party, its officers, directors, agents, employees, and Affiliates during the Term of this Agreement, including, without limitation, Claims arising out of or relating to: (a) actual or alleged infringement of a third party’s patent, copyright, trademark, trade secret or other intellectual property rights, or (b) violation of any applicable law or regulation, including any data privacy law or regulation; provided, however, that the foregoing indemnity shall not apply to the extent that the applicable Claim resulted from the acts or omissions of an Indemnitee. Notwithstanding anything herein to the contrary, obligations to indemnify an Indemnitee for breach of the provisions of the Sections herein that specifically survive termination of this Agreement shall also survive the termination of this Agreement.
(b) Promptly after receipt of a threat of any action, or a notice of the commencement, or filing of any action against the Indemnitee, the Indemnitee shall give notice to the other Party.
11. Limitation of Liability
NOT WITHSTANDING ANY OTHER PROVISION, NO PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, AND/OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST BUSINESS, PROFITS, DATA, OR USE OF ANY SERVICE, INCURRED BYzEITHER PARTY OR ANY THIRD PARTY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. A PARTY SHALL BE LIABLE TO THE OTHER ONLY FOR ANY DIRECT DAMAGES TO THE EXTENT ARISING OUT OF OR RELATING TO ITS PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT; PROVIDED, HOWEVER, THAT THE LIABILITY OF A PARTY, WHETHER BASED ON AN ACTION OR CLAIM IN CONTRACT, EQUITY, NEGLIGENCE, TORT, OR OTHERWISE FOR ALL EVENTS, ACTS, OR OMISSIONS UNDER THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID OR PAYABLE UNDER THIS AGREEMENT FOR THE TWELVE (12) MONTH PERIOD PRECEDING THE CLAIM OR ACTION, PROVIDED THAT THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO DAMAGES ARISING OUT OF A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS IN THIS AGREEMENT, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR FRAUD, OR TO ANY THIRD-PARTY CLAIMS FOR WHICH A PARTY OWES THE OTHER A DUTY OF INDEMNITY HEREUNDER.
This Section 11 shall indefinitely survive the expiration or termination of this Agreement.
(a) Relationship of the Parties; No Assignment. Each Party is an independent contractor with no authority to contract for or bind the other Party. This Agreement does not create any agency or partnership relationship and is not assignable or transferable unless otherwise agreed to in writing by the Parties.
(b) Governing Law; Venue. This Agreement is governed by the laws of the State of Ohio, excluding its conflict-of-laws principles. The exclusive venue for any dispute relating to this agreement shall be any state or Federal court located in Cuyahoga County, Ohio.
(c) Force Majeure. Neither Party will be in default or liable for delays and shall be excused from performance for any period during which, and to the extent that, such Party or any agent, contractor, or service provider of such Party is prevented from performing any obligation or Service hereunder, in whole or in part, as a result of causes beyond its reasonable control and without its fault or negligence, including without limitation, acts of God, strikes, lockouts, riots, acts of terrorism or war, epidemics, communication line failures, and power failures.
(d) Notices. Any notice given pursuant to this Agreement shall be in writing (which includes email and facsimile) and shall be given by personal service, electronic mail, facsimile, or by overnight courier (e.g., FedEx or UPS) to the addresses provided herein.
(e) Section Headings. Section headings are for reference purposes only, and do not affect the construction, interpretation, or meaning of any provision of this Agreement.
(f) Miscellaneous. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same agreement. The Parties agree that a facsimile signature or signature delivered by other electronic delivery (e.g., by PDF) will substitute for and have the same legal effect as the original signature. The failure of any Party to require performance by the other Party of any provision will in no way affect that Party's right to enforce such provisions, and the waiver by any Party of any breach of any provision of this Agreement will not be taken or held to be a waiver of any further breach of the same provision. This Agreement constitutes the entire agreement between the Parties and supersedes any and all previous representations, understandings, or agreements between You and Us as to the subject matter hereof. If any part of this Agreement shall be held to be unenforceable, the rest of the Agreement will nevertheless remain in full force and effect. Survival. All provisions of this Agreement that by their nature extend beyond the expiration or termination of this Agreement, such as, without limitation, those concerning defense and indemnification, confidential information and intellectual property rights, shall survive and remain enforceable and shall apply to either Party’s successors and permitted assigns.
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