April 19th, 2012
Your Consent to Other Agreements
Ownership of this Site and its Content
This Site, including all its Content are protected under applicable intellectual property and other laws, including the laws of the United States and other countries. All Content and intellectual property rights therein are the property of Napkin Labs or the material is included with the permission of the rights owner and is protected pursuant to applicable copyright and trademark laws.
The presence of any Content on this Site does not constitute a waiver of any right in such Content. You do not acquire ownership rights to any such Content viewed through this Site. Except as otherwise provided herein, none of this Content may be used, copied, reproduced, distributed, republished, downloaded, modified, displayed, posted or transmitted in any form or by any means, including electronic, mechanical, photocopying, recording, or otherwise, without our express prior written permission.
Permission is hereby granted to the extent necessary to lawfully access and use this Site and to display, download, or print portions of this Site on a temporary basis and for your personal use only, provided that you (i) do not modify the Content; (ii) you retain any and all copyright and other proprietary notices contained in the Content; and (iii) you do not copy or post the Content on any network computer.
The Napkin Labs names and logos, all product and service names, all graphics, all button icons, and all trademarks, service marks and logos appearing within this Site, unless otherwise noted, are trademarks (whether registered or not), service marks and/or trade dress of Napkin Labs (the “Napkin Labs Marks”). All other trademarks, product names, company names, logos, service marks and/or trade dress mentioned, displayed, cited or otherwise indicated within this Site are the property of their respective owners. You are not authorized to display or use the Napkin Labs Marks in any manner without our prior written permission. You are not authorized to display or use trademarks, product names, company names, logos, service marks and/or trade dress of other owners featured within this Site without the prior written permission of such owners. The use or misuse of the Napkin Labs Marks or other trademarks, product names, company names, logos, service marks and/or trade dress or any other materials contained herein, except as permitted herein, is expressly prohibited.
Responsibility for User-Generated Content Posted on or Through this Site
You are responsible for User-Generated Content that you post. Under no circumstances will we be liable in any way for any User-Generated Content.
Because we do not control the User-Generated Content posted on or through this Site, we cannot and do not warrant or guarantee the truthfulness, integrity, suitability, or quality of that User-Generated Content. You also agree and understand that by accessing this Site, you may encounter User-Generated Content that you may consider to be objectionable. We have no responsibility for any User-Generated Content, including any errors or omissions therein. We are not liable for any loss or damage of any kind you may claim was incurred as a result of the use of any User-Generated Content posted, emailed, transmitted or otherwise made available on or through this Site. The User-Generated Content posted on or through this Site expresses the personal opinions of the individuals who posted it and does not necessarily reflect the views of Napkin Labs or any person or entity associated with Napkin Labs.
You own User-Generated Content, but we may use it. You own the copyright in any original User-Generated Content you post. We do not claim any copyrights in User-Generated Content. However, by using this Site you are granting us and our subsidiaries, affiliates, successors and assigns, a nonexclusive, fully paid, worldwide, perpetual, irrevocable, royalty-free, transferable license (with the right to sublicense through unlimited levels of sublicensees) to use, copy, modify, distribute, publicly display and perform, publish, transmit, remove, retain, repurpose, and commercialize User-Generated Content you post in any and all media or form of communication whether now existing or hereafter developed, without obtaining additional consent, without restriction, notification, or attribution, and without compensating you in any way, and to authorize others to do the same. For this reason, we ask that you not post any User-Generated Content that you do not wish to license to us, including any photographs, videos, confidential information, or product ideas.
We may disclose and/or remove User-Generated Content. Napkin Labs has certain rights. We have the right (but do not assume the obligation) to:
monitor all User-Generated Content;
require that you avoid certain subjects;
remove or block any User-Generated Content at any time without notice at our sole and absolute discretion;
terminate your access to and use of this Site, or to modify, edit or block your transmissions thereto in our sole discretion.
You agree that our exercise of such discretion shall not render us the owners of User-Generated Content you post, and that you will retain ownership thereof as described above.
upload, post, transmit or otherwise make available
any User-Generated Content that is unlawful, harmful, hateful, threatening, abusive, harassing, libelous, defamatory, obscene, vulgar, pornographic, profane, racially disparaging, indecent, or invasive of another’s privacy;
any User-Generated Content that constitutes or encourages activity illegal under criminal or civil law;
any User-Generated Content that is false, misleading, or fraudulent;
any User-Generated Content that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information or proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
any User-Generated Content that violates or infringes upon the rights of others, including User-Generated Content which violates the patent rights, copyrights, trademark rights, privacy rights, publicity rights, trade secret rights, confidentiality rights, contract rights, or any other rights of any individual, living or deceased, or any legal entity;
any User-Generated Content that contains the image, name or likeness of anyone other than yourself, unless (i) that person is at least eighteen years old and you have first obtained his/her express permission or (ii) that person is under eighteen years old but you are his/her parent or legal guardian;
any request for or solicitation of any personal or private information from any individual;
any request for or solicitation of money, goods, or services for private gain;
any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; or
any User-Generated Content that contains advertising, promotions or marketing, or which otherwise has a commercial purpose;
impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity; or
violate any local, state, national or international law, rule or regulation.
Removal of Content
Violation of copyrights. Napkin Labs does not knowingly violate or permit others to violate the copyrights of others. We will promptly remove or disable access to material that we know is infringing or if we become aware of circumstances from which infringing activity is apparent.
Although we do not claim ownership of User-Generated Content you post using this Site, the Feedback you provide to us through this Site will be and remain our exclusive property. Your submission of Feedback will constitute an assignment to us of all worldwide rights, title and interests in your Feedback, including all copyrights and other intellectual property rights in your Feedback. We will be entitled to reduce to practice, exploit, make, use, copy, disclose, display or perform publicly, distribute, improve and modify any Feedback you submit for any purpose whatsoever, without restriction and without compensating you in any way. For this reason, we ask that you not send us any Feedback that you do not wish to assign to us.
In consideration of your use of this Site, you agree that to the extent you provide Personal Information to Napkin Labs it will be true, accurate, current, and complete and that you will update all Personal Information as necessary.
You agree to use this Site in a manner consistent with any and all applicable rules and regulations. You agree not to upload or transmit through this Site any computer viruses, trojan horses, worms or anything else designed to interfere with, interrupt or disrupt the normal operating procedures of a computer. Any unauthorized modification, tampering or change of any information, or any interference with the availability of or access to this Site is strictly prohibited. We reserve all rights and remedies available to us.
WE MAKE NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THIS SITE OR ITS CONTENT, OR ANY PRODUCT OR SERVICE AVAILABLE ON OR PROMOTED THROUGH THIS SITE. THIS SITE AND ALL OF ITS CONTENT (INCLUDING USER-GENERATED CONTENT) ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS, WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY LAW, NAPKIN LABS, ITS AFFILIATES, AND THEIR SERVICE PROVIDERS AND LICENSORS DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, ARISING BY STATUTE, CUSTOM, COURSE OF DEALING, COURSE OF PERFORMANCE OR IN ANY OTHER WAY, WITH RESPECT TO THIS SITE, ITS CONTENT, AND ANY PRODUCTS OR SERVICES AVAILABLE OR PROMOTED THROUGH THIS SITE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NAPKIN LABS, ITS AFFILIATES, AND THEIR SERVICE PROVIDERS AND LICENSORS DISCLAIM ALL REPRESENTATIONS AND WARRANTIES (A) OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; (B) RELATING TO THE SECURITY OF THIS SITE; (C) THAT THE CONTENT OF THIS SITE IS ACCURATE, COMPLETE OR CURRENT; OR (D) THAT THIS SITE WILL OPERATE SECURELY OR WITHOUT INTERRUPTION OR ERROR.
WE DO NOT REPRESENT OR WARRANT THAT THIS SITE, ITS SERVERS, OR ANY TRANSMISSIONS SENT FROM US OR THROUGH THIS SITE WILL BE FREE OF ANY HARMFUL COMPONENTS (INCLUDING VIRUSES).
APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OF CERTAIN WARRANTIES, SO ALL OR PART OF THIS DISCLAIMER OF WARRANTIES MAY NOT APPLY TO YOU.
LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS WE, ON BEHALF OF OUR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS, LICENSORS AND SERVICE PROVIDERS, EXCLUDE AND DISCLAIM LIABILITY FOR ANY LOSSES AND EXPENSES OF WHATEVER NATURE AND HOWSOEVER ARISING INCLUDING ANY DIRECT, INDIRECT, GENERAL, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES; LOSS OF USE; LOSS OF DATA; LOSS CAUSED BY A VIRUS; LOSS OF INCOME OR PROFIT; LOSS OF OR DAMAGE TO PROPERTY; CLAIMS OF THIRD PARTIES; OR OTHER LOSSES OF ANY KIND OR CHARACTER, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES, ARISING OUT OF OR IN CONNECTION WITH THE USE OF THIS SITE. YOU ASSUME TOTAL RESPONSIBILITY FOR ESTABLISHING SUCH PROCEDURES FOR DATA BACK UP AND VIRUS CHECKING AS YOU CONSIDER NECESSARY. THIS LIMITATION OF LIABILITY APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER BASIS.
IF ANY PART OF THIS LIMITATION ON LIABILITY IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, THEN THE AGGREGATE LIABILITY OF THE RELEASED PARTIES FOR LIABILITIES THAT OTHERWISE WOULD HAVE BEEN LIMITED SHALL NOT EXCEED TEN DOLLARS ($10.00).
Links to Third-Party Websites
Modification and Discontinuation
We reserve the right at any time and from time-to-time to modify, edit, delete, suspend or discontinue, temporarily or permanently this Site (or any portion thereof) and/or the information, materials, products and/or services available through this Site (or any part thereof) with or without notice. You agree that we shall not be liable to you or to any third party for any such modification, editing, deletion, suspension or discontinuance of this Site.
Governing Law, Jurisdiction and Venue
The term “Content” refers to all of the software and code comprising or used to operate this Site, and all of the text, photographs, images, illustrations, graphics, sound recordings, video and audio-video clips, and other materials available on this Site, including User-Generated Content.
The term “Feedback” refers to the Content you post on or through this Site that is specifically about how we can improve this Site and the products and services we make available through this Site.
The term “including” means “including, but not limited to.”
The term “Personal Information” refers to information that identifies you personally, alone or in combination with other information available to us. Examples of Personal Information include your name, address, and email address.
The term “Site” refers to the website located at www.napkinlabs.com and owned by Napkin Lab, Inc.
The terms “Napkin Labs,” “we,” “us,” and “our” refer to Napkin Labs, Inc.
The term “User-Generated Content” refers to all of the text, photographs, images, illustrations, graphics, sound recordings, video, audio-video clips, and other Content that you post on or through this Site and that does not constitute Feedback. One way that User-Generated Content differs from other information you provide to us is that, once submitted, User-Generated Content is made available instantaneously to others. Examples of User-Generated Content include comments posted beneath blog posts available on this Site.
Napkin Labs, Inc.
1877 Broadway, Suite 701
Boulder, CO 80304
This website, http://www.napkinlabs.com/, is owned and operated by Napkin Labs, Inc.
If you have any questions about this Policy or our privacy practices, please contact us using the following information:
Napkin Labs, Inc.
1877 Broadway, Suite 701
Boulder, CO 80304
April 19, 2012
Please take a few minutes to review this Policy before using this Site. By using this Site you are consenting to the collection, use, and disclosure of your Personal Information as set forth in this Policy. If you do not agree to be bound by this Policy, you may not access or use this Site.
This Policy may be supplemented or amended from time to time by “privacy notices” posted on this Site. These Privacy Notices provide a level of detail that we cannot provide in this more general description of our privacy practices. For example, certain pages of this Site may contain Privacy Notices providing details about the Personal Information we collect on those pages, why we need that information, and choices you may have about the ways we use that information.
When you sign up to use a special feature of this Site, you may be asked to agree to special terms governing your use of the special feature. In such cases, you may be asked to expressly consent to the special terms, for example, by checking a box or clicking on a button marked “I agree.” This type of agreement is known as a “click-through” agreement. If any of the terms of the click-through agreement are different than the terms of this Policy, the terms of the click-through agreement will supplement or amend this Policy, but only with respect to the matters governed by the “click-through agreement.”
When you sign up to use our products or services, you may also be asked to agree to special terms in a “click-through agreement” and in any such instance, the terms of the “click-through agreement” (instead of this Policy) will govern and control with respect to your use of the products or services.
Types of Information We Collect
Information You Volunteer. Napkin Labs collects the Personal Information you knowingly and voluntarily provide when you use this Site. For example, we collect the Personal Information you submit when you contact us with questions, sign up to receive a newsletter or apply for a job at Napkin Labs.
Information Sent to Us by Your Web Browser. We collect information that is sent to us automatically by your Web browser. This information typically includes your IP address, the identity of your Internet service provider, the name and version of your operating system, the name and version of your browser, the date and time of your visit, and the pages you visit. Please check your browser if you want to learn what information your browser sends or how to change your settings.
More About IP Addresses. An “IP address” is a unique number that is automatically assigned to your computer when you connect to the Internet. It is used to identify your computer’s “location” in cyberspace, so that the information you request can be delivered to you. IP addresses do not include your name, email address, or other information that identifies you personally, but in some cases, they can be used to identify you. For example, if you have registered with this Site, we may link your IP address to account information that identifies you personally. We may also provide your IP address to our third-party service providers who can use it to identify your state and zip code. In addition, if we suspect inappropriate or criminal activity or a threat to the security of this Site or its users, we may share our server logs—which contain users’ IP addresses—with the appropriate investigative authorities, who could use that information to trace and identify individuals.
Cookies and Similar Technologies. We use “cookies” and other Web technologies to collect information and support certain features of this Site. For example, we may use these technologies to:
collect information about the ways visitors use this Site—which pages they visit, which links they use, and how long they stay on each page;
support the features and functionality of this Site—for example, to save you the trouble of re-entering information already in our database or to prompt the settings you established on previous visits; and
personalize your experience when you use this Site.
Generally, the information we collect using these Web technologies does not identify you personally. If, however, you have created a user identity, for example, by registering on this Site, we may link the information we collect using these Web technologies to other information that identifies you personally.
Generally, if you do not wish to receive cookies, you may be able to set your computer or mobile browser to reject cookies or to alert you when a cookie is placed on your computer or mobile device. Although you are not required to accept cookies when you visit this Site, you may be unable to use all of the functionality of this Site if your browser rejects our cookies.
How We Use Personal Information Collected Through This Site
Generally, we use the Personal Information we collect through this Site
to provide the information, products and services you request;
to better understand your needs and interests;
to provide you with effective customer service;
to improve the content, functionality and usability of this Site;
to contact you with information and notices related to your use of this Site;
to contact you with special offers and other information we believe will be of interest to you (in accordance with any privacy preferences you have expressed to us);
to improve our products and services;
to improve our marketing and promotional efforts;
for security, credit or fraud prevention purposes; and
for any other purpose identified in any other agreement between you and us.
Please see below for information about the choices you have about the ways we use your Personal Information.
Use of Aggregated Information
We may use information gathered through this Site to create a compiled, aggregate view of its audience and visitor’s usage patterns. We use aggregated information to operate this Site and to better understand our audience as we develop new products and services. We may also share aggregated information with our third-party service providers. Aggregate information is not personally identifiable.
In General. We respect your right to make choices about the ways we collect, use, and disclose your Personal Information. Discussed above are choices you have about delivery of cookies through this Site. In addition, we may ask you to indicate certain choices at the time we collect your Personal Information. For example, at the time you give us your contact information, we may provide to you an opportunity to choose (via “opt out” or “opt in”) whether you receive certain communications from us and/or our business partners. We will also include an “unsubscribe” link in each electronic newsletter or promotional email we send to you.
Previously Expressed Preferences. You may change previously expressed preferences regarding how we use your Personal Information. If you have registered with this Site, you may be able to change certain privacy preferences through your account settings. Otherwise, if at any time you wish to be taken off our mailing lists, please contact us using the information provided above. Once we have the information we need, we will remove you from our mailing lists as you have requested. Please give us a reasonable amount of time to honor your request.
How to Access, Update or Correct Your Personal Information
If you have registered with this Site, you may be able to access, update, or correct your Personal Information through your account settings. Otherwise, you may need our help. If you wish to access, update, or correct your Personal Information, please contact us using the information provided above. We will respond to you within a reasonable time and, in any case, within the time limits established by applicable law. We may ask you for additional information to verify your identity. In most cases, we will provide access and correct or delete any inaccurate information you discover. In some cases, however, we may limit or deny your request if the law permits or requires us to do so or if we are unable to verify your identify.
Steps We Take to Safeguard your Personal Information
We maintain reasonable administrative, physical, and technological measures to protect the confidentiality and security of Personal Information you submit on or through this Site. Unfortunately, no website, server or database is completely secure or “hacker proof.” We therefore cannot guarantee that your Personal Information will not be disclosed, misused or lost by accident or by the unauthorized acts of others.
How We Share Your Personal Information With Others
Third-Party Vendors. We may share Personal Information collected through this Site with third-party vendors who act for or on behalf of Napkin Labs. For example, we may share Personal Information with companies that provide online recruiting services and Web hosting services. These third-party vendors may need information about you to perform their functions.
Business Negotiations. We may contemplate, for strategic or other reasons, selling, buying, merging, or otherwise reorganizing one or more of our businesses. In negotiating with a third party about entering into such an arrangement, we may need to disclose your Personal Information. In such cases, we will take reasonable measures to protect the Personal Information we disclose, for example, by requiring a prospective purchaser to sign a non-disclosure agreement limiting the use and protecting the confidentiality of the Personal Information.
Business Transfers. Your Personal Information may be transferred to a successor organization if, for example, we transfer the ownership or operation of this Site to another organization or if we merge with another organization. If such a transfer occurs, the successor organization’s use of your Personal Information will still be subject to this Policy and the privacy preferences you have expressed to us.
As Described in a Privacy Notice. We reserve the right to disclose your Personal Information as described in any Privacy Notice posted on the web page where you provide that information. By providing your Personal Information on that web page you will be consenting to the disclosure of your Personal Information as described in that Privacy Notice.
Children Under the Age of Thirteen
This Site is not intended for children or minors under the age of thirteen years without the permission of a parent or guardian. If you believe that a child has submitted Personal Information on or through this Site without the consent and supervision of a parent or guardian, please contact us using the information provided above.
Links to Other Sites
This Policy May Change
This Policy describes Napkin Labs’ current policies and practices with regard to the Personal Information we collect through this Site.
For your convenience, whenever this Policy is changed, we will alert you by posting a notice on our home page for sixty days. We will also update the “effective date” at the top of this page. If more than sixty days goes by between your visits to this Site, be sure you check the effective date to see if this Policy has been revised since your last visit.
The term “Personal Information” refers to information that identifies you personally, alone or in combination with other information available to us. Examples of Personal Information include your name, address, and email address.
The terms “Napkin Labs,” “we,” “us,” and “our” refer to Napkin Labs, Inc.
The term “User-Generated Content” refers to all of the text, photographs, images, illustrations, graphics, sound recordings, video, audio-video clips, and other content that you post on or through this Site. One way that User-Generated Content differs from other information you provide to us is that, once submitted, User-Generated Content is made available instantaneously to others who visit this Site. Examples of User-Generated Content include comments posted beneath blog posts available on this Site.
The term “Site” refers to the website located at www.napkinlabs.com and owned by Napkin Lab, Inc.
The term “including” means “including, but not limited to.”
The terms “Napkin Labs,” “we,” “us,” and “our” refer to Napkin Labs, Inc.
User Terms & Conditions
You (or the “User”) have requested to access and use Napkin Lab, Inc.’s (“Napkin Labs”) proprietary software and hosting services over the internet (the “System”) and through one or more third party social media sites (the “Social Media Site”). The System permits Users to interact with and respond to a problem, project, challenge, module or application that is posted to the System for review, comment and interaction with by Users and which may be comprised of a discrete item, a series of items or an ongoing engagement (“Project”) by a Napkin Labs customer (“Customer”). Through interaction with and response to a Project, Users can submit to the System and Customer ideas, comments, suggestions or submissions (“Contributions”).
PLEASE READ THIS AGREEMENT CAREFULLY AS IT HAS IMPORTANT INFORMATION REGARDING USER’S LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. THESE INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS, AND A DISPUTE RESOLUTION CLAUSE THAT GOVERNS HOW DISPUTES WILL BE RESOLVED. PLEASE NOTE THAT BY AGREEING TO THE TERMS AND CONDITIONS PROVIDED FOR HEREIN USER MAY BE TRANSFERRING OWNERSHIP OF VALUABLE INTELLECTUAL PROPERTY RIGHTS TO NAPKIN LABS OR OTHERS. BY CLICKING “I AGREE” (BELOW) AND PRESSING THE SUBMIT BUTTON (BELOW) USER REPRESENTS AND WARRANTS THAT IT HAS READ, UNDERSTANDS AND AGREES TO BE BOUND BY THESE TERMS AND CONDITIONS (“Agreement”).
Napkin Labs reserves the right, in its sole discretion, to change, modify, add, or delete portions of this Agreement at any time without further notice, provided, that those changes will only have prospective effect unless they are solely to: (i) reasonably and in good faith clarify an ambiguous term; (ii) reasonably and in good faith cause the terms of this Agreement to be enforceable according to its intent; or (iii) comply with a law, rule, regulation, court or arbitrator order, or code. If Napkin Labs makes any changes, Napkin Labs will post the changes to this Agreement on the System and will indicate the date these terms were last revised. User’s continued use of the System after any such changes constitutes User’s acceptance of the amended Agreement. If User does not agree to abide by this or any future or amended Agreement, User should not use or access (or continue to use or access) the System. It is User’s responsibility to regularly check the System to determine if there have been changes to this Agreement and to review such changes.
Any registration by, use of, or access to the System by anyone under 18 is forbidden. By using the System, User represents and warrants that User is 18 or older, and that this Agreement is binding on User.
In some cases the Customer will interact directly with User or make payment directly to User, or have other reasons to enter into agreements directly with User. If requested by the Customer, User will enter into reasonable agreements which are substantially consistent with the terms of this Agreement or are otherwise fair and reasonable. If User fails to do so, User may not be entitled to receive payment for User’s Contributions. Further, the Customer may require User to agree to additional terms, conditions or rules regarding User’s participation in a Project, including Projects that may include payments and User is responsible for complying with all such terms, conditions and rules. User further acknowledges and agrees that Projects are in no way sponsored, endorsed, or administrated by or associated with the Social Media Site and that when User provides information in connection with a Project, it is providing such information to Napkin Labs and its applicable Customer (as further described in Section 12 below) and not the Social Media Site.
1. System Access.
User will login into the System using User’s Social Media Site login information. User agrees that User is solely responsible for ensuring that (a) User does not share User’s login information with third parties; (b) User understands the need and take appropriate measures to keep all such information secret and confidential; and (c) User complies with all applicable Social Media Site terms, conditions and policies. Napkin Labs will have the right to assume that any individual accessing or using the System using User’s Social Media Site login information is associated with User and will grant access to User’s information and other capabilities accordingly. User will be entirely responsible for the acts and omissions of anyone using User’s Social Media Site login information as though such acts and omissions were the acts and omissions of User, whether or not such acts or omissions or the use of User’s Social Media Site login information were authorized by User. User will notify Napkin Labs immediately of any known or suspected unauthorized use of the login information registered to User or any other known or suspected breach of security.
Napkin Labs hereby grants to User the limited, non-exclusive, non-transferable, non-sublicensable right to access and use the System via the internet and the Social Media Site solely to participate in Projects and submit Contributions, subject to the terms and conditions of this Agreement. Except as explicitly provided herein, Napkin Labs reserves and retains all title and other rights to the System, including all intellectual property and proprietary rights thereto and including all rights of third parties which may be accessed or available on the System.
2. Restrictions on Use of System
User will not use the System for any purpose other than as expressly permitted in this Agreement. User will not misuse the System, or take other inappropriate actions whether or not concerning the System, including (but not limited to) by: (i) using robots or transmitting viruses; (ii) posting any item that violates the rights of others; (iii) making misstatements about User’s identity or affiliations; (iv) allowing others to use the System; (v) contacting Customers directly for any reason whether or not through the medium of the System unless the Project posting states User may do so; (vi) disclosing confidential information of a Customer or other person or the nature of Projects; (vii) using the System, or contact information User learns from the System, for User’s own advertising or spamming; (viii) posting any information or making any statements unrelated to the Project; (ix) contacting other users of the System to collaborate on a development or Project outside the System or to form a competing business whether or not for profit; (x) removing anything from the System or modifying it; (xi) taking any action that is harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable; (xii) modifying, adapting, reverse engineering, decompiling or attempting to discover the source code of the System (except to the extent that such a restriction would be a breach of applicable law); (xiii) interfering with or disrupting the System or servers or networks connected to the System, or disobeying any requirements, procedures, policies or regulations of networks connected to the System; (xiv) attempting to gain access to any other user’s account or password; (xv) “stalking”, abusing or attempting to abuse, or otherwise harassing another user; or (xvi) dealing with a Customer to “end run” Napkin Labs and cause Napkin Labs not to be fully involved with the Project or future Projects a Customer may otherwise engage Napkin Labs to perform. Napkin Labs may use its subjective judgment as to any of the foregoing, and notwithstanding the foregoing specific list, any license Napkin Labs grants User under this Agreement, or other rights under this Agreement are revocable at any time by Napkin Labs without notice and with or without cause. A revocation of that license or those rights does not terminate any (i) transfer by User of title or other rights to any Contribution, or (ii) obligation by User to take future actions with respect to Contributions described in this Agreement.
Regardless of whether User receives or will receive any payment for any Contributions, whenever User submits a Contribution to the System in connection with a Project, User hereby irrevocably and perpetually assigns to Napkin Labs or Customer (as Napkin Labs and Customer agree) without further action by User, and agrees to deliver such additional assignments or other instruments of transfer as may be reasonably requested by Napkin Labs or Customer, all of User’s right, title and interest in and to the Contribution (and any related concepts, ideas, improvements and/or modifications thereto) including without limitation, all related intellectual property and proprietary rights (including “moral rights”) and the right to sue and settle any past, present and future infringement of any such rights.
If for any reason such assignment is not fully effective (by law or otherwise), User hereby grants to Napkin Labs or Customer (as Napkin Labs and Customer agree) a royalty-free, worldwide, fully paid-up, transferrable, sublicensable, divisible, perpetual, irrevocable, exclusive right and license to use, reproduce, modify, arrange, rearrange, display, transmit, market, sell, offer for sale, manufacture, import, prepare derivative works based on, distribute throughout the world (in any medium now known or hereafter created), publicize, and otherwise utilize or exploit in any fashion User’s Contributions including any and all intellectual property and proprietary rights pertaining thereto. To the extent such Contribution or related intellectual property rights cannot be assigned or licensed, by law or otherwise, User hereby waives enforcement of such rights against Napkin Labs and the Customer, and their respective successors, assigns and licensees. User further agrees that User will not make any claims against Napkin Labs or Customer or any third party who is assigned or licensed rights in such Contribution by Napkin Labs or Customer, based on any allegations that any activities by Napkin Labs or Customer or such third party infringe User’s (or anyone else’s) rights in the Contribution. User further represents, warrants and covenants that in connection with any such assignment User reserves no (and are unaware of any other party having any) rights whatsoever with respect to such Contributions and related intellectual property rights and Napkin Labs or Customer (as Napkin Labs and Customer agree) will have the right to enforce all intellectual property rights in the Contribution against User and all other persons with respect to any subsequent use by User of such Contribution. User will not claim that the amount of User’s payment, if any, was less than a fair amount or that it was not adequate.
User will assist Napkin Labs or Customer (as Napkin Labs and Customer agree) in perfecting, maintaining, enforcing and defending its rights in Contributions it obtains from User, including without limitation, signing patent applications, patent assignments, copyright registrations, giving testimony and the like. If Napkin Labs or Customer requests User to do these things and it will take more than two hours, the company making the request will pay User its “market rate” (but not more than $50.00 per hour) for User’s reasonable time spent on such activities.
User hereby irrevocably designates and appoints Napkin Labs or Customer (as Napkin Labs and Customer agree), and its respective officers and agents, as User’s agent and attorney-in-fact to act for and on User’s behalf and instead of User, to execute and file any documents, applications or related findings and to do all other lawfully permitted acts in furtherance of the purposes set forth above in this Agreement, including, without limitation, the perfection of assignment and the prosecution and issuance of patents, patent applications, copyright applications and registrations, trademark applications and registrations, or other rights in connection with such Contributions and improvements thereto with the same legal force and effect as if executed by User.
Napkin Labs or Customer (as Napkin Labs and Customer agree) has the right to have the provisions of this Section specifically enforced by either Napkin Labs or Customer (as Napkin Labs and Customer agree) or any third party who is assigned or licensed rights in such Contributions by Napkin Labs or Customer (as Napkin Labs and Customer agree), and any such third party is intended to be a third party beneficiary of this provision.
User further understands and agrees that: (i) User is solely responsible for understanding all copyright, patent, trademark, trade secret and other intellectual property or other laws that may apply to User’s Contribution; (ii) User is solely responsible for, and Napkin Labs will have no liability in connection with, the legal consequences of any actions or failures to act by User while using the System, including without limitation any legal consequences relating to User’s or any other person’s intellectual property rights or proprietary information; (iii) User represents and warrants that User’s Contribution does not infringe on any rights of others including intellectual property and proprietary rights and was not misappropriated from or assigned to another person; and (iv) User has the right to transfer the title to the Contribution and related intellectual property and proprietary rights provided for herein.
User agrees that User’s creation or submission of any Contribution is not in any way based upon any expectation of any compensation or any specific level of compensation from Napkin Labs, Customers, or any other users.
Napkin Labs and Customers have no obligation to use a Contribution, continue any Project, commercialize any Contribution, operate the System in a particular fashion, allow a posting on the System, continue its business, or return any Contributions. Napkin Labs may sell or license any Contribution to any other person (a “person” includes natural individuals, corporations, trusts, governmental bodies, and other enterprises, entities, agencies, or associations), or reuse it for another reason or Project. In addition, Napkin Labs may take the Contributions and distill, refine or otherwise deal with them before delivering them to the Customer.
4. Rights of Third Parties.
User acknowledges that: (i) by using the System User may have access to Contributions provided by other users and possibly information provided by Napkin Labs, a Customer, or others, and (ii) information on the System (other than User’s Contributions) may be provided under license by others. User acknowledges that, unless otherwise agreed in writing, User has no rights to any such items and User accepts full responsibility and liability for User’s use of any such materials, including any use in violation of any rights of others. Napkin Labs and the Customer are not responsible or liable in any manner for any Contribution posted on the System.
Napkin Labs respects the intellectual property rights of others and Napkin Labs prohibits users of the System from uploading, posting or otherwise transmitting to the System any materials that violate another party’s intellectual property rights or that constitutes another person’s proprietary information (and User represents, warrants and covenants that User will not do so). User will immediately notify Napkin Labs if User believes another person who is posting Contributions on the System is infringing another person’s intellectual property rights or has misappropriated a Contribution from another person.
Napkin Labs and its Customers will be providing information to User, on the understanding that such information will remain confidential. “Confidential Information” means any and all technical or business data, information or items (including third party data, information or items) in whatever form or medium, provided by Napkin Labs or its Customers to User or posted on the System by others (including without limitation, Contributions posted by other users) regardless of whether such data, information or items are marked or identified as “Confidential”.
User will: (1) treat as confidential, and preserve the confidentiality of, all Confidential Information; (2) use the Confidential Information solely for generating Contributions solely to be posted on the System; (3) not copy such Confidential Information unless specifically authorized by Napkin Labs; (4) promptly return and/or destroy all Confidential Information at Napkin Labs’s request; and (5) immediately notify Napkin Labs upon discovery of any loss or unauthorized disclosure of any Confidential Information and use all reasonable efforts to retrieve such Confidential Information.
The confidentiality obligations imposed by this Agreement will not apply to any information that: (1) was already in User’s possession as shown by documentation; (2) is or becomes publicly available through no fault of User; (3) is obtained by User from a third person without breach by such third person of an obligation of confidence with respect to the Confidential Information disclosed; or (4) information that is required to be disclosed pursuant to a valid judicial or administrative order, provided that User: (i) provides timely written notice of such order to Napkin Labs and reasonably cooperates with any efforts by Napkin Labs to contest or limit the scope of such order; and (ii) uses all reasonable efforts to limit the disclosure of such Confidential Information and seeks a protective order or an equivalent to protect the disclosure of such Confidential Information. Information will not be deemed to be within the foregoing exceptions merely because it is: embraced by more general information in the public domain or in the possession of the party receiving such information; or a combination of individual items of information that could be pieced together to reconstruct such combination from non-Confidential Information.
As may be further described in a Project or by Napkin Labs or a Customer, certain Projects may provide for fees, rewards or other payments for certain Contributions. Accordingly, User may be entitled to receive such fees, rewards or other payments for User’s participation in a Project and User’s submission of Contributions; provided, however, that (i) all such fees, rewards and other payments will be subject to any additional terms, conditions, policies and rules as may be established by Napkin Labs or a Customer regarding the applicable Project including with respect to amounts, conditions and timing for any such payments; and (ii) all such payments will be paid by Customer and if User is entitled to any such payment, User will look solely to Customer for such payments and User hereby waives any and all claims against Napkin Labs for any such payments. Napkin Labs recommends that User read all information regarding a Project and any payment(s) that may be available in connection with such Project before submitting Contributions as such information is hereby incorporated into this Agreement and binding upon User.
User is responsible for all taxes due on any payments made to User in connection with User’s participation on the System or any Project. Napkin Labs and Customer will be under no obligation to make any payments to User unless User has properly submitted any required information regarding taxes or other payment information. User agrees that User is not an employee of Napkin Labs or Customer and Napkin Labs and Customer do not have to pay or reserve any withholding taxes, FICA, FUTA, workers compensation fund, or other payments which it may have to make if User were an employee. User is not entitled to any Napkin Labs or Customer benefits of any type. User is not a partner or joint venturer with Napkin Labs or Customer. If Napkin Labs or Customer believes it has an obligation to make tax, trust fund or similar payments to a governmental body in respect of payments to User, including because User is not a U.S. resident, it may do so and deduct the amount from the amount paid to User. Napkin Labs or Customer expects to report the payments to User to tax authorities.
7. Conflicts of Interest
User acknowledges and agrees that Customer may post Projects on its or its clients’ behalf and that Customer and such clients do not want to inadvertently disclose proprietary information to such Customer’s or clients’ competitors. Accordingly, User represents and warrants that User is not employed, affiliated, contracted or otherwise engaged with any entity or organization that could reasonably be construed to be a competitor of Customer or its clients. In addition, Customer may specify, with respect to certain Projects, that individuals who are affiliated with certain entities or organizations are not eligible to participate in such Projects. Accordingly, User also represents and warrants that User is not employed, affiliated, contracted or otherwise engaged with any such entity or organization.
If User is employed, affiliated, contracted or otherwise engaged with any such entity or organization, User acknowledges and agrees that User will not be entitled to participate in that Project and User will not proceed with such participation. If User becomes employed, affiliated, contracted or otherwise engaged with any such entity or organization, User will promptly notify Napkin Labs of such and Napkin Labs will be entitled to (i) terminate User’s participation in that Project, and (ii) revoke User’s access privileges for that Project.
8. Disputes Between Users.
User hereby releases Napkin Labs (and Napkin Labs’ shareholders, affiliates, directors, officers, subsidiaries, employees, owners and agents), and Customer, from all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with any dispute User has or claims to have with one or more other users of the System or a Customer; including, without limitation, any claim that another user infringes upon User’s intellectual property rights or misappropriated User’s Contributions. User further understands and agrees that: (i) Napkin Labs will have the right but not the obligation to resolve disputes between users of the System, and Napkin Labs’ resolution of any particular dispute does not create an obligation to resolve any other dispute; (ii) Napkin Labs’ resolution of such disputes will be final and non-appealable with respect to the System, rights regarding Contributions, or the allocation of any payments due to User, but will have no other bearing on disputes between users; and (iii) User hereby releases Napkin Labs (and Napkin Labs’ shareholders, affiliates, directors, officers, subsidiaries, employees, owners and agents) from all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with Napkin Labs’ resolution of disputes relating to the System.
For purposes of all waivers of claims in this Agreement, User has read and specifically waives Section 1542 of the Civil Code of the State of California, which provides as follows: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.”
Napkin Labs is not responsible for Customer use of any Contributions and Napkin Labs does not screen or otherwise assure that a Customer’s request for a Project does not violate any applicable laws or rights of another person.
Napkin Labs generally does not regulate communications between users or users’ interactions with the System. As a result, Napkin Labs has very little control, if any, over the quality, safety, morality, legality, truthfulness or accuracy of Contributions provided by users. Nonetheless, Napkin Labs reserves the right to monitor and/or limit anything posted by a User to the System, including Contributions.
9. All Goods and Services are Provided by Napkins Labs “as is” Without Express or Implied Warranties.
NAPKIN LABS PROVIDES THE SYSTEM, USER’S ACCOUNT AND ALL RELATED GOODS AND SERVICES STRICTLY ON AN “AS IS” BASIS, PROVIDED AND ACCEPTED AT USER’S OWN RISK, AND NAPKIN LABS HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES OR CONDITIONS OF ANY KIND, WRITTEN OR ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF TITLE, NONINFRINGEMENT, BY SAMPLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Without limiting the foregoing, Napkin Labs does not ensure continuous, error-free, secure or virus-free operation of the System or User’s account, and User understands that User is not entitled to make any claim based on Napkin Labs’ failure to provide any of the foregoing.
Some jurisdictions do not allow the disclaimer of implied warranties, and to that extent, the foregoing disclaimer may not apply to User.
10. Napkin Labs’ Liability To User Is Expressly Limited, To The Extent Allowable Under Applicable Law.
IN NO EVENT WILL NAPKIN LABS OR ANY OF ITS SHAREHOLDERS, AFFILIATES, DIRECTORS, OFFICERS, SUBSIDIARIES, EMPLOYEES, OWNERS, LENDERS, CUSTOMERS, OR AGENTS BE LIABLE TO USER OR TO ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, LOST PROFITS, PUNITIVE OR EXEMPLARY DAMAGES, ARISING (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE) OUT OF OR IN CONNECTION WITH THE SYSTEM (INCLUDING WITHOUT LIMITATION ITS MODIFICATION OR TERMINATION), USER’S ACCOUNT (INCLUDING WITHOUT LIMITATION ITS TERMINATION OR SUSPENSION) OR THIS AGREEMENT, WHETHER OR NOT NAPKIN LABS MAY HAVE BEEN ADVISED THAT ANY SUCH DAMAGES MIGHT OR COULD OCCUR AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. IN ADDITION, IN NO EVENT WILL NAPKIN LABS’ CUMULATIVE LIABILITY TO USER FOR DIRECT DAMAGES OF ANY KIND OR NATURE EXCEED ONE THOUSAND DOLLARS (U.S. $1,000).
Napkin Labs is not liable to User if any information provided by others on the System (i) is not accurate or complete, (ii) is illegally provided, or (iii) infringes rights of others.
Some jurisdictions do not allow the foregoing limitations of liability, so to the extent that any such limitation is impermissible, such limitation may not apply to User.
11. Indemnification by User.
User hereby agrees to defend, indemnify and hold harmless Napkin Labs, its shareholders, affiliates, directors, officers, subsidiaries, employees, agents, owners, customers (including Customer), suppliers, licensees, distributors, successors and assigns, and other users, from all damages, liabilities, claims and expenses, including without limitation attorneys’ fees and costs, arising from any breach of this Agreement by User, from User’s use of the System, and any claims by third parties that User’s activity on or related to the System or Contributions infringes upon, violates or misappropriates any of their intellectual property rights or discloses their proprietary information.
The personal information User provides to Napkin Labs during registration or in response to any requests for information on the System, including forms and requests relating to profile creation and information necessary for User to receive payments, if any, is used for Napkin Labs’ internal purposes and for providing the System and related services to User and Customers only. Further, User may have the opportunity to choose to register, log-on, or enhance User’s profile on the System through User’s account with the Social Media Site. By doing this, User is asking the Social Media Site to send Napkin Labs registration information from User’s account with that service. Napkin Labs treats that information as it does any other information User gives to Napkin Labs when User registers, logs-on, or enhances User’s profile.
Among other things, and without limitation, Napkin Labs may provide its Customers the name, contact and other demographic information of users of the System, including User. Napkin Labs also uses the information it collects to learn what users like and to improve the System, including by aggregating such information for Napkin Labs’ research purposes. Napkin Labs will not give any of User’s personal information to any third party without User’s express approval except: as reasonably necessary to fulfill User’s service request, to third-party fulfillment houses, customer support, the Customer, billing and credit verification services, and the like; to comply with tax and other applicable laws including money laundering or anti-terrorism laws; as otherwise expressly permitted by this Agreement or as otherwise authorized by User; to law enforcement or other appropriate third parties in connection with criminal investigations and other investigations of fraud; or as otherwise necessary to protect Napkin Labs or the Customer, their respective agents and other users of the System. Napkin Labs does not guarantee the security of any of User’s private transmissions against unauthorized or unlawful interception or access by third parties. Napkin Labs can (and User authorizes Napkin Labs to) disclose any information about User to private entities, law enforcement agencies or government officials, as Napkin Labs, in its sole discretion, believes necessary or appropriate to investigate or resolve possible problems or inquiries, or as otherwise required by law. User agrees that Napkin Labs may communicate with User via email and any similar technology for any purpose relating to the System. User acknowledges and agrees that Napkin Labs, in its sole discretion, may track, record, observe or follow any and all of User’s interactions within the System. Napkin Labs may share general, demographic, or aggregated information with third parties about its users and their Contributions and System usage, but that information will not include or be linked to any personal identifiable information without User’s consent (and User hereby consents to it being provided to the Customer for a Project).
13. Dispute Resolution; Governing Law; Venue and Jurisdiction.
The laws of the state of Colorado and United States Federal law govern this Agreement, without giving effect to any principles of conflicts of laws that would result in application of another law. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. This Agreement has been written in the English language, and the parties agree that the English version will govern. User agrees that any action arising out of or related to this Agreement, Contributions or the System will be submitted to arbitration in Boulder or Denver, Colorado. Arbitration under this Agreement will be conducted under the commercial arbitration rules of the American Arbitration Association. The arbitrator will apply the substantive law of the state of Colorado and United States Federal law. The arbitrator’s award will be binding and may be entered as a judgment in any court of competent jurisdiction, and may be appealed to a court only as permitted by the Federal Arbitration Act (9 U.S.C. § 1 et. seq.).
Notwithstanding the foregoing, Napkin Labs may seek preliminary or temporary injunctive relief (which will remain in effect until the entering into of a binding, non-appealable, enforceable arbitration award as provided immediately above) to enforce the terms of this Agreement or enforce its intellectual property rights, in any state or federal court in the state of Colorado, or such other venue as Napkin Labs may select where User has significant contacts or resides, and User consents to exclusive jurisdiction and venue in such courts.
A Customer on a Project may elect to have any dispute between the Customer and User governed by the terms of this Section.
14. General Provisions.
The System is controlled and operated by Napkin Labs from its offices within the United States of America. Napkin Labs makes no representation that any aspect of the System is appropriate or available for use in jurisdictions outside of the United States. Those who choose to access the System from other locations are responsible for compliance with applicable local laws. User will comply with all export and import laws and restrictions and regulations of any United States or foreign agency or authority relating to the System and its use. Napkin Labs’ failure to act with respect to a breach by User or others does not waive Napkin Labs’ right to act with respect to that breach or subsequent or similar breaches. No consent or waiver by Napkin Labs under this Agreement will be effective unless delivered in a writing signed (which may include email signature) by an officer of Napkin Labs. All or any of Napkin Labs’ rights and obligations under this Agreement may be assigned by it, including, but not limited, to a subsequent owner or operator of the System in a merger, acquisition or sale of any or all of Napkin Labs’ assets. Napkin Labs may assign any or all of its rights and obligations to one or more persons. User will not assign or transfer this Agreement or any or all of User’s rights hereunder without the prior written consent of Napkin Labs, and any attempt to do so is void. No default, delay or failure to perform on the part of Napkin Labs will be considered a breach of this Agreement if such default, delay or failure to perform is shown to be due to causes beyond the reasonable control of Napkin Labs.
Except as explicitly provided in this Agreement, nothing contained in this Agreement will be construed as creating a relationship between the parties of partners, joint venturers, or agents, and neither party has the power to bind the other to any contract or commitment.
If any part of this Agreement is for any reason declared invalid or unenforceable, such decision will not affect the validity of any remaining portion of the Agreement, which will remain in full force and effect. In such an event, the parties will promptly substitute for the invalid provision a valid and enforceable provision which most closely approximates the intent and economic effect of the invalid provision.
Napkin Labs may assign to a Customer a right to enforce some or all of Napkin Labs’ rights against User for breaches of this Agreement. Among other things this means a Customer can directly sue User for breaching the obligations to maintain the confidentiality of its information. A Customer may elect to enforce these rights in an arbitration conducted pursuant to the arbitration provisions of this Agreement or enforce its rights in a court.
This Agreement sets forth the entire understanding and agreement between User and Napkin Labs with respect to the subject matter hereof. The section headings used herein, including descriptive headings, are for convenience only and will not affect the interpretation of this Agreement. There are no third party beneficiaries of this Agreement, except that with the consent of Napkin Labs the Customer is entitled to the benefit of the provisions herein specifically naming the Customer. Notwithstanding the prior sentence, this Agreement may be amended, modified, superseded, or terminated without the consent of the Customer.
This Agreement will continue until terminated by either User or Napkin Labs upon written notice, which may include notice by email or by providing notice as provided in the System. The following sections survive the expiration or termination of this Agreement: 2, 3, 5, 8, 9, 10, 11, 13 and 14.
If User fails to bring any claim for breach of this Agreement by Napkin Labs within one year of the alleged breach, User agrees that such claim may not be brought.
Napkin Labs has the right, but not the obligation, to remove any Contributions, data, or other information (including User’s Contributions) in whole or in part at any time for any reason or no reason, with or without notice and without any liability of any kind.
Napkin Labs reserves the right to interrupt the operation of the System with or without prior notice for any reason or no reason. Napkin Labs will not be liable for any interruption of the System, delay or failure to perform. Napkin Labs has the right at any time for any reason or no reason to change and/or eliminate all or any part of the System or a Project, as it sees fit in its sole discretion.
Napkin Labs may give notice to User by means of a general notice on the System, by email to User’s email address in our records, or by written communication sent by first class mail, postage prepaid, or overnight courier to User’s address on record. User will email all notices given by User to Napkin Labs at email@example.com.
User understands and agrees that by creating a profile on the System and any successor system that User is providing an electronic signature and entering into a legally binding agreement, the equivalent of a signed, written contract, the terms and conditions of which are set forth above.
VERSION DATE: APRIL 10, 2012
Napkin Labs Subscriber Terms & Conditions
You (or the “Subscriber”) have signed up to access Napkin Lab, Inc. ’s (“Napkin Labs”) System through the Social Media Site and will be entitled to post Projects through the System on your or your Clients’ behalf. By clicking “OK, ” “I Agree” or “I Accept” when prompted, you agree that you will be bound, without limitation or qualification, by the terms and conditions below (this “Agreement”) which is a binding agreement on you and Napkin Labs. For purposes of this Agreement, “Subscriber” refers to the person or entity accessing the System. By accessing the System and clicking the button or box marked “OK, ” “I Agree” or “I Accept” when prompted, you hereby represent and warrant that you have the authority to bind the entity accessing the System to this Agreement.
1. Definitions. Capitalized terms not defined elsewhere in this Agreement are defined as follows:
1.1. “Client” means a client of Subscriber for which Subscriber has agreed to perform certain services.
1.2. “Client Agreement” means an agreement between Subscriber and a Client under which Subscriber has agreed to perform services for Client.
1.3. “Contributions” means any ideas, comments, suggestions or submissions made by a User to the System in response to a Project.
1.4. “Order Form” means the order form on the Napkin Labs website completed by the Subscriber in which Subscriber provided its contact information to Napkin Labs and chose, among a list provided by Napkin Labs, the period and pricing of its subscription to use the System
1.5. “Project” means a problem, project, challenge, module or application that Subscriber desires to submit to the System for review, comment and interaction with by Users and which may be comprised of a discrete item, a series of items or an ongoing engagement.
1.6. “Social Media Site” means the social media website(s) operated by third parties through which the System may be accessed by Users, or through which Users may submit Contributions.
1.7. “Software” means the proprietary software owned by Napkin Labs, together with all updates, modifications, customizations, new versions and new releases thereof and all related documentation provided by Napkin Labs to Subscriber under this Agreement.
1.8. “Subscriber Materials” means any documents, materials or information provided, transmitted or submitted to the System or Napkin Labs by Subscriber or any Client.
1.9. “System” means the Software and all software, hardware and systems accessed or utilized by Napkin Labs in connection with providing access to Subscriber and Users through the Social Media Site under this Agreement (but specifically excluding the Social Media Site).
1.10. “Users” means users of the Social Media Site who have registered to use the System and who may participate in a Project, subject to any applicable terms and conditions.
2.1. Napkin Labs Obligations. During the Term (as defined below), Napkin Labs (whether on its own behalf or through a designated third party) will operate and maintain the System and will make the System available to Subscriber via the internet and the Social Media Site for its permitted use under this Agreement in accordance with the terms and conditions of this Agreement.
2.2. Right to Use System. Napkin Labs hereby grants to Subscriber the limited, nonexclusive, non-transferable, non-sublicensable right to access and use the System via the internet and the Social Media Site solely to submit and manage Projects on its and its Clients’ behalf, during the Term subject to the terms and conditions of this Agreement.
2.3. Subscriber Obligations. As between Napkin Labs and Subscriber, Subscriber will be solely responsible for (a) developing Projects and submitting them to the System; (b) managing and updating information for Projects; (c) communicating with Clients and reporting results of Projects to Clients; (d) if applicable, the funding and payment of all amounts payable to Users (which amounts will be distributed to Users by Subscriber) ; (e) all taxes, tax withholding payments, and tax reporting applicable to any payments to Users; and (f) all of its obligations under the Client Agreements and any and all applicable agreements between Subscriber or Client, on the one hand, and Users on the other and all terms, conditions or policies of the Social Media Site.
3. Access Controls.
3.1. Social Media Site Login. Subscriber may login to the System using its Social Media Site login information. Subscriber is responsible for authorizing, designating and managing its personnel that will be permitted to access and use the System (“Authorized Users”). Accordingly, Subscriber agrees that it is solely responsible for ensuring that (a) its Authorized Users do not share Subscriber’s login information with third parties; (b) its Authorized Users understand the need and take appropriate measures to keep all such information secret and confidential; and (c) Authorized Users comply with all applicable Social Media Site terms, conditions and policies. Napkin Labs will have the right to assume that any individual accessing or using the System using Subscriber’s Social Media Site login information is associated with Subscriber and will grant access to Subscriber’s information and other capabilities accordingly. Subscriber will be entirely responsible for the acts and omissions of anyone using Subscriber’s Social Media Site login information as though such acts and omissions were the acts and omissions of Subscriber, whether or not such acts or omissions or the use of Subscriber’s Social Media Site login information were authorized by Subscriber. If Subscriber wishes to terminate or modify the access rights of any of its Authorized Users, Subscriber will be entirely responsible for such changes. Subscriber will notify Napkin Labs immediately of any known or suspected unauthorized use of the login information registered to Subscriber or any other known or suspected breach of security.
3.2. Right to Deny Access. Napkin Labs reserves the right, at its sole discretion, to deny, limit or terminate access to the System or any portion thereof, at any time, as necessary or advisable to protect the security and integrity of the System. Whenever Napkin Labs is able to do so without compromising the security or integrity of the System, Napkin Labs will give Subscriber reasonable notice before taking such action. If Napkin Labs determines, in its sole discretion, that it is advisable to take immediate action, without prior notice to Subscriber, Napkin Labs will notify Subscriber as soon as reasonably practicable of its action and, if it can do so without compromising the security of the System or any investigation, the reason for the action.
3.3. Support; Upgrades and Enhancements. Napkin Labs (or its third party designees) will provide reasonable remote telephone (9 a. m. – 5 p. m. Mountain time, Monday through Friday) or email customer service and support for the System at no cost to Subscriber. Napkin Labs will use commercially reasonable efforts to correct any faults within a reasonable period of time and at no cost to Subscriber; provided, however that Napkin Labs is under no obligation to provide ongoing enhancements or upgrades to the System. Napkin Labs will make available in the System code corrections and fixes, updates and new releases to the Software and which are made available by Napkin Labs generally to all of its customers (“Upgrades and Enhancements”). Upgrades and Enhancements do not include new optional functionality, “net-new” functionality or major revision changes to the Software, which may be made available as separate Napkin Labs products which Subscriber can obtain access to, when commercially available, for additional fees. Napkin Labs retains the right, in its sole and absolute discretion, to modify, alter or enhance the operation and functionality of the System without prior notice to Subscriber; provided that such modifications, alterations and enhancements do not materially affect the operation of the System in a detrimental manner.
4. Intellectual Property.
4.1. System. Subscriber acknowledges and agrees that, as between Napkin Labs and Subscriber, Napkin Labs owns all rights, title and interests in and to the Software and the System, including all intellectual property rights therein or appurtenant thereto. Subscriber further acknowledges and agrees that the Software and the System contains the valuable trade secrets of Napkin Labs and third parties. Subscriber will not acquire any right, title or interest in the Software or the System or any portion or component thereof pursuant to this Agreement, other than the right to access and use the System as expressly granted in this Agreement, subject to the terms and conditions of this Agreement.
4.2. Contributions and Subscriber Materials. The parties acknowledge and agree that, as between the parties, the Contributions and Subscriber Materials, and all intellectual property rights therein or appurtenant thereto will be the exclusive property of Subscriber and Napkin Labs hereby assigns to Subscriber all of its rights, title and interests, if any, in and to the Contributions and Subscriber Materials and all intellectual property rights therein or appurtenant thereto. The foregoing notwithstanding, Subscriber acknowledges and agrees that Subscriber’s rights in and to the Contributions may be subject to any and all rights granted to the Social Media Site pursuant to terms and conditions governing Users’ use of the Social Media Site and Napkin Labs recommends that Subscriber review all such terms and conditions prior to developing a Project using a Social Media Site. Napkin Labs will, upon Subscriber’s reasonable request and at Subscriber’s cost and expense, execute and deliver to Subscriber any documents and give all assistance reasonably necessary to assign to and vest in Subscriber the foregoing rights.
4.3. License to Napkin Labs. Subscriber hereby grants to Napkin Labs (including its personnel and its Users) a nonexclusive, worldwide, royalty-free and nontransferable license to use, execute, reproduce, display, perform, copy, distribute internally, store, edit, format, modify, create derivative works of or translate the Contributions and Subscriber Materials solely for the purpose of enabling Napkin Labs to design, create, develop, receive ideas, test, operate, enhance, and maintain the System and make the System available to Subscriber and Users in accordance with and subject to this Agreement. Napkin Labs will have no other rights with respect to the Contributions or Subscriber Materials and will not have any authority to apply for the ownership or registration of any Contributions or Subscriber Materials.
4.4. Subscriber Trademarks. If Subscriber desires that Napkin Labs create a private-label version of the System for use by Subscriber or for Napkin Labs to otherwise display Subscriber’s trademarks or logos (the “Subscriber Marks”) on the System or in connection with any Projects, then Subscriber hereby grants Napkin Labs a limited, fully paid-up, non-exclusive, nontransferable, non-sublicensable license to use the Subscriber Marks solely for such purposes or as otherwise agreed by the parties. The parties acknowledge and agree that all such use and associated goodwill inures solely to the benefit of Subscriber.
5.1. Generally. In consideration of the rights to use the System under this Agreement, Subscriber will pay Napkin Labs the fees set forth on the Order Form. Subscriber will provide Napkin Labs with valid credit card information and other payment information pursuant to the Order Form prior to accessing the System. Subscriber authorizes Napkin Labs to charge fees to Subscriber’s credit card or other payment account for the Subscriber’s use of the System. Fees are exclusive of taxes, levies, duties, governmental charges or expenses. In addition to the fees and expenses specified in this Agreement, Subscriber is solely responsible for and will pay (or reimburse Napkin Labs for) all withholding, value added and sales taxes due, except for taxes on Napkin Labs’ income.
5.2. Payment Timing. Unless otherwise specified in the Order Form, during the Term fees are due monthly in advance at which time Napkin Labs will bill Subscriber or charge Subscriber’s credit card or other payment account. There will be no refunds or credits for partial months of service, upgrade/downgrade refunds, or refunds for months unused with an open account. In the event fees are not timely paid, Napkin Labs may disable Subscriber’s access to the System and/ or terminate this Agreement at any time without limiting any of its other remedies, including the payment of fees for Subscriber’s access during any grace period provided by Napkin Labs.
5.3. Upgrades and Downgrades. For any upgrade in plan level, the credit card or other payment account that Subscriber provided will automatically be charged the new rate on Subscriber’s next billing cycle in addition to a pro-rata portion of the increased rate for the days remaining in the month in which the upgrade was made. For any downgrade in plan level, the credit card or other payment account that Subscriber provided will automatically be charged the new (lower) rate on Subscriber’s next billing cycle, but Subscriber will not be entitled to any refund of fees previously paid.
6. Confidential Information.
6.1. Confidential Information. Napkin Labs will be providing information to Subscriber, and Subscriber will be providing information to Napkin Labs, on the understanding that certain of such information will remain confidential. “Confidential Information” means any and all technical or business data, information or items of a confidential or proprietary nature (including third party data, information or items) in whatever form or medium provided by one party (“Disclosing Party”) to another (“Receiving Party”) regardless of whether such data, information or items are marked or identified as “confidential”. For the purposes of clarity, the parties acknowledge and agree that (a) Napkin Labs’ Confidential Information includes the Software and all data, information and items on the System disclosed by Napkin Labs; and (b) information disclosed by Subscriber on the System to Users is not Confidential Information and Contributions submitted through the Social Media Site may not be Confidential Information.
6.2. Confidentiality Obligations. Each party will: (a) treat as confidential, and preserve the confidentiality of, all Confidential Information of the Disclosing Party; (b) use the Confidential Information of the Disclosing Party solely for purposes of this Agreement; (c) promptly return and/ or destroy all Confidential Information at the Disclosing Party’s request; and (d) immediately notify the Disclosing Party upon discovery of any loss or unauthorized disclosure of any Confidential Information and use all reasonable efforts to retrieve such Confidential Information.
6.3. Limitations. The confidentiality obligations imposed by this Agreement will not apply to any information that: (a) was already in the Receiving Party’s possession without obligations of confidentiality as shown by documentation; (b) is or becomes publicly available through no fault of the Receiving Party; (c) is obtained by the Receiving Party from a third person without breach by such third person of an obligation of confidence with respect to the Confidential Information disclosed; or (d) information that is required to be disclosed pursuant to a valid judicial or administrative order, provided that the Receiving Party: (i) provides timely written notice of such order to the Disclosing Party and reasonably cooperates with any efforts by the Disclosing Party to contest or limit the scope of such order; and (ii) uses all reasonable efforts to limit the disclosure of such Confidential Information.
7. Term; Termination.
7.1. Term. The term of this Agreement (the “Term”) will begin on the Effective Date and will continue for the period of time Subscriber has elected to have access to the System pursuant to the Order Form. At the end of a Term, a Term may be extended by following the instructions provided by Napkin Labs. Any extension shall be subject to amendments or modifications to this Agreement made by Napkin Labs pursuant to Section 10.8.
7.2. Termination. In addition to Napkin Labs’ ability to terminate as set forth elsewhere in this Agreement, either party may terminate this Agreement by email to the other party or by providing notice as provided in the System: (a) if the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days of receiving a written notice of breach from the non-breaching party; (b) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of any applicable laws; (c) a bankruptcy or other petition is filed, a notice is given, or an order is made, for the winding up of that other party; (d) an application is made to court, or an order is made, for the appointment of an administrator, receiver or trustee, or if an administrator, receiver or trustee is appointed over the other party; (e) a creditor of the other party attaches or takes possession of, the whole or any part of its assets and such attachment or process is not discharged within thirty (30) days; or (f) the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.
7.3. Subscriber’s Obligations Upon Termination. Upon the expiration or termination of this Agreement for any reason: (a) Subscriber will cease use of the System and will destroy, permanently erase or return to Napkin Labs any portion of Napkin Labs’ Confidential Information in its possession or control; and (b) Napkin Labs will destroy, permanently erase or return to Subscriber all of Subscriber’s Confidential Information in Napkin Labs’ possession or control. Notwithstanding the foregoing, a party may maintain one hard copy of the Confidential Information in a secure location solely for purposes of use in litigation or arbitration related to this Agreement or its subject matter.
7.4. Survival. Sections 1, 4, 6, 7.3, 7.4 and 8-10 of this Agreement and Subscriber’s payment obligations arising prior to the termination or expiration of this Agreement will survive the termination or expiration of this Agreement.
8. Warranties; Disclaimer.
8.1. Limited Warranty. Napkin Labs warrants to Subscriber that the System utilized by Customer under this Agreement will function substantially in accordance with its specifications. In the event of a breach of the warranty set forth in this Section, Napkin Labs’ sole and exclusive responsibility, and Subscriber’s sole and exclusive remedy, is for Napkin Labs to correct or replace, at no additional charge to Subscriber, any functionality of the System found to be defective.
8.2. Disclaimer. EXCEPT AS EXPRESSLY CONTAINED IN THIS AGREEMENT, ALL WARRANTIES, CONDITIONS AND OTHER TERMS IMPLIED BY STATUTE, COMMON LAW OR IN ANY OTHER WAY, INCLUDING ANY IMPLIED WARRANTIES AS TO QUALITY, PERFORMANCE, TITLE, NONINFRINGEMENT, INFORMATIONAL CONTENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ALL WARRANTIES ARISING OUT OF COURSE OF DEALING, BY SAMPLE, COURSE OF PERFORMANCE AND USAGE OF TRADE, ARE EXCLUDED FROM THIS AGREEMENT TO THE FULLEST EXTENT PERMITTED BY LAW. THE CONTRIBUTIONS ARE PROVIDED “AS IS” AND WITHOUT REPRESENTATION OR WARRANTY INCLUDING WITH RESPECT TO TITLE AND NONINFRINGEMENT AND NAPKIN LABS DOES NOT WARRANT THAT THE CONTRIBUTIONS OR THE SYSTEM WILL MEET THE REQUIREMENTS OF SUBSCRIBER OR ANY CLIENTS OR THAT THE OPERATION OR USE OF THE SYSTEM WILL BE UNINTERRUPTED OR ERROR FREE. Without limiting the foregoing, Napkin Labs explicitly disclaims to Subscriber any guaranty or warranty regarding the Social Media Site or that any Contributions are non-infringing or that Subscriber’s rights in and to the Contributions are not subject to any rights granted to third parties, including the Social Media Site. Napkin Labs is not responsible for infringement of any intellectual property rights by Users prior to, during, or following the performance of this Agreement or for Subscriber’s compliance with all applicable Social Media Site terms, conditions and policies.
8.3. Contest Rules Disclaimer. As agreed by the parties, Napkin Labs may provide Subscriber with sample contest rules regarding a Project for Subscriber’s use in describing the Project to Users (“Sample Rules”). Subscriber acknowledges and agrees that any Sample Rules are intended only as a sample document for Subscriber to modify and customize for the applicable Project(s) and for compliance with all applicable laws and all applicable Social Media Site terms, conditions and policies and Subscriber is solely responsible for such modifications and compliance. NAPKIN LABS MAKES NO AND HEREBY DISCLAIMS ANY AND ALL WARRANTIES AND DISCLAIMS ALL LIABILITIES REGARDING THE SAMPLE RULES, INCLUDING WHETHER THE SAMPLE RULES ACCURATELY DESCRIBE ANY PROJECT OR COMPLY WITH ALL APPLICABLE LAWS AND ALL APPLICABLE SOCIAL MEDIA SITE TERMS, CONDITIONS AND POLICIES. SUBSCRIBER ACCEPTS FULL RESPONSIBILITY FOR ANY AND ALL USE OF THE SAMPLE RULES.
9. Indemnification; Limitation of Liability.
9.1. Napkin Labs’ Obligations. Napkin Labs will indemnify and defend Subscriber, and its directors, officers, shareholders and employees from and against any and all claims, losses, damages, expenses, suits, judgments, and costs, including reasonable legal and other professional fees and expenses, arising out of or relating to a claim that the System infringes, misappropriates, dilutes or violates the intellectual property or proprietary rights of a third party.
9.2. Remedies. If the System becomes, or in Napkin Labs’ opinion is likely to become, the subject of an infringement or misappropriation claim, Napkin Labs may, at its sole discretion, and expense: (a) procure for Subscriber the right to continue using the System; (b) replace or modify the System so that it becomes non-infringing or does not use the alleged misappropriated trade secrets; or (c) terminate Subscriber’s right to use the infringing System and give Subscriber a refund or credit for the unused fees actually paid by Subscriber for the infringing components of the System less an allowance for the period of time Subscriber has used the System during the Term. This Section 9 states Customer’s sole and exclusive remedies, and Napkin Lab’s entire liability, for any and all infringement and misappropriation claims and actions.
9.3. Exceptions. Napkin Labs has no obligation with respect to any infringement or misappropriation claim based upon: (a) use of the System in combination with software or equipment not supplied or directed by Napkin Labs if such claim would have been avoided by not combining such use; (b) continued use of the Software or System after Napkin Labs has notified Subscriber in writing that such claim would have been avoided by ceasing such use; or (c) the use of the System in violation of this Agreement, or in a manner for which it was not designed or contemplated, where such claim would have been avoided without such use.
9.4. Subscriber’s Obligations. Subscriber will indemnify and defend Napkin Labs, and its directors, officers, shareholders affiliates, and employees from and against any and all claims, losses, damages, expenses, suits, judgments, and costs, including reasonable legal and other professional fees and expenses, arising out of or relating to: (i) a claim that the Subscriber Materials or the Subscriber Marks infringe, misappropriate, dilute or violate the intellectual property or proprietary rights of a third party; or (ii) a breach of this Agreement by the Subscriber.
9.5. Conditions. Each party’s indemnification obligations under this Section 9 are conditioned on (a) the indemnified party giving prompt written notice of any action to the indemnifying party; (b) the indemnified party giving the indemnifying party sole and exclusive control of the defense of any action, including the choice and direction of any legal counsel, and all related settlement negotiations; and (c) the indemnified party providing the indemnifying party (at the indemnifying party’s expense for reasonable out-of-pocket expenses) assistance, information and authority to perform the above.
9.6. Limitation of Liability. EXCEPT FOR DAMAGES ARISING FROM A BREACH OF THE CONFIDENTIALITY OBLIGATIONS, CLAIMS BASED ON A CLAIM OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, AND THE PARTIES’ RESPECTIVE OBLIGATIONS RELATING TO THE INDEMNITIES SET FORTH IN SECTIONS 9.1 AND 9.4, NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF PROFITS, REVENUE, DATA, OR DATA USE. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, IN SUCH STATES AND JURISDICTIONS, LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. EXCEPT FOR DAMAGES ARISING FROM A BREACH OF THE CONFIDENTIALITY OBLIGATIONS, CLAIMS BASED ON A CLAIM OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, AND THE PARTIES’ RESPECTIVE OBLIGATIONS RELATING TO THE INDEMNITIES SET FORTH IN SECTIONS 9.1 AND 9.4, EACH PARTY’S MAXIMUM LIABILITY FOR ANY DAMAGES UNDER THIS AGREEMENT, WHETHER IN CONTRACT OR TORT, WILL BE LIMITED TO THE AMOUNTS ACTUALLY PAID OR PAYABLE BY SUBSCRIBER TO NAPKIN LABS IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. SUBSCRIBER ACKNOWLEDGES THAT NAPKIN LABS COULD NOT MAKE THE SYSTEM AVAILABLE ON THE TERMS SET FORTH IN THIS AGREEMENT IF NAPKIN LABS’ LIABILITY AND THAT OF THIRD PARTIES WERE NOT LIMITED AS SET FORTH IN THIS AGREEMENT. THE FOREGOING EXCLUSIONS WILL NOT APPLY TO ANY LIABILITY ARISING OUT OF OR IN CONNECTION WITH ANY LIABILITY OF NAPKIN LABS WHICH CANNOT BE EXCLUDED UNDER APPLICABLE LAW.
10.1. Governing Law. This Agreement will be governed and construed in accordance with the laws of the United States and the State of Colorado, excluding its choice of law provisions which would result in application of a different law. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. This Agreement has been written in the English language, and the parties agree that the English version will govern.
10.2. Compliance with Laws. Each party will comply with all applicable laws in connection with their respective rights and obligations under this Agreement.
10.3. Notices. Any notice or communication required or permitted to be given by one party to the other pursuant to this Agreement will be in writing and will be sent by email to Napkin Labs at firstname.lastname@example.org and to Subscriber at the email address set forth on the Order Form.
10.4. Independent Relationship Of The Parties; No Authority to Bind Other Party. The parties are and intend to be independent contractors. Neither party has the authority to bind or commit the other party to any contract or obligation whatsoever, and neither party will represent or hold itself out as having any right or authority to do so.
10.5. Publicity Rights. Unless Subscriber gives Napkin Labs written notice otherwise, (a) Subscriber grants to Napkin Laps the limited right to use Subscriber’s logo in the System, (b) Napkin Labs may publish a press release relating to the relationship between the parties, and (c) Napkin Labs may, subject to the confidentiality obligations of Section 6 use Subscriber Materials in the creation of case studies or similar promotional materials.
10.6. Assignment. Subscriber may not assign, transfer or convey this Agreement (in whole or in part) or any of its rights under this Agreement to any third party without the prior written consent of Napkin Labs and any attempted assignment, transfer or conveyance without such consent will be void and of no force or effect. Napkin Labs may assign this Agreement, together with its rights and obligations under this Agreement, upon written notice to Subscriber, to any entity that purchases substantially all Napkin Labs’ stock or assets or a successor by merger or operation of law, provided the assignor or assignee gives Subscriber prompt written notice of such assignment. The terms, conditions and obligations of this Agreement will inure to the benefit of and be binding upon the parties hereto and their permitted successors and assigns.
10.7. No Waiver. The failure of either party at any time to require performance of any provision of this Agreement or to exercise any right provided for herein will not be deemed a waiver of such provision or such right. All waivers must be in writing. Unless the written waiver contains an express statement to the contrary, no waiver by a party of any breach of any provision of this Agreement or of any right provided for herein will be construed as a waiver of any continuing or succeeding breach of such provision, a waiver of the provision itself, or a waiver of any right under this Agreement.
10.8. Amendments; Severability. Napkin Labs reserves the right, at its sole discretion, to change, modify, add, or delete portions of this Agreement at any time without further notice, provided, that those changes will only have effect upon Subscriber’s renewal or extension of the Term unless Napkin Labs’ changes, modifications, additions, or deletions are solely to: (a) reasonably and in good faith clarify an ambiguous term; (b) reasonably and in good faith cause the terms of this Agreement to be enforceable according to its intent; or (c) comply with a law, rule, regulation, court or arbitrator order, or code. If Napkin Labs makes changes, it will post the changes to this Agreement on this page and will indicate at the top of this page the date these terms were last revised. Subscriber’s renewal, extension of access to or continued use of the System after any such changes constitutes Subscriber’s acceptance of the amended Agreement. If Subscriber does not agree to comply with this or any future or amended Agreement, do not use or access (or continue to use or access) the System. It is Subscriber’s responsibility to regularly check the Site to determine if there have been changes to this Agreement and to review such changes. If any part, term or provision of this Agreement will be held to be illegal or unenforceable it will not affect the validity or enforceability of the remainder of this Agreement and such provision will be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law.
10.9. Entire Agreement. This Agreement incorporates the Order Form and other written agreements entered into between the parties referencing this Agreement, which together constitute the entire and exclusive statement of the mutual agreement and understandings of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement.
10.10. Signature. Subscriber understands and agrees that by submitting an Order Form to Napkin Labs, Subscriber is providing an electronic signature and entering into a legally binding agreement, the equivalent of a signed, written contract, the terms and conditions of which are set forth above.
Version April 6, 2012