Last Updated: March 8, 2024

These Terms of Service (“Terms of Service” or “Terms”) are a legally binding agreement between you (“you” or “your”) and Better Match, (“Bettermatch,” “we,” “our,” or “us”) governing your use of the Service and your relationship with us.You accept and agree to these Terms of Service by:

• Accessing or using the Service;

• Clicking to accept these Terms of Service, or

• Accepting these Terms of Service in any other way.

  
  

‍If you do not agree to these Terms of Service, you shouldn't access (and you don't have our permission to access) the Service.

‍Important: Please note sections 7 and 8 of these Terms which include important information regarding Personal Information you provide to us or receive from us. Please also note section 11, which contains arbitration provisions that impact certain rights you might otherwise have regarding disputes.We may modify these Terms of Service (except for section 11) in our sole discretion by posting updated versions of these Terms of Service on the Website or otherwise providing notice to you. All such changes shall become effective upon the posting of the revised Terms of Service on the Website or upon notice to you, as applicable.

1. Definitions

1. “Account Information” means information provided by you to create, support and maintain an account enabling access to the Service

2. “Better Match Platform” means the software or other technology provided by us to you under these Terms. The Better Match Platform does not include Third-Party Products,

3. “Beta Services” means products, services, integrations, functionality or features that Better Match may make available to you to try at your discretion, which may be described as “alpha,” “beta,” “pilot,” “limited release,” “developer preview,” “non-production,” “early-stage”, or other similar description,

4. “Contributor Database” means the database of Personal Information and other business information which we make available, directly or indirectly, to you and to other Better Match customers through the Better Match Platform,

5. “Deliverable” means any output of the Professional Services that is identified as a Deliverable under an Order Form,

6. “Output Data” means the information and other content or materials that are included in the Contributor Database or otherwise made available to you through the Better Match Platform. Output Data is exclusive of the Submitted Data,

7. “Order Form” means an ordering document, including an order receipt, related to your ordering of the Service and specifying the details of your subscription and any fees to be paid by you,

8. “Personal Information” includes any substantially similar terms to “personal information” such as “personal data” or “personally identifiable information” and as to each, shall have the meaning given to such terms under applicable law,

9. “Professional Services” means the professional services described in an Order Form, including the provision of any Deliverables specified therein,

10. “Service” means the Output Data, the Service Metadata, the Contributor Database, the Better Match Platform, any Professional Services, the Beta Services and any accompanying or related infrastructure, functionality, technology or analytics, including any services or add-ons described in an Order Form,

11. “Service Metadata” means information collected or inferred by us in the course of delivering emails (including without limitation information about deliverability and system operations) or otherwise providing the Service,

12. “Submitted Data” means all data, information, text, recordings, and other content and materials that are collected, submitted, provided, or otherwise transmitted or stored by you in connection with your use of the Service. Submitted Data may vary depending on the products or features used as well as your particular use of such products or features. Submitted Data does not include Output Data or Service Metadata,

13. “Third-Party Products” means products, services, websites, applications or other technology, and any related content, that you choose to integrate with or use in connection with the Service. Third-Party Products are not owned or operated by us,

14. “UK/EU GDPR” means the General Data Protection Regulation (Regulation (EU) 2016/679) and equivalent requirements in the United Kingdom including the Data Protection Act 2018 and the United Kingdom General Data Protection Regulation,

15. “Website” means any website or webpage on which these Terms appear,

    
    

2. Your Account; Eligibility Restrictions; Beta Services; Third-Party Products

1. Account information. You will need to set up an account in order to access the Service, including to receive Output Data. You must only provide Account Information that is your own and that is accurate. You must also keep your contact information up to date, so that we may contact you if needed, such as to deliver any important notices.

   
   

2. Eligibility restrictions. You shall ensure that only your employees or service providers, or the employees or service providers of your wholly or majority owned subsidiaries who have been expressly authorized by you to use the Service in accordance with this Terms of Service, shall use or otherwise access the Service (“Authorized Users”). You may not use the Service if you or any of your Authorized Users are a competitor of Better Match (as determined by us in our sole discretion). You shall ensure that all Authorized Users are at or above the age of majority in their jurisdiction. You must comply with any other eligibility restrictions on Authorized Users set forth in the Order Form and ensure that your Authorized Users comply with these Terms. You acknowledge and agree that you shall be responsible for any actions taken in your account by your Authorized Users and actions taken by your Authorized Users while using your account shall be binding upon you.

   
   

3. Account security. We make no representations or promises regarding the security of the Service. Despite our security efforts, it is possible that unauthorized individuals will obtain your information, such as through web-scraping tools (even though we do not authorize and in fact prohibit that behavior). You agree and understand that you will be liable for any activity that occurs through your account and further acknowledge and agree that you and your Authorized Users:

   1. are solely responsible for maintaining the confidentiality and security of your Account Information and account credentials such as your username and password.

   2. may not share your account credentials and must restrict access to your computer and other devices.

   3. must access the Service and our network, systems, or applications only through encrypted connections.

   4. must maintain up-to-date OS (operating system) patching and active anti-malware on the end-user devices used to connect to the Service or our environment.

   5. must ensure that all terminated employees or other users have their access revoked to the Service within 24 hours of termination.

   6. must notify us promptly (and in any event within 72 hours) of security incidents that could have implications to us (e.g. users with compromised credentials or lost or stolen devices with access to the Service, compromised networks or systems including malware worm or ransomware, etc.).

   7. will reach out to our vulnerability discovery program at support@bettermatch.io if you suspect any vulnerabilities with our Service.

   
   

4. Beta Services. From time to time, Better Match may offer you access to Beta Services, which are optional for you to use. The Beta Services are not made generally available and may contain bugs, errors, defects, or harmful components. Beta Services may be subject to additional terms which may supplement, but not supersede the terms of these Terms of Service. Better Match may terminate access to Beta Services at any time without notice, and may discontinue Beta Services at any time in its sole discretion. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, BETA SERVICES ARE PROVIDED ‘AS IS’ WITHOUT ANY COMMITMENTS, INDEMNITY OR WARRANTY BY BETTER MATCH OF ANY KIND AND BETTER MATCH SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY DAMAGE OR HARM ARISING FROM OR RELATED TO BETA SERVICES.

   
   

5. Third-Party Products. You may procure and use Third-Party Products in connection with the Service. You acknowledge and agree that if you or your users view, access or otherwise interact with Third-Party Products, you or your users, as the case may be, do so at your own risk and we have no liability arising from such access or use. You (and your users, as applicable) are responsible for complying with all terms, conditions and policies imposed by a provider of a Third-Party Product. We cannot guarantee the continued availability of integrations of Third-Party Products with the Service and may cease providing interoperation with a Third-Party Product without entitling you to any refund, credit, or other compensation, if, for example and without limitation, the provider of a Third-Party Product ceases to make the Third-Party Product available for interoperation with the Service in a manner acceptable to us. Providers of Third-Party Products shall not be considered our Subprocessors as defined in the Better Match Data Processing Agreement.

   
   

3. Account Types; Credits and Payment Terms

1. Subscriptions or customized service accounts. We may provide the Service through paid accounts, such as by offering a monthly or annual subscription, or through customized provision of service and payment terms (as further set forth under an Order Form or separate agreement). If you wish to enter into such an agreement, please contact us at support@bettermatch.io.

2. Paid and unpaid self-serve accounts. The Service may also be offered as a paid or unpaid account on a “self-serve” basis, in which case you will have the opportunity to click-through these Terms and select the aspects of the Service you want to use, including an amount of credits that can be used toward the Service. You may not open multiple accounts for your use under a self-serve offering or otherwise take any actions which would allow you to circumvent the credit or rate limits which apply to self-serve offerings. Should we discover you doing so, we may in our sole discretion terminate your account immediately, with no right to refund or reinstatement.

3. Credits and Expiration of Credits. All credits purchased or otherwise obtained by you in connection with your use of the Service are subject to (i) the rules and restrictions hereunder, and (ii) the credit conversion policies found at better.io/pricing/about-credits, if applicable. These credits may not be resold or transferred. Credits have an expiration date. For paid accounts, credits expire at the end of your billing cycle. For unpaid accounts, credits expire at the end of the monthly term. Please do not purchase credits if you are not able to use them prior to their expiration date, as no refunds or extensions will be given. You may not sell or transfer your credits, or purchase credits except directly from us.

4. Fair use policy. We offer unlimited email credit plans for certain paid and unpaid accounts. These plans operate under a fair use policy in order to prevent potential abuse. For non-paying customers using an email address with a valid and verified (by us in our sole discretion) corporate domain, we have implemented an email credit limit on email credits per account per month to prevent abuse. Non-paying customers using an email address without a valid and verified corporate domain have a lower credit limit of email credits per account per month.

5. Payment terms. All paid accounts are subject to the following payment terms unless otherwise expressly set forth in an Order Form:

   1. Fees. You agree to pay us the applicable fees set forth in an Order Form (whether agreed to on paper or digitally), based on the timetable set forth in the Order Form. We may increase or otherwise change the fees at the end of any term set forth in an Order Form, in our sole discretion, by providing you with written notice (which may be by email or another conspicuous method).

   2. Timeline of payment; disputes. Invoices for fees that are payable by ACH (as set forth in an Order Form) must be paid in full in accordance with the payment terms stated in the Order Form. Fees that are payable by credit card (as set forth in an Order Form) must be paid in full upon purchase of the Service. In addition to any other rights it may have hereunder, Better Match retains the right to suspend your access to the Service (or any portion thereof) in the event of any late payments. Unpaid amounts may be subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection (including reasonable attorney’s fees) that we may incur. You must raise any disputes regarding fees within thirty (30) days from receipt of the first applicable invoice by providing a detailed written description of the basis of such dispute. Any disputes not raised within that time period shall be deemed waived, unless otherwise agreed by us in our sole discretion.

   3. Taxes. You are responsible for all taxes (including without limitation sales and use taxes) associated with your use of the Service other than taxes based on our net income. If we believe any such tax applies to your subscription and we have a duty to collect and remit such tax, the same may be set forth on an invoice to you unless you provide us with a valid tax exemption certificate, direct pay permit, or multi-state use certificate, and shall be paid by you immediately or as provided in such invoice.

   4. Subscription seats. Subscriptions are on a per-seat basis, and for a single “seat” or user, unless otherwise indicated in the Order Form. We may permit you, in our discretion, to increase the number of seats licensed to you during a term, in which case we will then begin to charge you at the new per-seat price. While you may (in our discretion) increase the number of seats during a term, you may not decrease the number of seats during a term. Once you increase your per-seat license, you will be charged on that per-seat basis through the remainder of a term. You may not seat-share or time-share. You may only permit one license seat per Authorized User, at any given time.

   5. Refunds and discounts. All payments by you are nonrefundable. You have no right to refunds or credits for partially used Service(s). However, at any time, and for any reason, we may provide you with a refund, discount, or other consideration. The amount and form of such consideration, and the decision to provide it, is at our sole and absolute discretion. The provision of a refund, discount or other consideration in one instance does not entitle you to, or obligate us to provide, a refund, discount or other consideration in the future.

      
      

4. Term; Renewal

Your subscription is for the initial service term as specified in the Order Form and shall be automatically renewed for additional periods of the same duration as the initial service term, unless either party requests non-renewal and/or cancels the subscription (i) at least thirty (30) days prior to the end of the then-current term for annual subscriptions or (ii) prior to 11:59 p.m. Central Time on the day before your next recurring billing date for monthly subscriptions. Subscriptions are non-cancelable during the term specified in the Order Form.

5. Ownership of the Service; Your License to Use the Service

1. Ownership. As between you and us, all rights, title and interest in and to the Service and the Output Data (including, for avoidance of doubt, all Output Data generated or verified in connection with the licenses you grant us in Section 6(b)), including without limitation the patents, copyrights, trademarks, trade names, service marks, trade secrets and other intellectual property rights, and any goodwill associated therewith, are owned by us. For instance, we own any design, compilation or product features inherent in the Service, such as the way that data is organized, curated, presented and delivered, and any know-how or other intellectual property inherent in the way we create, provide, display or make available the Service. These Terms of Service do not grant you any ownership right, title or interest in any of the above. You therefore may not use the Service, including any Output Data, to create any derivative work, service or product, on your own or on behalf of any other organization, and you may not resell or re-license the Output Data in any manner or form.

2. License to you. Subject to your compliance with these Terms and any Order Forms, you are granted a non-exclusive, revocable, non-assignable and non-sublicensable license, throughout the term of your subscription to: (i) use the Service solely for your personal and/or internal business purposes; and (ii) store, print or make a copy of Output Data solely for your personal or internal business purposes.

3. License restrictions. You represent and warrant that you will comply with the following restrictions. Additional rules or policies may be displayed or put in place through the Service, including any portal through which you submit or receive data; those rules or policies are incorporated by reference into these Terms of Service and you agree to adhere to them.

   1. Service restrictions:

      1. You may not resell, distribute or otherwise disclose or make available the Service, including any functionally similar or equivalent version of the Output Data (for instance, “J. Smith, CEO, Acme Fun Products, Inc.” would be a functionally equivalent version of “Jane Smith, CEO and Founder, AFP, Inc.”) (hereinafter the “Resale Restriction”). For the avoidance of doubt, you may contact us if you wish to do the foregoing, in which case we may, in our sole discretion, enter into a separate agreement with you permitting resale.

      2. You may not access the Service, including any functionally similar or equivalent version of the Output Data, on behalf of any third-party entity or organization.

      3. You may not transmit information to or through the Service that is fake or fictitious, impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity in connection with your use of the Service.

      4. You may not develop any service, product, toolset, dataset or derivative work from the Service, whether in aggregated or non-aggregated form, and whether in identified or de-identified form.

      5. You may not reverse engineer, decompile or disassemble the Service (in whole or in part).

      6. You may not access the Service or extract data from the Service in a way that exceeds your authority from us, including but not limited to any rate-limit policies or practices then in place by Better Match, or violates these terms or other policies or restrictions we have implemented (whether such implementation is verbal or technical in nature).

      7. You may obtain Output Data solely through the APIs and interfaces provided by us. You shall not use any other manual or automated means, (including “data scraping,” crawlers or bots) in order to access or obtain the Service.

      8. You may not access any Better Match APIs or Output Data via any Third-Party Product, or use or incorporate any Better Match API credentials into any Third-Party Product, or share any Better Match API credentials with any third parties, unless such access, use or integration has been authorized or approved by Better Match.

      9. You may not leverage, consult with, use, review (in trial, free, or paid form) or rely upon the Service to develop or create a product or feature that is competitive with the Service (or any portion thereof).

      10. You shall comply with the Better Match API Terms at all times when accessing or using any Better Match API.

   2. Restrictions on the use of Output Data: You may not use the Service (including use of the Service to send email, mail, SMS, push notifications, fax phone or other communications):

      1. in a manner that violates any applicable laws (including, without limitation any marketing or data privacy and security laws) or industry best practices or that would cause us to violate applicable law. In particular you agree not to use the Service in a manner that would violate the U.S. CAN-SPAM Act of 2003, the Canadian Anti-Spam Legislation (CASL), the U.S. TCPA, the Telemarketing Sales Rules or any similar such laws.

      2. to advertise or promote any illegal service or product (or send any other communications) that are illegal in the place offered or consumed.

      3. to advertise or promote tobacco products, firearms, ammunition or other weapons, counterfeit or pirated goods or services, adult content or services (such as pornography or escort services), unlicensed gambling, investment schemes (including promotion of “pink slip” stocks), astrology or psychic services, lotteries, credit repair services, payday loan services, or any type of hate speech (targeting any societal group).

      4. to violate any securities or commodities regulations (such as to support a “pump and dump” scheme).

      5. to defraud, deceive, mislead, discriminate against, harass, libel or defame any person, group or entity.

      6. to violate or promote any violation of any person’s or entity’s intellectual property rights.

      7. to threaten, promote or commit violence or fraud, or to violate any person’s or entity’s rights.

   3. Restrictions on use of Email Services: The following are provided as examples of practices which are not permitted from the Service. Such practices will be considered a violation of the license restrictions hereunder. These practices are subject to change.

      1. Sending of emails from a group distribution email such as hello@ or marketing@ etc.

      2. Failing to include appropriate opt out mechanisms in commercial emails or failing to comply with applicable laws or best practices related to opt-outs or user choice and control principles.

      3. Using a fictional identity, pseudonym or alias to send emails.

      4. Sending emails that generate an unacceptable (as determined in our reasonable discretion) level of bounces, spam or complaints

      5. Transmitting material that contains or links to virus, trojan horse, worms or any malicious or harmful software program.

      6. Using our Service in conjunction with any unsolicited or harassing messages (commercial or otherwise) including but not limited to unsolicited emails, text messages or phone calls.

4. Notice of violation; suspension. In the event you are aware of or suspect a violation of these restrictions and policies, please notify us at abuse@bettermatch.io. We will determine compliance with these restrictions at our sole discretion. In the event that we confirm or reasonably suspect that you have failed to comply with these Terms or have otherwise used the Service in an abusive or fraudulent manner or in a manner intended to circumvent our stated policies or rules, we may immediately terminate your access to the Service, and, upon our written demand, you shall cease all use of the Service and the Output Data.

5. Our marks. The Better Match names and logos are trademarks of ours, and may not be copied, imitated or used, in whole or in part, without our prior written permission.

   
   

6. Ownership of the Submitted Data; Our License to Use and Share the Submitted Data

1. Ownership. As between you and us, all right, title and interest in and to Submitted Data is owned by you.

2. The Licenses You Grant To Us. You agree to and hereby do grant us a license to:

   1. host, access, copy, use, transfer, and process the Submitted Data for the purpose of providing, developing and improving the Service and supporting you under these Terms.

   2. analyze Submitted Data, including through the use of techniques such as machine learning, in order to provide, develop and improve the Service. For the avoidance of doubt, you retain all ownership of Submitted Data and we retain all ownership in and to all system performance data, machine learning algorithms, and aggregated results of such machine learning.

   3. use the Submitted Data in order to grow, enrich and verify the Output Data included in the Contributor Database; provided that we will not publicly refer to or associate you with any such Submitted Data.

   4. use, share, sublicense, display, copy, publish and distribute the Submitted Data in aggregated, de-identified form for any purpose, in any medium.

   5. The foregoing license grants to us shall be worldwide, non-exclusive, irrevocable, perpetual and royalty-free. We shall have the right to sublicense, assign, or transfer such licenses at our discretion.

3. The Representations You Make To Us. You represent and warrant that:

   1. you have all necessary rights, permissions, and authority to provide and license the Submitted Data to us (in whole and in part) for our use as described hereunder, and that doing so will not put you in violation of any contracts you have signed or any laws.

   2. the Submitted Data is true, accurate, and of living persons and does not contain any sensitive information or sensitive Personal Information, including any information about individuals under the age of 18.

   3. providing the Submitted Data to us does not violate the U.S. HIPAA law: for instance, it is not (in whole or in part) a list of hospital or doctor's patients, or a similar dataset consisting of patients or clients of an entity subject to HIPAA (this might include, for instance, a doctor, dentist, chiropractor, acupuncturist, pharmacist or other health professional). Similarly, you agree not to provide us with Submitted Data consisting of a list of clients of an entity covered by the GLBA, which applies to many types of financial institutions including banks, hedge funds, investment advisers and insurance companies.

      
      

7. Required Consumer Consents and Permissions; Your Responsibilities

1. Responsibility for your use of Output Data. You acknowledge and agree that you are solely responsible and liable for your use of the Output Data and any communications made in connection with your use of the Output Data.

2. Notice and consent. You acknowledge that in some countries, U.S. states or other jurisdictions, you may be required to obtain consent, provide notice or complete some other action in order to lawfully conduct certain types of marketing activities or processing of Personal Information. You understand that we have not provided any notices nor obtained any rights or consents on your behalf. Therefore, to the extent that any law or regulation may require that you provide notice, obtain consent or complete some other action in order to lawfully market to any person or process their Personal Information, you represent and warrant that you shall obtain such notices or consents or otherwise complete such action on your own behalf.

3. Legal bases for processing. In connection with the Services, you may access, receive or otherwise process Output Data which is subject to various privacy and security laws governing Personal Information such as the UK/EU GDPR. If you do so, you agree that you will only access, use or otherwise process such Output Data:

   1. pursuant to explicit consent from the data subject of the Output Data, sufficient to comply with the consent requirements of applicable laws, or

   2. pursuant to any other legal basis (or substantively similar term) for processing under applicable law. For example, in accordance with the EU/UK GDPR, you may use Output Data for purposes that you have established are necessary to pursue your legitimate interests under the EU/UK GDPR, such as use of the Output Data in order to perform reasonable and actual data validation or hygiene or updating of your own legally obtained customer database.

4. Compliance with law. You shall comply with all laws applicable to your use of the Service. Notwithstanding anything herein (including any permissions granted by us herein), you are solely responsible for your own understanding of, and compliance with, all applicable laws. We make no representation (and you should not rely on any representation by us) regarding what applicable law might or might not require (including with respect to data subject notices, consents and permissions).

   
   

8. Data Privacy and Security

1. Data Processing Agreement. The Better Match Data Processing Agreement is hereby incorporated by reference into these Terms. The parties shall comply with the terms of the Better Match Data Processing Agreement as it relates to all processing of Personal Information in connection with these Terms.

2. Privacy Policy. You acknowledge the collection, use, disclosure and other handling of information, including Personal Information, described in our Privacy Policy, which we may update from time to time.

3. Nature of Exchange. Our Service contains certain “co-operative” elements. This means that in exchange for providing the Submitted Data to us for use as described in Section 6(b) above, and potentially for the use of other customers through our Contributor Database (at our sole discretion), you will receive access to Output Data consisting of information that we hope is equally valuable to you. This in turn may amount to a “sale” of Personal Information under certain state statutes, and (depending whether you are subject to those statutes, which may depend upon your size or the nature of your business) such “sale” of information may require you to make certain disclosures or provide certain consumer “opt out” or other rights. We may in turn provide you with materials or recommendations regarding these requirements: if we do so, you understand that these are purely advisory in nature and are neither legal advice nor a substitute for legal advice. You therefore should consult counsel regarding requirements you may have under any such applicable law.

   
   

9. Disclaimers

YOUR USE OF THE SERVICE IS AT YOUR OWN RISK. THE SERVICE (AND ALL OUTPUT DATA PROVIDED THEREIN) ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE DISCLAIM ALL WARRANTIES AND REPRESENTATIONS, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES (1) OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (2) OF INFORMATIONAL CONTENT OR ACCURACY, (3) OF NON-INFRINGEMENT, (4) OF PERFORMANCE, (5) OF TITLE, (6) THAT THE SERVICE WILL OPERATE IN AN ERROR FREE, TIMELY, SECURE, OR UNINTERRUPTED MANNER, IS CURRENT AND UP TO DATE AND ACCURATELY DESCRIBES ANYTHING, OR IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, (7) THAT ANY DEFECTS OR ERRORS IN THE SERVICE WILL BE CORRECTED, (8) THAT THE SERVICE IS COMPATIBLE WITH ANY PARTICULAR HARDWARE OR SOFTWARE PLATFORM, OR (9) THAT WE WILL ENFORCE THE TERMS OF SERVICE AGAINST OTHERS TO YOUR SATISFACTION. EFFORTS BY US TO MODIFY THE SERVICE SHALL NOT BE DEEMED A WAIVER OF THESE LIMITATIONS OR ANY OTHER PROVISION OF THESE TERMS OF SERVICE. Some jurisdictions limit or do not allow the disclaimer of implied warranties. In such states, these warranties will be disclaimed only to fullest extent permitted by law.

10. Limitation of Liability

APART FROM CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREIN OR YOUR BREACH OF SECTION 5 HEREIN, NEITHER PARTY (NOR ITS RESPECTIVE OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, REPRESENTATIVES, AFFILIATES, PARENTS, SUBSIDIARIES, SUBLICENSEES, SUCCESSORS AND ASSIGNS, INDEPENDENT CONTRACTORS, AND RELATED PARTIES) SHALL BE LIABLE TO THE OTHER PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF DATA, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICE OR WITH THE DELAY OR INABILITY TO USE SAME, OR FOR ANY BREACH OF SECURITY, OR FOR ANY CONTENT, PRODUCTS, AND SERVICES OBTAINED THROUGH OR VIEWED ON THE SERVICE, OR OTHERWISE ARISING OUT OF THE USE OF SAME, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY, REGULATION, COMMON LAW PRECEDENT OR OTHERWISE, EVEN IF THE RESPECTIVE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES AND EVEN IF SUCH DAMAGES RESULT FROM A PARTY’S ENTITY’S NEGLIGENCE OR GROSS NEGLIGENCE.

IN NO EVENT SHALL OUR AGGREGATE LIABILITY FOR ANY CLAIM UNDER OR RELATING TO THESE TERMS OR THE SERVICE EXCEED THE TOTAL OF THE AMOUNT PAID BY YOU TO US DURING THE 12 MONTHS PRIOR TO THE DATE ON WHICH THE CLAIM AROSE.

ADDITIONAL DISCLAIMERS FROM US MAY APPEAR WITHIN THE SERVICE AND ARE INCORPORATED HEREIN BY REFERENCE. TO THE EXTENT ANY SUCH DISCLAIMERS PLACE GREATER RESTRICTIONS ON YOUR USE OF THE SERVICE OR THE MATERIAL CONTAINED THEREIN, SUCH GREATER RESTRICTIONS SHALL APPLY.

Some jurisdictions restrict or do not allow some of the foregoing limitations of liability in contracts, and as a result the contents of this section may not apply to you. In cases where such laws apply, our liability shall be limited to the fullest extent permitted by law.

11. Arbitration, Class Action Waiver and Applicable Law

PLEASE READ THIS SECTION CAREFULLY. IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS.

1. Arbitration and class-action waiver.

   1. Federal Arbitration Act. You agree that these Terms of Service affect interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions.

   2. Initial Dispute Resolution. Most disputes can be resolved without resorting to litigation. You and we agree to use reasonable efforts to settle any dispute or claim, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration, other than lawsuits or arbitration for injunctive relief from alleged intellectual property infringement. To commence this procedure, you agree to contact our support department at support@bettermatch.io, or we may contact you using the last available information we have for you.

   3. Binding Arbitration. If we do not reach an agreed-upon solution within a period of ten (10) days from the time informal dispute resolution is initiated under the Initial Dispute Resolution provision above, then we both agree to resolve by arbitration any and all controversies, claims, or disputes arising out of, relating to, or resulting from (1) your relationship with the us, (2) these Terms of Service, (3) any other aspect of the Service. These Terms of Service are intended to require arbitration of every claim or dispute that lawfully can be arbitrated, except for those claims and disputes which by the terms of these Terms of Service are expressly excluded from section 11.

   4. Governing Arbitration Rules. All claims subject to arbitration shall be finally settled by binding arbitration administered by JAMS in accordance with the JAMS rules in effect at the time the arbitration is initiated, excluding any rules or procedures that would permit class actions or other representative actions. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of these Terms of Service including but not limited to any claim that all or any part of these Terms of Service (such as this section 11) is void or voidable, or whether a claim is subject to arbitration, except that the arbitrator shall have no authority to find that a claim may proceed on a class basis or as part of another representative action: only a court may address disputes regarding the validity or enforceability of the Class Action Waiver section below, section 11(A)(v). The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written and shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. To start an arbitration, unless there are conflicting rules at www.jamsadr.com, you must do the following: (A) Write a Demand for Arbitration that includes a description of the claim and the amount of damages you seek to recover. You may find a copy of a Demand for Arbitration at www.jamsadr.com; (B) Send three copies of the Demand for Arbitration, plus the appropriate filing fee, to JAMS, Two Embarcadero Center, Suite 1500, San Francisco California 94111; and (C) Send one copy of the Demand for Arbitration to us at 440 N Barranca Ave #4750, Covina, CA 91723. To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, we will pay the additional cost. If the arbitrator finds the arbitration to be non-frivolous, we will pay all of the actual filing and arbitrator fees for the arbitration, provided your claim does not seek more than $75,000. The arbitrator shall have the power to award any remedies available under applicable law, and the arbitrator shall award attorneys’ fees and costs to the prevailing party, except as prohibited by law. The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court. If you are a resident of the United States, arbitration may take place at any reasonable location within the United States convenient for you. For residents outside the United States, arbitration shall be initiated in San Francisco County, California, United States of America, and you and we agree to submit to the personal jurisdiction of any court in San Francisco County, California, in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.

   5. Class Action Waiver. The parties agree that the arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action, seek relief on a class basis, or join or serve as a member of a class action. YOU AND BETTER MATCH AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR OUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If for any reason the proper decisionmaker determines that the waiver of class and representative actions set forth in this paragraph is void or unenforceable or that an arbitration can proceed on a class or representative basis, then section 11(A) and section 11(B) shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes.

   6. 30-Day Right to Opt Out. You have the right to opt out and not be bound by this version of section 11 by sending written notice of your decision to opt out to support@bettermatch.io with the subject line, “ARBITRATION AND CLASS ACTION WAIVER OPT-OUT.” The notice must be sent within thirty (30) days of the first date that you agree to any version of these Terms of Service that contains this version of section 11. If you do not opt out, you will be bound to arbitrate disputes in accordance with the terms of this section 11. You have the right to consult with counsel of your choice concerning this section 11. You understand that you will not be subject to retaliation if you exercise your right to opt out of coverage under this section 11. If you opt out of section 11, we also will not be bound by it in disputes with you.

   7. Changes to this Section. We will provide (60) days notice of any changes to this section. Changes will become effective on the sixtieth (60th) day, and will apply prospectively only to claims arising after the sixtieth (60th) day. If a court or arbitrator (in either case, with the authority to make such decision) decides that this subsection on “Changes to This Section” is not enforceable or valid, then this subsection shall be severed from Section 11 and the court or arbitrator shall apply the first Arbitration and Class Action Waiver section you agreed to.

   8. Survival. This section 11 shall survive any termination of these Terms of Use.

2. Limitations to this agreement to arbitrate. This section (Arbitration and Class Action Waiver) shall be limited as follows:

   1. Intellectual Property Claims. Notwithstanding the parties’ decision to resolve all disputes through arbitration, either Party may bring an action on an individual (not class or representative action) basis in state or federal court or in the U.S. Patent and Trademark Office to protect its patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights.

   2. Small Claims Court. Notwithstanding the parties’ decision to resolve all disputes through arbitration, either Party may seek relief in a small claims court on an individual (not class or representative action) basis for disputes or claims within the scope of that court’s jurisdiction.

3. Applicable Law. The Terms of Service and the relationship between us shall be governed in all respects by the laws of the State of California, without regard to its conflict of law provisions. Any claim or dispute either of us may have against the other that is not subject to arbitration must be resolved by a court located in San Francisco County, California (or by a small claims court located elsewhere in the United States when section 11(b)(ii) applies). We both agree to submit to the personal jurisdiction of the courts located within San Francisco County, California (or a small claims court located elsewhere in the United States when section 11(b)(ii) applies), for the purpose of litigating all such claims or disputes that are not subject to arbitration.

   
   

12. Indemnification

You agree to indemnify, defend and hold us, our affiliates, directors, officers, employees, contractors and agents, and our suppliers, licensors, and service providers harmless from and against any actual or threatened loss, liability, claim, demand, damages, costs or expenses, including reasonable attorneys’ fees and expenses (collectively, “Claims”), arising out of or in connection with: (1) Your use of the Service; (2) Your breach of these Terms of Service; (3) Your violation of any applicable law or rights held by any third party; or (4) the Submitted Data.

We will have the right, but not the obligation, to participate through counsel of our choice in any defense by you of any Claims as to which you are required to defend, indemnify, or hold us harmless. You may not settle any Claims in a manner that may impose any obligation upon us, without our prior written consent. The members of our corporate family, and its agents, partners, employees, contractors and advertisers, are third-party beneficiaries of this paragraph. Other than such parties, there are no other third-party beneficiaries of the Terms of Service. Should you not in a timely manner agree to indemnify and defend us upon our notice to you of a covered Claim, we may retain our counsel, for whose reasonable fees you shall be liable, and we may settle any such Claim, for which you likewise shall be liable.

13. Changes to the Service

We may change the features and functionality of the Service at any time. This may include adding, modifying or removing any features or functionality of the Service or altering the amount of Output Data or other access we provide. The Terms of Service will apply to any changed version of the Service. We may also suspend or stop the Service altogether. In addition, we may impose or alter fees for new or existing aspects of the Service, including updating our credit conversion policies at any time.

14. Confidentiality

1. Confidential Information. From time to time under these Terms, either Party (the “Disclosing Party”) may disclose or make available to the other Party (the “Receiving Party”), non-public, proprietary, or confidential information of Disclosing Party that is clearly designated by Disclosing Party as confidential or which Receiving Party should reasonably understand Disclosing Party would expect to be treated as confidential (collectively “Confidential Information”); provided, however, that Confidential Information does not include any information that: (i) is or becomes lawfully and generally available to the public other than as a result of Receiving Party’s breach of this section 14 or any other duty or obligation of confidentiality owed to the other Party, (ii) is or becomes available to Receiving Party on a non-confidential basis from a third-party source, provided that such third-party is not and was not prohibited from disclosing such Confidential Information, (iii) was in Receiving Party’s possession prior to Disclosing Party’s disclosure hereunder as evidenced by its records, or (iv) was or is independently developed by Receiving Party without using any Confidential Information. Without limitation, the ”Output Data” is Better Match’s Confidential Data.

2. Obligations. Receiving Party will: (i) protect and safeguard the confidentiality of Disclosing Party’s Confidential Information with at least the same degree of care as Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care, (ii) not use Disclosing Party’s Confidential Information, or permit it to be used, for any purpose other than to exercise its rights or perform its obligations under these Terms, and (iii) not disclose any such Confidential Information to any person or entity, except to Receiving Party’s employees, agents, contractors, attorneys or representatives (“Representatives”) acting in the course of their obligations and rights hereunder.

3. Required Disclosure. If Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it will, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party’s sole cost and expense, a protective order or other remedy and Receiving Party must only disclose or furnish that portion of Confidential Information as such Receiving Party or the applicable Representative is legally obligated or compelled to so produce or disclose.

4. Return or Destruction. At the Disclosing Party’s request, the Receiving Party will return or destroy any Confidential Information Receiving Party obtained from the Disclosing Party. However, nothing contained herein will be construed to prohibit Receiving Party from retaining electronic information maintained in compliance with its digital data retention and automated backup procedures provided that; such Confidential Information will remain subject to the confidentiality obligations set forth herein.

5. Remedies. In the event of a breach of this section 14, the Receiving Party understands and agrees that direct money damages may not be an adequate remedy for any breach of these Terms by it and that the Disclosing Party may be entitled (without exclusion of other remedies herein) to seek specific performance and injunctive or other equitable relief as a remedy for any such breach. The Receiving Party further agrees to waive any requirement for the Disclosing Party to secure or post any bond in connection with such remedy.

6. Conflicting Obligations. The provisions of this section 14 supersede and replace in whole any previous confidentiality, non-disclosure or similar agreement between the Parties.

   
   

15. Equitable Relief

In the event of a breach of the Resale Restriction in section 5, the Parties agree that money damages may not be an adequate remedy. Accordingly, in the event of such breach, you agree that we will be entitled (without exclusion of other remedies herein, including monetary remedies) to seek specific performance and injunctive or other equitable relief as a remedy for any such breach, including disgorgement of profits. You further agree to waive any requirement that Better Match secure or post any bond in connection with such remedy. You further agree that should we prevail in a suit in which we assert violation of the Resale Restriction, you will pay our reasonable attorneys’ fees and costs, including costs of investigation.

16. Miscellaneous

1. Complete Agreement and Understanding. These Terms of Service are the entire and exclusive understanding and agreement between us and you regarding the Service as well as the Submitted Data.These Terms supersede and replace any and all prior oral or written understandings or agreements between us and you regarding such topics (including, with respect to the subject matter hereof, any non-disclosure or confidentiality agreement previously entered into between us), provided that any modification in an Order Form shall govern and supersede any conflicting provision in these Terms.

2. Our Relationship With You. The relationship between you and us is that of independent contractors, and nothing in these Terms of Service shall be construed to create or imply any other relationship (such as a partnership or an employer/employee or agency relationship).

3. Assignment. We may assign these Terms at our discretion. You may not assign, sublicense or transfer these Terms (or our license grant to you herein) in whole or in part to anyone else.

4. Severability. If any provision of these Terms is determined by a court to be invalid, illegal or unenforceable, that determination will not affect the validity or enforceability of the remaining provisions of the Terms, and each provision shall be considered as separate, severable and distinct from each other.

5. Waiver. If we (or you) don't enforce any part of these Terms, it won't be considered a waiver. No waiver of any obligation or right of either party shall be effective unless in writing, executed by the party against whom it is being enforced.

6. Notice. Legal notices to us (including but not limited to termination notices) must be sent to support@bettermatch.io or Better Match Inc. 11801 Domain Blvd 3rd Fl Austin, TX 78758. We will send legal notices to you via a method of our choosing that is reasonably intended to provide such notice to you, including without limitation via the Service or to the email or other address you have provided to us.

1. Termination.

   1. Termination for cause. In addition to any other remedies it may have, either party may terminate these Terms, effective immediately, if (A) the other party breaches these Terms and fails to cure such breach within thirty (30) days of its receipt of a written notice identifying the breach in reasonable detail (or ten (10) days in the case of non-payment), or (B) subject to applicable law, upon the other party’s liquidation, commencement of dissolution proceedings or assignment of substantially all of its assets for the benefit of creditors, or if the other party becomes the subject of bankruptcy or similar proceeding that is not dismissed within sixty (60) days. If the Agreement is terminated as a result of a material breach by you, then you shall pay in full all remaining fees payable through the remainder of any outstanding Order Form; or if you have prepaid any fees, then those fees are nonrefundable.

   2. Termination for convenience. In addition to the right to terminate for cause, (a) for paid subscriptions, we may terminate these Terms for convenience by providing you at least thirty (30) days' prior written notice; and (b) for unpaid accounts only, either party may terminate these Terms, effective immediately, by providing the other party written notice. For paid subscriptions, you will pay in full for the Service up to and including the last day on which the Service is provided.

   3. Effect of termination. If these Terms terminate, you will no longer be authorized to access the Services (except as provided under section 4 hereunder).

   4. Inactivity. For non-paying customers, if there is no activity in your account for six (6) months or more, Better Match reserves the right to deactivate your account, delete data from your account and/or restrict access to certain functionality in your account, at Better Match's sole discretion.

   5. Survival. Sections 1 and 5-12, 14-16 of these Terms will survive termination.

2. Force Majure. We will not be deemed responsible or liable for any failure to perform or delay in performance under these Terms (or any Order Form) where such delay or failure is beyond our control, including, without limitation, where caused by strikes or labor disputes, internet or telecommunications failures, shortages of or inability to obtain labor, energy, or supplies, war, terrorism, riot, acts of God or governmental action, natural disasters including floods, earthquakes and hurricanes, acts by hackers or other malicious third parties and problems with the Internet generally, and such performance shall be excused to the extent that it is prevented or delayed by reason of any of the foregoing.

3. Export Restrictions. You must not access or use the Service: (i) in or relating to any country or territory that is the subject or target of comprehensive trade or economic sanctions imposed by the U.S. government (“Sanctions”) (currently, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, the so-called Donetsk People's Republic, and the so-called Luhansk People's Republic); (ii) for the benefit or on behalf of any person listed in any Sanctions-related list of designated persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”) or the U.S. Department of State (including OFAC' s List of Specially Designated Nationals and Blocked Persons), or any person owned 50 percent or more by such person; or (iii) otherwise in violation of any U.S. Sanction, embargo, prohibition or restriction. In addition, you must comply with all applicable laws and regulations governing the export, re-export and transfer of the Service and you are responsible for obtaining any required export or import authorizations.

4. Monitoring. We, or service providers working with us, may monitor the Service for any legitimate business purpose, including to monitor compliance with these Terms or evaluate how the Service is being accessed and used. We will be the sole and final arbiter as to whether the Service is being misused or these Terms are being violated. If we believe you have violated these Terms (or any law) we may terminate your account and access to the Service immediately and without notice. In such a situation we also may seek civil, criminal or injunctive relief, at our sole discretion and without obligation, to enforce this Terms of Service and the law.