Terms of Service

Version: 1.0 Last updated: 19 June 2026 Effective date: upon Customer's acceptance

These Terms are a binding legal document. Each party should obtain its own legal advice before accepting.

These Terms of Service (the "Terms") form a binding contract between OMESTA SYSTEMS LLC, a Wyoming limited liability company with its principal place of business at 5830 E 2nd St, Ste 7000 #33555, Casper, Wyoming 82609, United States, which operates the Hyper Tracking service ("Hyper Tracking", "we", "us", "our"), and the entity that accepts these Terms ("Customer", "you", "your"). The individual accepting these Terms on behalf of an entity represents that they have authority to bind that entity. If they do not, they may not use the Service.

By clicking "I agree" at signup, signing an Order Form that references these Terms, or using the Service, you accept these Terms.

If you do not agree, do not use the Service.

1. Definitions

• "Service" — the Hyper Tracking ad-attribution platform, including the central API, the dispatch and per-merchant Workers we operate on Cloudflare, the dashboard at app.hypertracking.io, our marketing site, and all software and documentation we provide.
• "Customer Data" — data that Customer (or its end users) submits to, or that the Service collects from Customer's website on Customer's behalf, including the personal data described in the DPA. Customer Data does not include aggregated, de-identified, or statistical data derived from Customer Data and combined with data from other customers.
• "Documentation" — the technical documentation we publish at hypertracking.io/docs, including the Data Boundary policy referenced in § 4.4 below.
• "DPA" — the Data Processing Agreement between us, available at hypertracking.io/legal/dpa and incorporated into these Terms.
• "Order Form" — an ordering document specifying plan, fees, and term, signed by both parties (or a click-through plan selection in the dashboard, which is treated as an Order Form for the chosen plan).
• "Affiliates" — entities that control, are controlled by, or are under common control with a party, where "control" means majority ownership.
• "Confidential Information" — see § 10.
• "End User" — a visitor to a Customer's website whose data is processed by the Service on Customer's behalf.

2. The Service

2.1 Grant

Subject to these Terms and Customer's payment of fees, Hyper Tracking grants Customer a worldwide, non-exclusive, non-transferable, non-sublicensable right during the Term to access and use the Service for Customer's internal business purposes.

2.2 What the Service does, in plain language

The Service performs server-side ad attribution for Customer's website. Depending on the install shape Customer selects, the Service runs as a server-side proxy in front of Customer's website (Customer points a CNAME record at our edge), as an edge module or backend SDK Customer runs in its own infrastructure, or as a first-party pixel. In each case the Service captures marketing click identifiers, sets first-party cookies on Customer's domain, logs visits, ingests purchase webhooks from Customer's commerce platform, builds an identity graph, and pushes conversion events to ad platforms that Customer authorizes us to use.

The full data flow is described in the DPA, the Privacy Policy, and the Documentation. The contractual data-handling boundary is described in § 4.4.

2.3 What the Service is not

• Not a payment processor. We do not handle card data. Stripe and Customer's commerce platform do.
• Not a tax-compliance product. We do not advise Customer on its sales- tax, VAT, or revenue-recognition obligations.
• Not a CRM. We do not store contact lists or send marketing emails on Customer's behalf.

2.4 Updates and modifications

We may update the Service from time to time. Updates that materially reduce the security, availability, or core functionality of the Service are governed by § 16.2 (Material change notice). Routine updates, security patches, and additive features may be deployed at any time.

2.5 Beta features

We may offer features designated "Beta", "Preview", or similar. Beta features are provided "AS IS", may be modified or discontinued at any time without notice, and are excluded from the SLA in § 7. Customer's use of Beta features is voluntary.

3. Account, access, and credentials

3.1 Account creation

Customer is responsible for maintaining the confidentiality of all account credentials, including dashboard passwords, API tokens, and the Stripe / Shopify / ad-platform secrets that Customer uploads or authorizes via OAuth. Customer must promptly notify us of any unauthorized use of its account.

3.2 Authorized users

Customer may permit its employees, contractors, and Affiliates ("Authorized Users") to use the Service on its behalf. Customer is responsible for each Authorized User's compliance with these Terms.

3.3 OAuth and third-party connections

When Customer connects an ad platform (Meta, Google, TikTok, LinkedIn, Microsoft, etc.) or a commerce platform (Shopify, Stripe, etc.) via OAuth or API token, Customer grants us the access scope necessary to operate the Service. Customer represents that it has authority to grant that access. Customer can revoke access at any time in the dashboard or in the connected platform's UI.

4. Customer responsibilities

4.1 Lawful basis and consent

Customer is the Controller (under GDPR) and Business (under CCPA/ CPRA) for End User data processed via Customer's website. Customer is responsible for:

• Establishing a lawful basis for processing each category of End User data (typically consent for cookies in EU jurisdictions, legitimate interest plus an opt-out for measurement in many U.S. states, etc.).
• Providing notice to End Users in Customer's own privacy policy. We publish copy-paste clauses Customer may use as a starting point in Privacy Policy Appendix B.
• Operating a consent banner or consent-management platform (CMP) that signals consent state to the Service via the cookie / value configured per merchant. The Service reads that signal and fail-closes in the EU when consent is not signaled; the Service does not display a consent banner of its own.

4.2 Customer-provided integrations

Customer's Stripe / Shopify / ad-platform accounts must comply with the respective providers' terms. We are not responsible for actions those providers take against Customer's account on those platforms.

4.3 Acceptable use

Customer must not, and must not allow Authorized Users or End Users to:

(a) reverse engineer, decompile, or disassemble the Service except to the extent expressly permitted by applicable law; (b) bypass any technical limitation, rate limit, or security control; (c) use the Service to transmit malware, conduct denial-of-service attacks, or interfere with the Service's operation; (d) use the Service for activity that violates applicable law (including privacy law, anti-spam law, advertising law, sanctions law, export control law); (e) use the Service to track End Users in ways that the applicable privacy notice and consent did not disclose; (f) submit or proxy through the Service the personal data of children under 13 (US) / 16 (EU default) without verifiable parental consent; (g) submit Special Categories of personal data under GDPR Art. 9 (race, religion, health, sex life, biometric, genetic, political opinions, trade-union membership) into Customer's checkout or any field the Service is configured to read; (h) submit Protected Health Information (PHI) under HIPAA; (i) submit primary account numbers (PANs), card-verification values (CVV), or other PCI-DSS-scoped data into any Service field. The Service is not a PCI-DSS-compliant environment and is not designed to handle cardholder data. Stripe / commerce-platform checkout pages remain in scope; the Service proxies them but does not read card fields. Customer's checkout form must not place a credit-card number, expiry, or CVV in a field whose name appears on the email-allowlist in the Data Boundary policy, and Customer must not submit cardholder data into any custom integration with the Service. (j) use the Service to enable activities prohibited by U.S. OFAC sanctions or comparable law (including providing the Service to persons resident in or organizations established in Cuba, Iran, North Korea, Syria, the Crimea / Donetsk / Luhansk / Zaporizhzhia / Kherson regions, or Russia / Belarus, or to any SDN-listed person); (k) resell, sublicense, white-label, or commercially provide the Service to a third party, except via an Authorized User of Customer or an Affiliate, or under a separate written reseller or agency addendum signed by us.

4.4 Data Boundary

The Service operates within the data-handling boundary described in the public Documentation at https://hypertracking.io/docs/data-boundary. That boundary defines the read-allowlist of click IDs, UTM parameters, our _ht_id cookie, the checkout email field, and a small number of Cloudflare-provided headers, and it lists explicitly the categories of fields the Service will not read. Customer is entitled to rely on the Data Boundary as a contractual commitment of how the Service handles data.

If a future version materially expands what the Service reads from Customer's website, we will notify Customer at least 30 days in advance per § 16.2 and Customer may opt out of the change.

4.5 No use of the Service to circumvent its purpose

Customer must not use the Service to evade tracking-prevention technologies in browsers (e.g. Apple's ITP, Mozilla's ETP) in a way inconsistent with the consent state of the End User, nor to set first- party cookies that the End User has refused via a consent banner or CMP.

5. Fees, taxes, and payment

5.1 Fees

Fees are stated in the Order Form or, for self-serve customers, on the pricing page in effect at the time of subscription. Fees are payable in U.S. Dollars unless an Order Form states otherwise.

5.2 Billing cycle

We bill in advance on the cycle stated in the Order Form (typically monthly or annual). Annual subscriptions are paid in full at the start of the term unless an Order Form states otherwise.

5.3 Usage-based fees

Where the plan includes a usage-based component (e.g. fees that scale with tracked ad spend above a tier threshold), we measure usage in arrears and bill the overage on the next invoice. We provide a usage dashboard in real time; disputes about metered usage must be raised within 30 days of the invoice date or are deemed waived.

5.4 Taxes

Fees are exclusive of all taxes. Customer is responsible for sales, use, value-added, and similar taxes, except for taxes on our net income. If we are obligated to collect tax, we will add it to the invoice.

5.5 Late payment

Invoices are due on receipt unless an Order Form states otherwise. Amounts not paid within 30 days of the due date accrue interest at 1.5% per month or the maximum permitted by law, whichever is lower. We may suspend the Service after 30 days of non-payment with 7 days prior notice (§ 6.6).

5.6 Price increases

We may increase fees no more than once in any 12-month period and only on at least 60 days' written notice prior to the next renewal. The increase applies to the next renewal term, not the current term.

5.7 Disputed amounts

Customer must notify us in writing of any disputed amount within 30 days of the invoice date. Undisputed amounts must be paid by the due date. Disputed amounts will be resolved in good faith.

6. Term and termination

6.1 Term

These Terms begin on the effective date and continue until terminated. Each Order Form specifies its own subscription term.

6.2 Renewal

Order Forms renew automatically for successive terms equal to the initial term unless either party gives written non-renewal notice at least 30 days before the end of the then-current term.

6.3 Termination for cause

Either party may terminate these Terms or any Order Form for cause:

(a) on 30 days' written notice of a material breach by the other party, if the breach is not cured within the 30-day notice period; (b) immediately on written notice if the other party becomes insolvent, files for bankruptcy, makes an assignment for the benefit of creditors, or has a receiver appointed for substantially all of its assets.

6.4 Termination for convenience

Customer may terminate any Order Form for convenience by giving us 30 days' written notice. Pre-paid fees for the unused portion of the term are non-refundable unless we terminate Customer for our convenience (in which case we refund pro-rata).

We may terminate any Order Form for convenience by giving Customer 60 days' written notice and a pro-rata refund of pre-paid fees.

6.5 Effect of termination

On termination:

(a) Customer's right to access the Service ends. (b) We delete or return Customer Data per the DPA's exit clause — Customer has 30 days from termination to download an export from the dashboard, after which we delete Customer Data within 60 days, subject to legal retention obligations and the backup-persistence schedule described in DPA § 10.3. (c) Sections that by their nature should survive termination (Confidentiality § 10, Liability § 13, Indemnity § 12, IP § 9, Disputes § 17, Survival § 21.10) survive. (d) Termination does not relieve Customer of its obligation to pay accrued fees.

6.6 Suspension

We may suspend Customer's access to the Service immediately, with notice where practicable, if:

(a) Customer's use poses a security risk to the Service or to other customers; (b) Customer is in material breach of § 4.3 (Acceptable use); (c) we are legally required to do so; (d) Customer is more than 30 days past due on an undisputed invoice (with the 7 days' prior notice required by § 5.5).

We will limit suspensions to the scope and duration reasonably necessary, and we will lift a suspension promptly once the cause is resolved.

7. Service level agreement (SLA)

7.1 Uptime commitment

We target 99.9% monthly uptime for the central API (/ingest and webhooks) and the dashboard. We do not offer an uptime SLA on the per-merchant thin Workers, because by design they fail through to the origin (the passThroughOnException + dispatch-fallback pattern means the merchant's site stays up even if the thin Worker errors).

7.2 Definitions

• "Uptime" — the percentage of minutes in a calendar month during which the central API responds successfully (HTTP 2xx or 3xx) to synthetic health-check probes from at least two independent regions.
• "Downtime" — minutes during which the central API is unavailable, excluding the exclusions in § 7.4.

7.3 Service credits

If monthly Uptime falls below 99.9%, Customer is entitled to the following service credit, applied as a discount on the next invoice:

To claim a credit, Customer must email billing@hypertracking.io within 30 days of the end of the affected month.

Service credits are Customer's sole and exclusive remedy for availability shortfalls. Maximum credit per month is 50% of that month's fee.

7.4 SLA exclusions

The following do not count as Downtime:

(a) Scheduled maintenance with at least 48 hours' notice. (b) Emergency security maintenance. (c) Force majeure (§ 18). (d) Failures caused by Customer (misconfigured DNS, exhausted ad- platform OAuth tokens, etc.) or by Customer's chosen sub-vendors (origin host, commerce platform). (e) Failures of Beta features. (f) Cloudflare, Supabase, Vercel, Stripe, or another upstream provider suffering an outage that propagates to us — we will exercise commercially reasonable efforts to route around upstream outages but cannot eliminate them.

7.5 Support

We provide email support at support@hypertracking.io during business hours (Pacific Time, Monday–Friday, excluding U.S. federal holidays). Higher support tiers (24×7, named support engineer, response SLA) may be available on enterprise Order Forms. Initial response targets:

8. Privacy and security

8.1 DPA

Customer's End User personal data is processed under the DPA. The DPA is part of these Terms. If there is a conflict between these Terms and the DPA on a privacy or security matter, the DPA controls.

8.2 Security program

We maintain administrative, technical, and physical safeguards as described in DPA Annex II. Customer acknowledges that no system is impenetrable and that we cannot guarantee that Customer Data will not be accessed by unauthorized parties.

8.3 Customer security obligations

Customer must use strong, unique passwords and enable multi-factor authentication on Customer's account. Customer is responsible for keeping its credentials confidential. We are not liable for losses arising from Customer's failure to do so.

9. Intellectual property

9.1 Our IP

The Service, the Documentation, the marketing site, and everything we develop on our own initiative are owned by us (or our licensors). Nothing in these Terms transfers any IP right in the foregoing to Customer except for the limited license in § 2.1.

9.2 Customer IP

Customer Data is owned by Customer (or by the End User, as the case may be). Customer grants us a worldwide, non-exclusive, royalty-free license to host, process, transmit, and display Customer Data solely as needed to provide the Service and fulfill our obligations under these Terms and the DPA.

9.3 De-identified and aggregated data

We may use Customer Data in aggregated or de-identified form for purposes including:

(a) operating, securing, and improving the Service; (b) generating internal analytics and benchmarks; (c) producing aggregated industry reports.

Aggregated/de-identified data does not identify Customer or any End User and cannot be re-identified. We will not publish a benchmark in a way that identifies Customer's individual performance without Customer's prior written consent.

9.4 Feedback

If Customer provides suggestions, ideas, or feedback about the Service, we may use them without restriction or compensation. Customer grants us a perpetual, irrevocable, royalty-free, worldwide license to use such feedback. (We will not use Customer's name in marketing without consent — that is covered in § 9.5.)

9.5 Publicity

Neither party may use the other's name, logo, or trademarks in marketing materials, press releases, customer lists, or case studies without prior written consent. We may include Customer's logo in a customer list on our marketing site only with Customer's prior written approval (a Slack message or email is fine).

9.6 Open-source components

The Service uses open-source software listed at hypertracking.io/legal/oss-attribution. Each such component is licensed under its own terms.

10. Confidentiality

10.1 Definition

"Confidential Information" means non-public information disclosed by one party ("Discloser") to the other ("Recipient") that is identified as confidential at disclosure or that a reasonable person would understand to be confidential, including: pricing, technical architecture, security audit results, Customer Data, ad-platform account credentials, and unreleased product roadmaps.

Confidential Information does not include information that:

(a) is or becomes publicly available through no fault of Recipient; (b) was known to Recipient before disclosure without obligation of confidentiality; (c) is rightfully obtained from a third party without restriction; (d) is independently developed by Recipient without use of the Discloser's Confidential Information.

10.2 Obligations

Recipient will (i) use the same degree of care to protect Confidential Information as it uses for its own confidential information, no less than reasonable care, (ii) not disclose Confidential Information to any third party except its employees, contractors, and advisors who need to know and are bound by confidentiality obligations no less protective than these, and (iii) use Confidential Information only to perform its obligations and exercise its rights under these Terms.

10.3 Required disclosure

If Recipient is compelled by law to disclose Confidential Information, it will (where legally permitted) give Discloser prompt notice so Discloser may seek a protective order, and will disclose only the portion legally required.

10.4 Term

Confidentiality obligations survive for 3 years after disclosure, except that obligations with respect to trade secrets continue for as long as the information remains a trade secret under applicable law.

11. Warranties

11.1 Mutual

Each party represents and warrants that (a) it has the legal authority to enter into these Terms and (b) it will comply with all applicable laws in performing its obligations under these Terms.

11.2 Hyper Tracking

We warrant that during the Term:

(a) the Service will materially conform to the Documentation; (b) we will not materially decrease the security or functionality of the Service during a Term (subject to § 2.4); (c) we will perform the Service in a workmanlike manner consistent with industry standards; (d) to our knowledge, the Service does not contain malware.

If the Service breaches the warranty in § 11.2(a), Customer's exclusive remedy is for us to use commercially reasonable efforts to correct the nonconformity. If we cannot do so within 30 days, Customer may terminate the affected Order Form for cause and receive a pro-rata refund of pre-paid fees for the unused term.

11.3 Disclaimer

EXCEPT AS EXPRESSLY STATED IN THESE TERMS, THE SERVICE IS PROVIDED "AS IS" AND "AS AVAILABLE". WE DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WE DO NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE, OR THAT DATA WILL NOT BE LOST, BEYOND THE EXPRESS COMMITMENTS IN § 7 AND § 11.2. WE DO NOT WARRANT ANY OUTCOME OF CUSTOMER'S USE OF THE SERVICE, INCLUDING ANY ATTRIBUTION RESULT, MARKETING ROI, AD-PLATFORM PERFORMANCE, OR REVENUE LIFT.

12. Indemnification

12.1 By Hyper Tracking — IP claims

We will defend Customer against any third-party claim alleging that the Service, used as authorized by these Terms, infringes a U.S. or EU patent, copyright, trademark, or trade secret of the claimant ("IP Claim"), and we will pay damages and costs finally awarded by a court of competent jurisdiction or agreed to in a settlement we approve.

If the Service is, or in our reasonable opinion is likely to be, the subject of an IP Claim, we may at our option (i) procure for Customer the right to continue using the Service, (ii) modify the Service to be non-infringing, or (iii) terminate the affected Order Form and refund pre-paid fees for the unused term.

We have no liability under § 12.1 for an IP Claim arising from (a) Customer Data, (b) Customer's combination of the Service with non-Hyper Tracking products, (c) modifications to the Service not made by us, (d) use of the Service after notice to discontinue, or (e) Beta features.

§ 12.1 states our entire liability and Customer's exclusive remedy for IP infringement.

12.2 By Customer

Customer will defend us, our Affiliates, and our personnel against any third-party claim arising from (a) Customer Data, (b) Customer's breach of § 4 (Customer responsibilities) or § 8.3 (security obligations), (c) Customer's violation of applicable law, including privacy or marketing law, in the use of the Service, or (d) End User claims that Customer's use of the Service violated their privacy rights, except to the extent caused by our breach of the DPA or these Terms. Customer will pay damages and costs finally awarded or agreed in a settlement Customer approves.

12.3 Procedure

The indemnified party will (i) give the indemnifying party prompt written notice of the claim, (ii) give the indemnifying party sole control of the defense and settlement (provided no settlement may admit liability of, or impose non-monetary obligations on, the indemnified party without its consent), and (iii) reasonably cooperate. The indemnified party may participate in the defense at its own expense with counsel of its choice.

13. Limitation of liability

13.1 Excluded damages

EXCEPT FOR THE EXCLUDED MATTERS IN § 13.3, NEITHER PARTY (NOR ITS AFFILIATES OR LICENSORS) WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR FOR LOST PROFITS, LOST REVENUE, LOST DATA, LOST GOODWILL, OR COST OF SUBSTITUTE SERVICES, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

13.2 Cap

EXCEPT FOR THE EXCLUDED MATTERS IN § 13.3, EACH PARTY'S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THESE TERMS WILL NOT EXCEED THE FEES CUSTOMER PAID OR OWED TO US UNDER THE AFFECTED ORDER FORM IN THE 12 MONTHS PRECEDING THE EVENT GIVING RISE TO LIABILITY.

13.3 Excluded matters

The exclusions in § 13.1 and the cap in § 13.2 do not apply to:

(a) Customer's payment obligations under § 5; (b) either party's indemnification obligations under § 12; (c) either party's breach of confidentiality under § 10; (d) Hyper Tracking's breach of its data-protection obligations under the DPA (the liability for which is governed by the DPA); (e) gross negligence, fraud, or willful misconduct; (f) infringement of the other party's intellectual property rights; (g) Customer's violation of § 4.3 (Acceptable use); (h) liabilities that cannot be excluded or limited under applicable law (including, in some jurisdictions, liability for death or personal injury caused by negligence).

13.4 Allocation

The parties agree that the limitations in this § 13 are essential elements of the bargain. Without these limitations, the fees would be materially higher.

14. Insurance

Any insurance requirements applicable to the Service will be set out in the applicable Order Form, and we will comply with the insurance commitments, if any, stated there. Certificates of insurance, where we maintain coverage, are available to enterprise Customers on request, subject to confidentiality.

15. Compliance with laws

15.1 General

Each party will comply with all laws applicable to its performance under these Terms.

15.2 Anti-bribery

Each party will comply with the U.S. Foreign Corrupt Practices Act, the UK Bribery Act 2010, and all other applicable anti-corruption laws.

15.3 Export control and sanctions

Customer represents that it is not, and is not 50% or more owned or controlled by, a person on the U.S. Treasury Office of Foreign Assets Control's Specially Designated Nationals list, the EU Consolidated List, the UK Sanctions List, or any equivalent list. Customer will not export or re-export the Service in violation of U.S. Export Administration Regulations or any other applicable export-control law.

15.4 Anti-spam

Customer will comply with the U.S. CAN-SPAM Act, the Canadian Anti-Spam Legislation (CASL), the EU ePrivacy Directive (and Member State implementations), and other applicable anti-spam laws in its marketing operations. The Service is not designed for, and Customer must not use the Service for, sending unsolicited commercial messages.

16. Modification and notice

16.1 Updates to these Terms

We may update these Terms from time to time. The "Last updated" date above will reflect the latest revision.

16.2 Material change notice

For changes that materially reduce the rights of Customer, materially expand Customer's obligations, or materially expand the data the Service reads, we will give Customer at least 30 days' written notice by email and a prominent notice in the dashboard. Customer may reject the change by terminating the affected Order Form for convenience during the notice period and receiving a pro-rata refund of pre-paid fees.

16.3 Non-material changes

For non-material changes (clarifications, typo fixes, contact-info updates), we will update the "Last updated" date and continued use constitutes acceptance.

16.4 Notices

Notices to Customer are effective when sent to the email address on file or delivered through the dashboard. Notices to Hyper Tracking must be sent to legal@hypertracking.io with a copy by certified mail to OMESTA SYSTEMS LLC, Attn: Legal, 5830 E 2nd St, Ste 7000 #33555, Casper, Wyoming 82609, United States.

17. Governing law and disputes

17.1 Governing law

These Terms are governed by the laws of the State of Wyoming, without regard to conflict-of-laws rules. The United Nations Convention on Contracts for the International Sale of Goods does not apply.

17.2 Forum

Subject to § 17.6, the parties consent to the exclusive jurisdiction of the state and federal courts located in Natrona County, Wyoming for any dispute arising out of or relating to these Terms, and waive any objection to venue or inconvenient forum.

17.3 Dispute resolution

The parties resolve disputes through the courts identified in § 17.2. The parties have not agreed to mandatory arbitration.

17.4 Jury trial and class action waiver

EACH PARTY WAIVES ANY RIGHT TO A JURY TRIAL AND TO PARTICIPATE IN A CLASS, COLLECTIVE, OR REPRESENTATIVE ACTION. Disputes must be brought on an individual basis only. If this waiver of class or representative proceedings is held unenforceable, this § 17.4 will be severed and the dispute will proceed in court without it.

17.5 Fees

In any action to enforce these Terms, the prevailing party is entitled to recover its reasonable attorneys' fees and costs.

17.6 Equitable relief

Either party may seek injunctive or other equitable relief in any court of competent jurisdiction to protect its IP, Confidential Information, or rights under § 4.3 (Acceptable use).

17.7 Limitation period

Any claim arising out of these Terms must be brought within one year after the cause of action accrues, or the claim is permanently barred, to the extent permitted by applicable law.

18. Force majeure

Neither party is liable for delay or failure of performance (other than payment obligations) caused by events beyond the party's reasonable control, including: acts of God, fire, earthquake, flood, pandemic, governmental action, war, terrorism, civil unrest, labor unrest, power or telecommunications failure, or upstream-vendor outage. The affected party must notify the other promptly and use commercially reasonable efforts to resume performance. If the force-majeure event continues for more than 60 consecutive days, either party may terminate the affected Order Form on written notice with a pro-rata refund of pre-paid fees for the unused term.

19. Assignment

Neither party may assign these Terms without the other party's prior written consent, except that either party may assign without consent in connection with a merger, acquisition, or sale of all or substantially all of its assets. Any assignment in violation of this section is void. These Terms bind and benefit the parties' permitted successors and assigns.

20. Independent parties

The parties are independent contractors. Nothing in these Terms creates a partnership, joint venture, agency, fiduciary, or employment relationship.

21. Miscellaneous

21.1 Entire agreement

These Terms (together with the DPA, the Privacy Policy as it relates to Customer Personnel, any Order Form, and any other addenda the parties sign) constitute the entire agreement between the parties on the subject matter and supersede all prior or contemporaneous agreements on that subject matter.

21.2 Order of precedence

In the event of conflict: (a) a fully signed Order Form prevails over these Terms only as to the specific terms it expressly modifies; (b) the DPA prevails over these Terms on privacy and security matters; (c) otherwise these Terms control.

21.3 No third-party beneficiaries

Except as expressly stated (e.g. our Affiliates and personnel under § 12.2), these Terms do not confer any right on any third party.

21.4 Severability

If any provision is held invalid or unenforceable, the remaining provisions remain in effect, and the invalid provision will be modified to the minimum extent necessary to make it enforceable while preserving the original intent.

21.5 Waiver

A party's failure to enforce any provision is not a waiver. A waiver is effective only if in writing and signed by the waiving party.

21.6 Headings

Section headings are for convenience only and do not affect interpretation.

21.7 Drafting

These Terms have been drafted with input from both parties (and where not, the canon of construction against the drafter does not apply).

21.8 Counterparts; electronic signatures

These Terms may be accepted by click-through, electronic signature, or in counterparts. Each accepted version constitutes a binding agreement.

21.9 Government customers

These Terms are written for private-sector customers. If Customer is a U.S. federal, state, or local government entity, the parties will agree any required procurement flow-downs in an Order Form before the Service is provided.

21.10 Survival

Sections that by their nature should survive termination — including § 1 (Definitions), § 5 (accrued fees), § 6.5 (Effect of termination), § 9 (IP), § 10 (Confidentiality), § 11.3 (Warranty disclaimer), § 12 (Indemnity), § 13 (Liability), § 17 (Governing law and disputes), and this § 21 — survive any termination or expiration of these Terms.