The following Terms of Service (this "Agreement") constitutes a legal agreement between you and actucast, Inc., a Delaware corporation with a principal place of business at 425 Oak Park Drive, 94131 San Francisco, California (also referred to herein as "äctucast") and governs your use of all Services (as defined below) provided to you by äctucast.

BY CLICKING THE "I AGREE" BUTTON AT THE END OF THIS AGREEMENT, YOU AGREE TO THE TERMS SERVICE IN THIS AGREEMENT.  If you do not agree to the terms of service in this Agreement, you should not use the Services.  By Clicking the "I Agree" Button at the end of this Agreement, you are also agreeing that you are an authorized representative of your company or organization for purposes of entering into this Agreement and are also agreeing that such company or organization will abide by all of the provisions of this Agreement (the "Customer").

These Terms of Use were last updated on January the Ninth 2012. 

1.     Definitions.

1.1."Applications" means the data analytics and reporting applications supplied by äctucast for access by Customer for use as part of the Services, including any optional modules, custom or standard enhancements developed by äctucast, updates and upgrades, including associated offline components, but excluding Third Party Offerings.

1.2."Customer Data" means exclusively all data submitted by Customer into the Applications.  Data resulting from the computation or processing by the Applications of the data submitted by the Customer will not be considered as "Customer Data" but will be exclusively and solely owned by äctucast.

1.3."Documentation" means the online user instructions and help files made available by äctucast as part of the user interface for the Services, as updated from time to time.

1.4."Order Form" means the ordering documents for Services ordered from äctucast that are executed hereunder by the parties from time to time.  Order Forms shall be deemed incorporated herein.

1.5."Services" means the online provisioning of web-based Applications by äctucast via the URL www.actucast.com and/or other designated websites as described in the Documentation, that are ordered by Customer under an Order Form, including associated support and maintenance activities provided by äctucast related to the foregoing.

1.6."Third Party Offerings" means services performed by third parties independently of äctucast related to the Services, or other online, Web-based CRM, ERP, or other business application subscription services, and any associated offline products provided by third parties, and that interoperate with the Services.

1.7."User" means individuals who are authorized by Customer to access and use the äctucast applications, and who have been supplied user identifications and passwords for the purpose of accessing the Services.  Users may include but are not limited to Customer’s employees, consultants, contractors and agents.

2.     Description of Services.  äctucast will use make available to Customer those Services ordered under the applicable Order Form during the applicable Subscription Term (as defined below) pursuant to the terms of this Agreement.  Customer’s use of the Services includes the right to access all functionality available for the specific Applications included with the Services as of the date of the Order Form. Subsequent enhancements to the Services made generally-available to all customers will be made available to Customer at no additional charge.  However, the availability of new Applications or enhancements to the Services may require the payment of additional fees, and äctucast will determine at its sole discretion whether access to any other such new Applications or enhancements will require an additional fee.  Unless otherwise set forth in an Order Form, this Agreement will apply to any updates, upgrades and new modules or offerings subsequently provided by äctucast to Customer as part of any ordered Services.

3.     Terms of Use of Services

3.1.Provision of Services. äctucast will: (i) provide to Customer basic email support (available at support@actucast.com) for the Services ordered by Customer at no additional charge during normal business hours, and/or upgraded support if made available by äctucast and ordered by Customer separately; (ii) use commercially reasonable efforts to make the ordered Services available 24 hours a day, 7 days a week, with minimal downtime, except for: (a) planned downtime (of which äctucast will endeavor to provide at least 48 hours notice in advance of the maintenance time, except for routine maintenance time currently scheduled for every Wednesday 11:00pm – Thursday 3:00am Pacific Time), or (b) any unavailability caused by circumstances beyond äctucast’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving äctucast’s employees), Internet service provider failures or delays, or the unavailability or modification by third parties of Third Party Offerings; (iii) maintain reasonable administrative, physical and technical safeguards for the protection, confidentiality and integrity of Customer Data (the same as äctucast uses to protect its data); and (iv) provide the Services in accordance with applicable laws and government regulations.

3.2.Provisioning of Applications. äctucast will host relevant Applications (except for off-line components or applications) and may update the functionality and user interface of the Services from time to time in its sole discretion as part of its ongoing mission to improve the Services and customers’ use of the Services.  Certain Applications or portions of the Services may be subject to other limitations, such as, for example, limits on storage capacity for Customer Data.  Any such limitations will be specified either in the Order Form or in the Documentation.

3.3.Content License. Subject to the terms and conditions of this Agreement, including äctucast’s confidentiality obligations, Customer hereby grants äctucast a limited, non-exclusive, royalty-free, worldwide license to use the Customer Data and perform all acts with respect to the Customer Data as may be necessary for äctucast to provide the Services to Customer.  To the extent that receipt of the Customer Data requires that äctucast utilize any account information from a third party service provider (such as Google Analytics), Customer shall be responsible for obtaining and providing such passwords, and äctucast hereby agrees to access and use the Customer Data solely for Customer’s benefit and as set forth in this Section and this Agreement.  As between äctucast and Customer, Customer is solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data.  äctucast’s privacy and security policies may be viewed at www.actucast.com/privacy-policy. äctucast reserves the right to modify its privacy and security policies in its discretion from time to time. Note that because the Service is a hosted, online application, äctucast occasionally may need to notify all Users of important announcements regarding the operation of the Service.

3.4.Customer’s Responsibilities. Customer is responsible for its Users’ compliance with this Agreement and for its Users’ use of the Services, and for ensuring that Users maintain the confidentiality of their passwords and user names.  Customer agrees that it will not:  (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Services or any Application available to any third party, other than to Users or as otherwise contemplated by this Agreement; (ii) use the Services to collect, transmit or process (a) infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, including material that is harmful to children or violates third party privacy rights; (b) any data regarding an individual’s financial or economic identity, sexual orientation, religious beliefs, medical or physical identity, including any information comprised of either "Protected Health Information" subject to and defined by the Health Insurance Portability and Accountability Act, or an individual’s first name and last name, or first initial and last name, in combination with any one or more of the following data elements that relate to such individual: Social Security number, driver's license number or state-issued identification card number, financial account number, or credit or debit card number, with or without any required security code, access code, personal identification number or password, that would permit access to a resident’s financial account; (c) send, store, publish, post, upload or otherwise transmit any viruses, Trojan horses, worms, time bombs, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, personal information or property of another; (iii) interfere with or disrupt the integrity or performance of the Services; or (iv) attempt to gain unauthorized access to the Services or its related systems or networks; (v) use or knowingly permit the use of any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the Services; (vi) access the Services or download an Application for the purpose of building a similar or competitive product or service or for the purpose of obtaining unauthorized access to the Services; (vii) copy, translate, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the Applications or Services or any part thereof or otherwise attempt to discover any source code or modify the Applications or Services.

3.5.Temporary Suspension.  äctucast monitors all use of the Services for security and operational purposes.  äctucast may temporarily suspend Customer’s or its Users’ access to the Services or any Application in the event that either Customer or its User is engaged in, or äctucast in good faith suspects is engaged in, any unauthorized conduct (including any violation of the terms of this Agreement, any applicable law or third party right, including the terms of any Third Party Offering on which Customer’s use of the Services relies).  äctucast will attempt to contact Customer prior to or contemporaneously to such suspension, provided, however, that äctucast’s exercise of the suspension rights herein shall not be conditioned upon Customer’s receipt of any notification.  Customer agrees to (i) notify äctucast immediately of any unauthorized use of any password or account or any other known or suspected breach of security impacting the Services; (ii) report to äctucast immediately and use reasonable efforts to stop immediately any copying or distribution of Customer Data that is known or suspected by Customer or its User as being unlawful or unauthorized; and (iii) not impersonate another User or provide false identity information to gain access to or use the Services or Application.  A suspension may take effect for Customer’s entire account and Customer understands that such suspension would therefore include User sub-accounts.  Customer agrees that will not be liable to Customer or to any User or any other third party if äctucast exercises its suspension rights as permitted by this Section.

3.6.Third-Party Web Sites, Products and Services.  The Services may rely on or require that Customer access Third Party Offerings.  Customer’s or its User’s use of outside websites must at all times comply with the terms of service governing such websites.  Customer understands and agrees that the availability of the Applications, or certain features and functions of the Applications, are dependent on the corresponding availability of Third Party Offerings or specific features and functions of Third Party Offerings.  äctucast will not be liable to Customer or any third party in the event that changes in Third Party Offerings cause the unavailability the Applications or any feature or function of the Applications.  äctucast may also refer Customer to third party service providers that offer Third Party Offerings.  äctucast does not warrant any such Third Party Offerings, whether or not such Third Party Offerings or services are designated by äctucast as "certified," "approved", "recommended" or otherwise, or the services are provided by a third party referred by äctucast or that is a member of an äctucast partner program.  To the extent that äctucast requires that Customer grant äctucast authorizations, passwords or other user credentials to a Third Party Offering ("Access Codes") to retrieve Customer Data or interoperate with the Service, Customer shall promptly provide such Access Codes.  äctucast shall not share, reassign, divulge or disclose any Access Codes, nor permit or allow any third party to share, reassign, divulge, disclose or use any Access Codes, except to äctucast employees or authorized contractors specifically engaged in the performance of the Services and solely for that purpose.  Access Codes shall constitute Customer’s Confidential Information under this Agreement.

3.7.Accuracy of Customer’s Contact Information; Email Notices.  Customer agrees to provide accurate, current and complete information as necessary for äctucast to communicate with Customer from time to time regarding the Services, issue invoices, accept payment, or other account-related purposes.  Therefore, Customer agrees to keep any online account information current and inform us of any other changes in Customer’s legal business name, address, email address and phone number. Customer agrees to accept emails from äctucast at the e-mail address specified by its Users for login purposes. äctucast may provide any and all notices, statements, and other communications to Customer through either e-mail, posting on the Services (or other electronic transmission) or by mail or express delivery service.  In addition, Customer agrees that äctucast may rely and act on all information and instructions provided to äctucast by Users from the above-specified e-mail address.

4.     Fees and Payment Terms

4.1.Billing. Customer may elect (if available) one of the following billing options when placing its order for the Services:

4.1.1.     Flexible Plan.  If Customer selects this option, Customer will not be committed to purchase the Services for a pre-defined term, but will pay for the Services on a monthly basis.  äctucast will bill Customer: (i) Fees based upon Customer’s daily usage of the Services during the preceding month; and (ii) monthly in arrears for its use of the Services.  äctucast will provide Customer with the monthly rate for the Services when Customer orders the Services, and will use this rate to calculate the Fees, on a prorated basis, for Customer’s daily usage during that month.  Any partial day of Services usages will be rounded up to a full day of Services usage for the purposes of calculating Fees.  Customer may pay for the Services using either of the payment options listed below.

4.1.2.     Annual Plan.  If Customer selects this option, Customer will be committed to purchasing the Services from äctucast for an annual term, and in exchange will receive a discount on the Services which will be reflected in Customer’s monthly payment.  äctucast will still bill Customer monthly in arrears for its use of the Services when Customer has an annual commitment for the Services.  Customer may pay for the Services using the payment options listed below.

4.2.Payment.  All payments due are in U.S. dollars unless otherwise indicated on the Order Form or invoice.

4.2.1.     Credit Card or Debit Card.  Fees for orders where Customer is paying with a credit card, debit card or other non-invoice form of payment, are due when Customer received the Services.  For credit cards, or debit cards, as applicable: (i) äctucast will charge Customer for all applicable Fees when due and (ii) these Fees are considered delinquent thirty days after the end of the month during which Customer received the Services.

4.2.2.     Invoices.  Fees for orders where äctucast issues an invoice are due thirty days after the invoice date, and are considered delinquent after such date.

4.3.Delinquent Payments.  Delinquent payments may bear interest at the rate of one-and-one-half percent per month (or the highest rate permitted by law, if less) from the payment due date until paid in full.  Customer will be responsible for all reasonable expenses (including attorneys' fees) incurred by äctucast in collecting such delinquent amounts, except where such delinquent amounts are due to äctucast’s billing inaccuracies.

4.4.Suspension for Non-Payment.

4.4.1.     Automatic Suspension.  Customer will have thirty days to pay äctucast delinquent Fees.  If Customer does not pay äctucast delinquent Fees within thirty days, äctucast will automatically suspend Customer’s use of the Services.  The duration of this suspension will be until Customer pays äctucast all outstanding Fees.

4.4.2.     During Suspension.  If Customer is on a monthly billing plan, and Customer is suspended for non-payment, äctucast will stop charging Customer monthly Fees during Customer’s suspension for non-payment.  If Customer has an annual commitment to äctucast for the Services, äctucast will continue to charge Customer monthly Fees during Customer’s suspension for non-payment and Customer must pay all outstanding Fees in order to resume its use of the Services.

4.4.3.     Termination After Suspension. If Customer remains suspended for non-payment for more than sixty days, äctucast may terminate Customer for breach pursuant to Section 10.

4.5.Taxes. Customer is responsible for any taxes associated with the Services (other than taxes based on äctucast’s net income), and Customer will pay äctucast for the Services without any reduction for taxes. If äctucast is obligated to collect or pay taxes, the taxes will be invoiced to Customer, unless Customer provides äctucast with a valid tax exemption certificate authorized by the appropriate taxing authority.  If Customer is required by law to withhold any taxes from its payments to äctucast, Customer must provide äctucast with an official tax receipt or other appropriate documentation to support such payments.

5.     Proprietary Rights

5.1.Reservation of Rights. Subject to the limited rights expressly granted hereunder, äctucast reserves all rights, title and interest in and to the Applications and the Services, including all related intellectual property rights.  No rights are granted to Customer hereunder other than as expressly set forth herein.  Neither Customer nor any Users will delete or in any manner alter the copyright, trademark, and other proprietary notices of äctucast, if any, appearing on any Application or Documentation.

5.2.Suggestions.  Customer acknowledges and agrees that any suggestions, enhancement requests, recommendations or other feedback Customer or its Users provide to äctucast regarding the Applications or Services shall be the sole and exclusive property of äctucast and all such recommendations shall be free from any confidentiality restrictions that might otherwise be imposed upon äctucast pursuant to Section 7 below.  Furthermore, any äctucast Application or Services incorporating such suggestions, enhancement requests, recommendations or other feedback shall be the sole and exclusive property of äctucast.

5.3.Customer Data. As between äctucast and Customer, Customer exclusively owns all right, title and interest in and to all Customer Data.  Customer Data are deemed Confidential Information under this Agreement.

5.4.Statistical Information.  Notwithstanding anything else in the Agreement or otherwise, äctucast may monitor Customer’s use of the Services and use data related to Customer’s use of the Services or the results of the Services in an aggregate and anonymous manner, including to compile statistical and performance information related to the provision and operation of the Services.  Customer agrees that äctucast may make such information publicly available, provided that such information does not incorporate any Customer Data and/or identify Customer.  äctucast retains all rights, title and interest in and to such information, including all related intellectual property rights.

6.     Confidentiality

6.1."Confidential Information" means all confidential or proprietary information of a party ("Disclosing Party") disclosed to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential.  Customer Confidential Information shall include Customer Data; äctucast Confidential Information shall include the pricing and other terms set forth in all Order Forms hereunder, software (including but not limited to, the Applications, flow of screens, and Documentation), trade secrets, designs, drawings, flow charts, data and computer programs of äctucast.

6.2.Treatment of Confidential Information.  The Receiving Party shall not use or disclose any Confidential Information of the Disclosing party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s permission.

6.3.Permitted Disclosure.  The obligation of nondisclosure set forth herein shall not apply to any Confidential Information that: (i) is or becomes publicly available without a breach of any obligation owed to the Disclosing Party; (ii) is already known to the Receiving Party at the time of its disclosure by the Disclosing Party, without a breach of any obligation owed to the Disclosing Party; (iii) following its disclosure to the Receiving Party, is received by the Receiving Party from a third party without breach of any obligation owed to the Disclosing Party; or (iv) is independently developed by the Receiving Party without reference to or use of the Disclosing Party’s Confidential Information (except for patentable subject matter, which shall not be subject to this exception); or (v) the Receiving Party is required to disclose by any applicable law, by any rule or regulation of any court or government agency of competent jurisdiction, or pursuant to legal process; provided that the Receiving Party provides the Disclosing Party with prompt written notice of the requirement to disclose, reasonable assistance in the opposing or limiting of such disclosure and limits such disclosure to that strictly required by such court, government agency or legal process.

6.4.Injunctive Relief. The Parties agree that any unauthorized disclosure of Confidential Information may cause immediate and irreparable injury to the Disclosing Party and that, in the event of such breach, the Receiving Party will be entitled, in addition to any other available remedies, to immediate injunctive and other equitable relief, without bond and without the necessity of showing actual monetary damages.

7.     WARRANTIES; DISCLAIMERS

7.1.Warranties.  Each party warrants that it has the power and authority to enter into this Agreement.  äctucast warrants to Customer that the Applications will perform in all material respects with the Documentation.

7.2.General Disclaimers.  THE WARRANTIES EXPRESSLY SET FORTH IN SECTION 7.1 ARE THE SOLE AND EXCLUSIVE WARRANTIES GIVEN BY ÄCTUCAST.  TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, ÄCTUCAST AND ITS LICENSORS MAKE NO OTHER REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE, THE APPLICATIONS OR THE RESULTS THEREOF.  ÄCTUCAST AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE APPLICATION OR SERVICES WILL MEET CUSTOMER’S OR ITS USERS SPECIFIC NEEDS, REQUIREMENTS OR EXPECTATIONS, OR ACHIEVE A PARTICULAR MARKETING OR OTHER BUSINESS RESULT, (B) THE USE OF THE SERVICE OR APPLICATIONS WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL OBTAINED BY CUSTOMER THROUGH THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR ARE NOT SUSCEPTIBLE TO INTRUSION OR ATTACK.  THE SERVICE AND ALL DATA IS PROVIDED TO CUSTOMER STRICTLY ON AN "AS IS" BASIS.  ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY ÄCTUCAST AND ITS LICENSORS.  THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS.  ÄCTUCAST IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

8.     Indemnification.  Customer agrees to defend, indemnify, and hold harmless äctucast from all liabilities, claims of any nature, losses, costs, amounts and expenses, including attorney's fees, that arise from, relate to, or are otherwise connected with (directly or indirectly): (i) any misuse of and access to the Services and Applications by Users or anyone utilizing Users’ credentials; and (ii) any alleged or actual breach of this Agreement by Customer or Users or anyone utilizing User’s credentials.  We reserve the right to assume control of the defense of any third party claim that is subject to indemnification by Customer, in which event Customer will cooperate with us in asserting any available defenses.

9.     LIMITATION OF LIABILITY.  IN NO EVENT SHALL ÄCTUCAST AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICES AND/OR THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICES, OR FOR ANY CUSTOMER DATA, OR ANY RESULTS OR DATA OBTAINED FROM OR THROUGH THE SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CUSTOMER DATA, EVEN IF ÄCTUCAST AND/OR ITS LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COULD HAVE REASONABLY FORESEEN THEM.  IN NO EVENT SHALL ÄCTUCAST'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNTS PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT OR, IF NO AMOUNTS ARE PAID BY CUSTOMER, $1,000. 

10.  TERM AND TERMINATION

10.1.      Term of Subscriptions.  Customer’s subscription to use the Application and/or access the Services begins on the start date specified in the  Order Form and continues for the period set forth therein (each a "Subscription Term").

10.2.      Termination for Cause.  This Agreement may be terminated by either party for cause as follows: (i) upon thirty (30) days written notice if the other party breaches or defaults under any material provision of this Agreement and does not cure such breach prior to the end of such thirty (30) day period, (ii) effective immediately and without notice if the other party ceases to do business, or otherwise terminates its business operations.  äctucast may temporarily cease performance of its obligations during any cure period.

10.3.      Effect of Termination.  Termination of this Agreement will automatically terminate an Order Form incorporating the terms of this Agreement, and the subscription granted under such Order Form shall terminate immediately.  In the event of termination of an Order Form or this Agreement, upon Customer’s request made within 30 days after the effective date of applicable termination, äctucast shall make available to Customer for download Customer’s Customer Data in the current format in which it is stored in the äctucast Application.  After such 30-day period, äctucast shall have no obligation to maintain or provide any Customer Data and may thereafter unless legally prohibited, delete all Customer Data in its systems or otherwise in its possession or under its control.

10.4.      Survival. Except to the extent expressly provided to the contrary herein, Sections 5 through 11 shall survive the termination of these Terms of Use.

11.  GENERAL

11.1.      Relationship. The relationship between the parties created by this Agreement is that of independent contractors and not partners, joint venturers or agents.  This is a non-exclusive arrangement.

11.2.      Entire Understanding. This Agreement (including any ordering documents or URLs incorporated by reference herein) states the entire understanding between the parties with respect to its subject matter, and supersedes all prior proposals, marketing materials, negotiations and other written or oral communications between the parties with respect to the subject matter of this Agreement.  To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any Order Form, the terms of such Order Form shall prevail.  Notwithstanding any language to the contrary therein, no terms or conditions stated in Customer’s purchase order or in any other ordering documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.

11.3.      Modification and Waiver. Except for äctucast’s modification or update of the Documentation, the Services or Applications, or any pricing or other policies referenced by a URL herein, or as necessary to comply with applicable law, rules, regulations, no modification of this Agreement, and no waiver of any breach of this Agreement, shall be effective unless in agreed to by both parties.  No waiver of any breach of this Agreement, and no course of dealing between the parties, shall be construed as a waiver of any subsequent breach of this Agreement.  A determination that any provision of this Agreement is invalid or unenforceable shall not affect the other provisions of this Agreement.

11.4.      Governing Law and Venue.  This Agreement shall be governed by and construed under the laws of the United States and the State of California excluding its conflict of law rules.  The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.  The state and federal courts located in San Francisco, California, will have exclusive jurisdiction to adjudicate any dispute relating to this Agreement.  Each party hereby irrevocably consents to the exclusive jurisdiction of such courts.

11.5.      Publicity.  äctucast may reference Customer’s name and the nature of the Services provided hereunder in äctucast business development and marketing efforts, including without limitation its web site.

11.6.      Assignment. Customer may not assign this Agreement or its rights or obligations hereunder without the prior written consent of äctucast.  Any attempted assignment made without äctucast’s prior written consent shall be considered null and void and shall cause this Agreement to immediately terminate.  There are no third party beneficiaries to this Agreement.

11.7.     Electronic Contracting and Notices. Customer’s affirmative act of accepting this Agreement and/or using the Services constitute Customer’s electronic signature to this Agreement and Customer’s consent to enter into agreements with äctucast electronically.  This Agreement shall be deemed to satisfy any writings requirements of any applicable law, notwithstanding that the Agreement is written and accepted electronically.  Customer can retrieve an electronic copy and a printable version of this Agreement, which constitutes a contract between äctucast and Customer, by clicking on the "Terms of Service" link on the äctucast website. All contracts completed electronically will be deemed for all legal purposes to be in writing and legally enforceable as a signed writing.  Customer also agrees that äctucast may send to Customer in electronic form any privacy or other notices, disclosures, reports, documents, communications or other records regarding the Services (collectively, "Notices").  äctucast may also give Notice by means of a written communication sent by first class mail or pre-paid post to your address on record in äctucast’s account information.  The delivery of any Notice from äctucast is effective when sent by äctucast, regardless of whether Customer reads the Notice, when Customer receives it or whether Customer actually receives the delivery. Customer may give notice to äctucast (such notice shall be deemed given when received by äctucast) at any time by any of the following: letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to Äctucast at the following address: äctucast, Inc., 88 Howard Street Suite 1603 San Francisco, CA, 94105, addressed to the attention of: Chief Executive Officer.  All communications and notices to be made or given pursuant to this Agreement shall be in the English language.

11.8.      Force Majeure.  äctucast shall not be liable under this Agreement for delays, failures to perform, damages, losses or destruction, or malfunction of any equipment, or any consequence thereof, caused or occasioned by, or due to fire, earthquake, flood, water, the elements, labor disputes or shortages, utility curtailments, power failures, explosions, civil disturbances, governmental actions, shortages of equipment or supplies, unavailability of transportation, acts or omissions of third parties, or any other cause beyond its reasonable control.