Terms of Service.
PINPOINT PROVIDES THE SERVICES SOLELY ON THE TERMS OF SERVICE SET FORTH HEREIN AND ON THE CONDITION THAT YOU ACCEPT AND COMPLY WITH THEM. BY USING OR PURCHASING THE SERVICES, YOU (A) ACCEPT THE TERMS OF SERVICE AND AGREE THAT YOU ARE LEGALLY BOUND BY THEM; AND (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THE TERMS OF SERVICE ON BEHALF OF THE ENTITY YOU REPRESENT AND BIND SAID ENTITY TO ITS TERMS. IF YOU DO NOT AGREE TO THE TERMS OF SERVICE, YOU MUST NOT USE THE SERVICES OR DOCUMENTATION.
- An "Account" represents Your legal relationship with Pinpoint. A “User Account” represents an individual User’s authorization to log in to and use the Service and serves as a User’s identity on Pinpoint. “Organizations” are shared workspaces that may be associated with a single entity or with one or more Users where multiple Users can collaborate across many projects at once. A User Account can be a member of any number of Organizations.
- “Confidential Information” means all confidential information disclosed by a party to the other party, whether orally or in writing that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including but not limited to all code, inventions, know-how, business, technical and financial information disclosed to such party.
- “Customer Account Data” means the personal information that Pinpoint collects on You as a User of the Service and which may include Service usage, data analytics, and contact information from Your Account as further identified in Pinpoint’s Privacy Statement (“Pinpoint’s Privacy Statement”).
- “Pinpoint” refers to Pinpoint Software Inc., with a principal place of business at 11801 Domain Blvd 3rd Floor, Austin, TX 78758 USA.
- “Pinpoint Technology” means the Services (including all no-charge free Services), their “look and feel”, any and all related or underlying technology, and any modifications or derivative works of the foregoing created by or for Pinpoint.
- “Service(s)” means the software development analytics and performance insights that are provided to You as a cloud based software as a service according to the subscription plan selected in Your Account.
- “Source System Data” means information contained within a User’s source systems (e.g. Jira, GitHub, GitLab, Workday), which the Service uses to provide software development analytics and performance insights.
- “Term” means either the period for which You use the Service and/or as an Organization purchase a subscription plan on a monthly or annual subscription basis as set forth in Your Account, including any renewals thereof in accordance with Section 7.1.
- “Users”, “You,” and “Your” refers to the individual person, company, or organization that is using the Service, for whom an Account has been created, that accesses or uses any part of the Account; or that directs the use of the Account in the performance of its functions. Users may include but are not limited to Your employees, consultants, contractors and agents. A User must be at least 13 years of age. You may not have more than one free Account.
- Users. Subject to these Terms of Service, You retain ultimate administrative control over Your User Account and the Source System Data within it.
- Organizations. The "owner" of an Organization that was created under these Terms of Service has ultimate administrative control over that Organization and the Source System Data within it. Within the Service, an owner can manage User access to the Organization’s Account. An Organization may have multiple owners, but there must be at least one User Account designated as an owner of an Organization. If You are the owner of an Organization under these Terms, Pinpoint considers You responsible for the actions that are performed on or through that Organization.
- User Accounts and Organizations have different administrative controls. You must have an Account to use the Services. Organizations will indicate the subscription plan chosen in Your Account. Pricing, functionality, the quantity of Users and support will vary according to the subscription plan chosen. All use of the Services by You and Your Users must be within the authorized scope of use set forth in these Terms of Service and the applicable subscription plan in Your Account. You are responsible for all Users’ compliance with these Terms of Service and Your Account. If You elect a paid subscription plan, additional information will be required for billing purposes
Use of the Services.
- Access to Services. Pinpoint grants You a non-exclusive right to access and use the Services during the applicable Term in accordance with the applicable subscription plan chosen by You in Your Account, these Terms of Service, and the Service documentation. You acknowledge that the Services are on-line and subscription-based and that Pinpoint may make changes to the Services from time to time, provided that such changes do not materially diminish the functionality of the Services.
- Restrictions. Except as otherwise expressly permitted in these Terms of Service, You shall not: (a) rent, lease, reproduce, modify, adapt, create derivative works of, distribute, sell, sublicense, transfer, or provide access to the Services to a third party, (b) use the Services for the benefit of any third party, (c) interfere or otherwise circumvent mechanisms in the Services intended to limit the scope of use, or (d) publicly disseminate information regarding the performance of the Services on a website, blog or social media under Your control. You shall comply with all laws applicable to its use of the Services. Any use of the Services in breach of these Terms of Service, Your Account or the Service documentation, that in Pinpoint’s reasonable judgment threatens the security, integrity or availability of the Services or of its intellectual property rights associated with, arising out of or integral to the Services, may result in immediate suspension of Your access to the Services. However, Pinpoint agrees to use commercially reasonable efforts (as dictated by the circumstances) to provide You with prior notice of the planned suspension and an opportunity to remedy such violation or threat before the suspension occurs.
- Credentials. You shall keep Your user IDs and passwords for the Services strictly confidential and not share such information with any unauthorized persons. You are responsible for any and all actions taken through use of Your Accounts and passwords. You agree to notify Pinpoint immediately if You become aware of any unauthorized use of the Services.
- Source System Data. You retain all right, title and interest in and to Source System Data in the form provided to Pinpoint. Subject to the terms of these Terms of Service, You grant to Pinpoint a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit and share the Source System Data with Pinpoint’s authorized business partners to the extent necessary to provide the Services to You and in accordance with Pinpoint’s Privacy Statement. Pinpoint may also access Your Account or instance in order to respond to support requests. You shall ensure that Your use of the Services including tracking of Users and all Source System Data are at all times compliant with applicable local, state, federal and international laws and regulations including those applicable to data privacy and works council, as applicable. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all Source System Data. You are solely responsible for the installation, maintenance, repair, use, and upgrade of the third party software that the Source System Data is derived from that the Service is used with. With respect to all reports delivered or made available to You (whether through physical or electronic delivery or through a web-based dashboard or portal) in connection with Your use of the Services (“Reports”), such Reports and all data contained therein shall constitute Source System Data, provided that the template, design, and “look and feel” of the Reports (the “Report Templates”) shall remain the sole and exclusive property of Pinpoint. Pinpoint hereby grants to You a license to use and distribute the Report Templates for Your business purposes during the Term. You represent and warrant that to the best of Your knowledge, the Source System Data does not contain any viruses, Trojan horses, worms or other components that would limit or harm the functionality of the Services. You consent to Your Account information and Source System Data being stored in the United States as part of the Services.
- Security. Pinpoint implements industry standard security procedures to help protect Source System Data from security attacks. However, You acknowledge that use of the Services necessarily involves transmission of Source System Data over networks that are not owned, operated or controlled by Pinpoint, and Pinpoint is not responsible for any Source System Data lost, altered, intercepted or stored across such networks. Pinpoint cannot guarantee that its security procedures will be error-free, that transmissions of Source System Data will always be secure or that unauthorized third parties will never be able to defeat Pinpoint security measures or those of Pinpoint’s third-party hosting providers. You are solely responsible for maintaining the security of Your network and computer systems. Pinpoint assumes no responsibility or liability for backing up Source System Data as the primary source.
- Use Verification. If Your use and Your Users’ use of the Services exceeds the permitted scope of use set forth in the subscription plan elected in Your Account and these Terms of Service including the number of Users being tracked, Your Account will be charged the next month on a go-forward basis for the additional Users. If Pinpoint determines that You have exceeded the permitted scope of use, Pinpoint will notify You of its determination and may require You to immediately discontinue the unpermitted use or terminate Your access and use of the Services. Pinpoint may invoice You for additional Users commensurate with Your actual past use and You shall pay Pinpoint’s invoice on receipt.
- Support and Maintenance. During the Term, Pinpoint shall provide support and maintenance, if any, as part of the Services at no additional charge in accordance with subscription plan selected by You.
Delivery; Pricing; Upgrade, Downgrades and Changes; and Billing, Schedule and No Refunds.
- Delivery. Pinpoint shall deliver the login instructions for the Services to the email address(es) specified in Your Account.
- Pricing. Pricing and payment terms are available at http://pinpoint.com/pricing. If You elect a paid subscription plan, that price will remain Your price for the duration of the payment term exclusive of any subscription plan changes or additional Users added; however, prices are subject to change at the end of a payment term.
- Upgrades, Downgrades, and Changes. Pinpoint will immediately bill You when You upgrade from the free subscription plan to any paid subscription plan. If You change from a monthly billing plan to a yearly billing plan, will bill You for a full year at the next monthly billing date. If You upgrade to a higher level of service, we will bill You for the upgraded plan immediately. You may change Your subscription at any time by going into Your Account settings. If You choose to downgrade Your subscription plan in Your Account, You may lose access to features or capacity of the Service and/or Support.
- Billing, Schedule, and No Refunds. For monthly subscription plans, the Service is billed on an individual monthly go-forward basis based on the number of Users in your Account as of the last day of a 30 day cycle [or on a yearly basis in advance with any excess added Users invoiced on a pro-rata basis for that month] respectively and is non-refundable. There will be no refunds or credits for partial months of service, downgrade refunds, or refunds for months unused with an open Account; however, the Service will remain active for the length of the paid billing period. By agreeing to these Terms of Service, You are giving Pinpoint permission to charge Your on-file credit card, or other approved methods of payment for fees that You authorize for Pinpoint. You are responsible for all fees, including taxes, associated with Your use of the Service. By using the Service, You agree to pay Pinpoint any charge incurred in connection with Your use of the Service. If You dispute the matter, contact Pinpoint Billing at firstname.lastname@example.org. You are responsible for providing us with a valid means of payment for paid subscription plans. Accounts with free subscription plans are not required to provide payment information.
- Invoicing for invoiced Users. You agree to pay the fees in full, up front without deduction or setoff of any kind, in U.S. Dollars. You must pay the fees within thirty (30) days of the Pinpoint invoice date. Amounts payable under these Terms of Service are non-refundable, except as otherwise provided in these Terms of Service. If You fail to pay any fees on time, Pinpoint reserves the right, in addition to taking any other action at law or equity, to (i) charge interest on past due amounts at 1.0% per month or the highest interest rate allowed by law, whichever is less, and to charge all expenses of recovery, and (ii) terminate the applicable order form. You are solely responsible for all taxes, fees, duties and governmental assessments (except for taxes based on Pinpoint's net income) that are imposed or become due in connection with the Service.
- Ownership and Feedback. The Services are made available on a limited license or access basis, and no ownership right is conveyed to You, irrespective of the use of terms such as “purchase” or “sale”. Notwithstanding anything to the contrary, except for the limited license rights expressly provided in these Terms of Service, Pinpoint and its licensors have and retain all right, title and interest, including all intellectual property rights, in and to the Services, and Pinpoint Technology and Customer Account Data. No work product of any kind is provided under these Terms of Service or any other agreement. At no time during or after the term of this agreement shall any artifact exist that could be considered Your property other than the aforementioned Source System Data. From time to time, You may choose to submit feedback or Service enhancement requests in the course of using the Services. You hereby assign to Pinpoint all right, title and interest in and to any suggestions, enhancement requests, communications, recommendations or other advice or feedback (“Feedback”) that You or Your Users provide to Pinpoint relating to the Services or any of the Pinpoint Technology made available to You or Your Users, or the Services provided by Pinpoint to You hereunder. Feedback specifically excludes Source System Data or Your Confidential Information.
- Confidentiality. Except as otherwise set forth in these Terms of Service, each party agrees that all Confidential Information disclosed to such party (“Receiving Party”) by the disclosing party ("Disclosing Party") constitutes the confidential property of the Disclosing Party. Any Pinpoint Technology and any performance information relating to the Services shall be deemed Confidential Information of Pinpoint without any marking or further designation. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party's nondisclosure obligation shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and, if lawfully permitted, with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.
Term and Termination.
- Term. These Terms of Service shall remain in effect for the Term, unless sooner terminated as permitted herein.
- Termination. You may close Your Account at any time. Pinpoint may terminate Your Account at any time upon thirty (30) days written notice to You for any or no reason. Unless either party cancels Your subscription prior to expiration of the current Term, Your subscription plan will automatically renew for another Term of a period equal to your initial subscription Term. You will provide any notice of non-renewal through the means Pinpoint designates, which may include account settings in your Account or contacting Pinpoint’s support team at email@example.com. Cancelling Your subscription means that You will not be charged for the next billing cycle, but you will not receive any refunds or credits for amounts that have already been charged. All renewals are subject to the Services continuing to be offered and will be charged at the then-current rates.
- Effect of Termination. Upon termination of Your Account, the access and use rights and license granted in Section 3 shall terminate immediately and You and Your Users shall no longer have any right to use or access any Services, or any information or materials provided by Pinpoint in connection with the Services, including Pinpoint Confidential Information. Pinpoint will delete Source System Data from the Services within thirty (30) days, after the termination of Your Account upon Your written request to firstname.lastname@example.org and all Source System Data will be retained by Pinpoint if You do not request deletion. If Pinpoint elects to terminate Your Account for any or not reason, Pinpoint shall refund to You all amounts paid in advance, if any, for use of the Services after the termination date on a pro-rata basis as its sole and exclusive obligation and Your sole and exclusive remedy.
- Survival. The following provisions will survive any termination or expiration of these Terms of Service: Sections 4.4, 4.5. 5, 6, 7.3, 7.4, 8.3, 9, 10.2, 11, 12, 13, 14, and 15.
- Pinpoint Warranties. Pinpoint warrants that during the Term, the Services shall, when properly used in the manner authorized by these Terms of Service shall function in substantial conformity with the applicable Service documentation for the subscription plan elected. For any breach of the warranty herein, uncured by Pinpoint within thirty (30) days of reporting such warranty defect, Your sole and exclusive remedy shall be to terminate Your Account and Pinpoint shall refund to You all amounts paid in advance, if any, on a pro-rata basis corresponding to the period of discontinuation as its sole and exclusive obligation. Notwithstanding the foregoing, this warranty shall not apply to any non-conformity resulting from a modification of or defect in the Services that is made or caused by any person other than Pinpoint or a person acting at Pinpoint’s direction. Warranty is fully excluded for all free subscription plans for the Service.
- Your Warranties. You represent and warrant that You have the legal power and authority to enter into these Terms of Services and that that the Source System Data provided by You in connection with these Terms of Service does not and will not violate any applicable law or regulation and that You have obtained any necessary consents to use and provide the Source System Data to Pinpoint. In the event of any breach, or reasonably anticipated breach, of any of Your warranties herein, in addition to any other remedies available at law or in equity, Pinpoint will have the right to immediately, in Pinpoint’s sole discretion, suspend any related Services or terminate Your Account if deemed reasonably necessary by Pinpoint to prevent any harm to Pinpoint or its business.
- DISCLAIMER. EXCEPT FOR THE WARRANTIES EXPRESSLY STATED ABOVE, TO THE MAXIMUM EXTENT ALLOWED BY LAW, PINPOINT DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING WARRANTIES ARISING UNDER STATUTE, WARRANTIES OF MERCHANTABILITY, ACCURACY, TITLE, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTIES ARISING FROM USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, PINPOINT DOES NOT GUARANTEE THAT (A) THE SERVICES WILL PERFORM ERROR-FREE OR UNINTERRUPTED, OR THAT PINPOINT WILL CORRECT ALL ERRORS IN THE SERVICES; (B) THE SERVICE WILL OPERATE IN COMBINATION WITH YOUR CONTENT OR APPLICATIONS, OR WITH ANY OTHER SOFTWARE, HARDWARE, SYSTEMS, OR DATA; AND (C) THAT ANY SERVICES, INFORMATION OR OTHER MATERIAL THAT YOU OBTAIN FROM PINPOINT UNDER THIS AGREEMENT, WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS.
- Limitation of Liability. NEITHER PARTY (NOR ITS SUPPLIERS) SHALL BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR COST OF COVER OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. PINPOINT’S LIABILITY TO YOU SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID AND/OR TO BE PAID BY YOU DURING THE LAST 12 MONTHS PRIOR TO THE CLAIM.
- By Pinpoint. Pinpoint agrees to defend, indemnify and hold You harmless from and against any loss, claim, demand, cost, liability, damage, judgment or settlement, including attorneys’ fees, arising from or relating to (i) any third-party claim alleging that a Service, when used as authorized hereunder, (a) violates applicable law, or (b) infringes a patent or registered copyright, each enforceable in a country that is a signatory to the Berne Convention. Pinpoint’s indemnification obligation under this Section 10.1 is subject to Pinpoint receiving (a) prompt written notice of such claim (provided, however, that a delay in notification does not excuse Pinpoint’s obligations except to the extent Pinpoint is materially prejudiced by such delay); (b) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (c) Your reasonable cooperation. If Your use of a Service is (or in Pinpoint’s opinion is likely to be) enjoined, if required by settlement, or if Pinpoint determines such actions are reasonably necessary to avoid material liability, Pinpoint may, at its option and in its discretion: (x) procure a license for the continued use of the Service; (y) substitute a substantially functionally similar Service; or (z) terminate Your Account and refund any prepaid amounts, if any, for the periods after the termination date. Notwithstanding the foregoing, Pinpoint’s indemnification obligations above do not apply: (1) if the Service is modified by You or a third party acting on its behalf, but solely to the extent the alleged infringement is caused by such modification; (2) if the Service is used in combination with any non-Pinpoint service, software or equipment without Pinpoint’s approval, but solely to the extent the alleged infringement is caused by such combination; (3) to unauthorized use of the Services which gave rise to the claim; (4) to any claim arising as a result of Source System Data or circumstances covered by Your indemnification obligations in Section 10.2; (5) if You settle or make any admissions with respect to a claim without Pinpoint’s prior written consent; or (6) if the total aggregate fees we receive with respect to Your subscription plan for the Services in the twelve (12) month period immediately preceding the claim is less than US$50,000. THIS SECTION 10.1 STATES PINPOINT’S SOLE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH ANY SERVICE OR OTHER ITEMS PROVIDED BY PINPOINT UNDER THESE TERMS OF SERVICE.
- By You. You agree to defend, indemnify and hold harmless Pinpoint from and against any loss, claim, demand, cost, liability, damage, judgement or settlement, including attorneys’ fees, arising from or relating to any claim brought by a third party alleging that (i) Source System Data infringes or misappropriates the intellectual property rights of a third party or violates applicable law including those related to data privacy, or (ii) You have provided Pinpoint with or access to personal information of any User without first obtaining the individual’s consent to provide the information to Pinpoint if required by applicable law or regulation. Your indemnification obligation under this Section 10.2 is subject to You receiving (a) prompt written notice of such claim (provided, however, that a delay in notification does not excuse Your obligations except to the extent You are materially prejudiced by such delay); (b) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (c) Pinpoint’s reasonable cooperation.
- Governing Law. These Terms of Service will be governed by and construed in accordance with the applicable laws of the State of Delaware, without giving effect to the principles of that State relating to conflicts of laws. In the event of any controversy or claim arising out of or relating to these Terms of Service, the parties will consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach settlement within a period of sixty (60) days, either party may pursue relief as may be available pursuant to this Section 11 (Governing Law). All negotiations pursuant to this Section 11 will be confidential and treated as compromise and settlement negotiations for purposes of all rules and codes of evidence of applicable legislation and jurisdictions.
- Publicity Rights. You agree that Pinpoint may identify You as a Pinpoint customer in its promotional materials. You may request that Pinpoint stop doing so at any time by submitting written notice via e-mail to: email@example.com.
- Export Restrictions. You agree to comply with any applicable export and import laws and regulations that apply to Your use of the Services. You shall not (and shall not allow any third-party to) remove or export from the United States or allow the export or re-export of any part of the Services or any direct Service thereof: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the U.S. Commerce Department’s Table of Denial Order Forms or U.S. Treasury Department’s list of Specially Designated Nationals; (c) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. You represent and warrant to Pinpoint that (a) neither You nor any User is located in or will access the Services from any country that is subject to a U.S. trade embargo, and (b) neither You nor any User is on any restricted party list maintained by the U.S. government (e.g. the OFAC consolidated Personnel Screening List, BIS Denied Persons List or the Unverified List, or similar list attained by the export trade control agencies and offices of the US Government) and You agree to notify Pinpoint promptly if You or any User appears on any such restricted party list during the Term.
- Changes to these Terms of Service. Pinpoint may update or modify these Terms of Service from time to time, including any referenced policies and other documents. If Pinpoint modifies these Terms of Service during the Term, the modified version will only be effective upon the next renewal term. If You object to the updated Terms of Service, as Your exclusive remedy, You may choose not to renew Your subscription plan and terminate these Terms of Service and your Account.
- General Provisions. Any notice under these Terms of Service must be given in writing. Notice may be given to You via email or through Your Account. Notices will be deemed given upon the first business day after the notice is sent. You may provide notice to Pinpoint Software Inc., at: 11801 Domain Blvd 3rd Floor, Austin, TX 78758, Attn: CEO. Notices sent by You to Pinpoint will be deemed given upon receipt. Neither party shall be liable to the other for any delay or failure to perform any obligation under these Terms of Service (except for a failure to pay Fees) if the delay or failure is due to unforeseen events which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power of telecommunications or data networks or services, or refusal of a license by a government agency. You may not assign these Terms of Service to a third party without Pinpoint’s prior written consent, which consent will not be unreasonably withheld. These Terms of Service are the entire agreement between Pinpoint and You relating to the Services and supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Services or any other subject matter covered by these Terms of Service. If any portion of these Terms of Service is found to be void or unenforceable, the remaining provisions of these Terms of Service shall remain in full force and effect. No failure or delay by the injured party to these Terms of Service in exercising any rights under these Terms of Service shall operate as a waiver of such rights, nor shall any single or partial exercise of such rights preclude any other or further exercise of such rights or the exercise of any rights under these Terms of Service at law or equity. The parties are independent contractors. These Terms of Service shall not be construed as constituting either party as a partner of the other or to create any other form of legal association that would give on party the express or implied right, power or authority to create any duty or obligation of the other party.