API Terms of Service
TERMS OF SERVICE FOR ENTERPRISE CLIENTS OF ITEMIZE API RECEIPT PROCESSING SERVICES
The following sets forth the terms and conditions on which Itemize Corp. offers to provide its API receipt processing services to enterprise clients (the “Services”). In these Terms of Service, we refer to Itemize Corp., a Delaware corporation, as “Itemize,” “we” or “our” and we refer to an enterprise client that uses or subscribes to the Services as “you,” “your” or “client.”
If you are interested in subscribing for Services, click here, and we will forward to you a purchase order for the particular Services you seek. If you enter into a purchase order to subscribe for Services (a “Purchase Order”), it will constitute a binding contract between you and Itemize for the Services on the terms and conditions and for the fees set forth in the Purchase Order and these Terms of Service.
In the event of any manifest conflict between the terms of the Purchase Order and these Terms of Service, the provisions of the Purchase Order shall control.
Eligibility of Clients
The Purchase Order must be entered into by an individual who is duly authorized to act on behalf of the client and to bind the client to this contract.
When you establish an Itemize account, you must furnish Itemize with an e-mail address. You may also be requested to provide your name, contact person or persons, the country in which you are located and other information we may need to serve you better.
You must be located in a jurisdiction in which it is not illegal for Itemize to provide its services.
You may establish an Itemize account in one of several ways. You may also contact us at firstname.lastname@example.org.
Description of the Services
Itemize utilizes its proprietary technology to digitally read and store the information contained in digital and paper receipts. A “Receipt” is a document confirming that on an identified date a specific amount of money has changed hands from an identified buyer to a seller in exchange for goods or services that have been delivered or are expected to be delivered immediately. The Services process data from Receipts that meet the following scope parameters:
- Country: Receipts produced by vendors in the selected country, written in the language and paid in the currency of the selected country
- File Technical Parameters: (1) Image size: 250 KB to 750 KB maximum file size (a “large” file generated by an IPhone); (2) Image resolution: 300 Pixels per Inch (PPI) minimum; (3) one Receipt per file
- Document Formats: standard format Receipts that conform to the quality thresholds and content requirements set forth below in the section entitled “Quality Thresholds and Content Requirements of Receipts”
- Legibility: documents legible to a machine OCR device and not damaged, misprinted, obscured, or otherwise deformed in a manner that impedes machine readingThe Services can not process documents that do not meet the foregoing criteria. The following are some examples of documents that are not receipts:
- Confirmations or reservations lacking a deposit amount or any indication of payment;
- Shipping notices corresponding to receipts;
- Return notices lacking an indication of the payment amount refunded;
- Notifications of future payments due or amounts due;
- Bank ATM deposit or withdrawal records, account notices, and check images;
- Non-monetary transactions, such as loyalty program activity and point program activity; and
- Notifications that Receipts or other documents are ready for downloading.
Itemize provides its API Receipt processing services to enterprises under several plans that provide for processing and reporting different levels of data detail, for different fees on a monthly or annual basis. These plans are described in the Purchase Order. Certain plans may provide for administrative and other fees. These fees will be specified in the Purchase Order. The plans under which the Services are offered, the features of these plans and the associated fees may change from time to time.
We may sub-contract the provision of a portion of the Services to third persons in our discretion. Itemize has entered into a contract with a nationally recognized third-party provider of cloud-based storage and processing services. We hold and process the information that you upload to your Itemize account under this contract.
While we believe that we take reasonable and customary measures to ensure that information stored in clients’ accounts is reliable for its intended use, we do not provide any assurances as to the accuracy, correctness or completeness of any data, images, documents or other information (referred to collectively as “information”) that we process from the documents a client uploads to its Itemize account or that is contained in report or other document we provide to the client. We also disclaim other representations and warranties about the Itemize services as set forth below in the section entitled “Disclaimer of Warranties; Limitations on Liability.”
Quality Thresholds and Content Requirements of Receipts
Receipts that are not rendered, captured, and submitted in substantial compliance with the following quality thresholds and content requirements will not be processed successfully:
- Authenticity: Receipts must be produced by actual vendors listed with, or known to, commercially available b2b reference services
- Originality: images must be “first generation” images of an original paper document. (A second generation image is a photograph of a printout captured previously with another camera or scanner);
- Creasing and damage: the Receipt must be shown in an unaltered state from when it was originally issued. The Receipt cannot be crumpled, bent, folded, stained, torn, or otherwise altered;
- Focus: the image must be properly focused on the document in order to read the characters;
- Rendering: Receipts must be machine printed by commercial receipt printing devices that conform to industry standards for receipt printing; handwritten characters do not process;
- Ink and paper color: conforming receipts are printed in black ink on white paper;
- Lighting: images must be sufficiently and evenly illuminated for OCR to process;
- Level: The receipt must be on a common or level plane for successful capture;
- Skewing: photos must not be skewed by more than 5 degrees on the X-Y or Z axis;
- Camera distance: images should generally be captured from a distance of 10-14 inches from a Receipt; and
- Background noise: The Receipt should be captured on a monochromatic background with no/minimal background elements generating visual noise around the Receipt.
- Content Requirements: Receipts must meet basic standards for layout, structure, naming, and content conventions related to:
- Vendor name: the name must be printed in text characters near the top of the document;
- Location address: the address should be in a standard format and complete consistent with national address database standards, and located near the top of the document;
- Date of purchase: the date should be formatted in a standard format;
- Financial values associated with the transaction: the items table should appear in the middle of the document, with totals appearing near the bottom of the document; and
- Taxes: the maximum number of tax value fields may not exceed two.
Proprietary Rights of Itemize
The technology, trade secrets, know how and other intellectual property that Itemize uses to provide its services is proprietary. It is owned exclusively by Itemize and protected by applicable law. Clients do not acquire any ownership or other interest of any kind in any of this property as a result of using the Services, establishing an Itemize account, entering into a Purchase Order, or otherwise. However, clients are granted a limited, non-exclusive, non-assignable and non-sublicensable license to use the intellectual property solely in connection with their use of the Services in accordance with these Terms of Service and Purchase Order. This license automatically terminates when a client’s Itemize services are terminated for any reason.
Clients’ Use of the Itemize Services
You may only use the Services in strict compliance with the terms and conditions set forth in these Terms of Service, the Purchase Order and any Plan to which you have subscribed and in accordance with all laws, rules and regulations of any governmental entity that are applicable to you. You shall be solely responsible for all activities in and transmissions to and from your Itemize account. Itemize shall have no responsibility or liability for any such activity or transmission.
You are solely responsible for the secrecy and for maintaining the confidentiality of your user ID and password. You shall immediately notify Itemize if you become aware of any unauthorized use of your password or Itemize account. Itemize shall not be responsible or liable in any way if you are unable to locate or reset a password.
You shall use reasonable efforts to upload to your Itemize account clear images of Receipts that substantially conform to the Quality Thresholds and Content Requirements set forth above. Itemize will have no responsibility or liability for failing to process any other document or any Receipt that does not meet these quality thresholds and content requirements, or for processing it inaccurately, incorrectly or incompletely.
In the event that more that one percent (1%) of the documents that you present to Itemize for processing do not constitute Receipts, you shall fully cooperate with Itemize, and implement such measures as Itemize may reasonably request, in a mutual effort to reduce to less than one percent (1%) the number of documents presented to Itemize for processing that are not Receipts. You will notify us as promptly as reasonably practicable after you become aware that the per second or per day volume of documents you present to Itemize for processing is likely to increase substantially from historical experience. You shall use commercially reasonable efforts to provide to Itemize such information, documents, data, instructions directions or advice as Itemize reasonably requests in connection with its performance of the Services.
You may not upload to your account any document that contains personally identifiable or sensitive information pertaining to you or any other person, such as a driver’s license, passport, social security card, birth certificate, a personal check, a bank or credit card statement or other financial record that contains the bank account name or account number or other personally sensitive information, unless all personally identifiable and sensitive information is first deleted or redacted from the document. You agree that Itemize may delete any information described in this paragraph in its sole discretion, but we shall have no responsibility or liability if we fail to do so if such information appears in any report we provide to you.
You also agree that you will not upload to your Itemize account any information relating to any individual’s health, medical condition or care. However, you may upload to your account pharmacy receipts and other purchase documents provided by health care providers as long as an individual cannot be identified therefrom. By uploading such documents, any privacy or other protections afforded under the US Health Insurance Portability and Accountability Act are deemed waived.
You have the right at any time to change or delete any information contained in your account by logging into your account and following the appropriate prompts provided.You may not, or allow any other person to, upload to your account any information that:
- misappropriates, violates or infringes any patent, trademark, copyright or other intellectual or other property right of any third person;
- violates, or encourages any conduct that would violate, any applicable law, rule or regulation;
- promotes illegal or harmful activities or substances or could give rise to civil liability;
- is violent or threatens or promotes violence or conduct that would be threatening to any person;
- is defamatory, disparaging, abusive or harassing of any person or fraudulent, misleading or deceptive; or
- is vulgar, obscene or pornographic.
Itemize may delete from your account any information described in this paragraph in its sole discretion without any liability to you or anyone else.
Furthermore, you shall not take or engage in, or permit any other person to take or engage in, any action or conduct that does or attempts to:
- decipher, decompile, disassemble or reverse engineer the Itemize system or any of our services, or any portion of them;
- probe, scan or test the vulnerability of any Itemize system or network or breach or otherwise compromise any of our security or authentication measures;
- avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Itemize to protect Itemize services or information stored by Itemize;
- access or search Itemize services or the information stored by Itemize through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and search engines provided by Itemize or web browsers generally available to the public;
- interfere with any other client’s or other user’s access to our services, whether by sending a virus, overloading, flooding, spamming or mail-bombing, or otherwise;
- access the account or information of any other client or other user of Itemize services;
- reproduce, copy, sell, resell, assign, sublicense, create any derivative work any of the Itemize services.; or
- otherwise commercially exploit the Itemize API services except to provide expense reporting or management services to your customers and clients in accordance with the provisions of these Terms of Service and any Purchase Order.
You will not remove, alter, modify or obscure any element, part or feature of any product identification, trademark, service mark, logo or legal notice included in the Itemize services or used by Itemize to market, promote or provide Itemize services. You may not use any Itemize technology, trade secret, know how or other intellectual property, including any trademark, service mark or logo, for any purpose other than in connection with your use of the Services in compliance with these Terms of Service and any guidelines established by Itemize with respect to the use of its trademarks, service marks or logos.
You shall keep confidential all of our “Confidential Information” (as defined later in this paragraph). You shall not use our Confidential Information for your own benefit except as expressly permitted by these Terms of Service. You shall not disclose any of our Confidential Information to any third Person (other than your employees, agents or representatives (“Representatives”) who have a need to know such Confidential Information in connection with the performance of their duties or responsibilities to you and who are informed of the confidential nature thereof) without our express prior written consent, except as expressly (i) permitted by these Terms of Service, or (ii) requested or required by applicable law, subpoena, interrogatory, request for information or documents, deposition, civil investigative demand or other governmental or self-regulatory request, provided that with respect to this clause (ii), you shall not make any such disclosure without first notifying Itemize, allowing us a reasonable opportunity to seek injunctive relief from (or a protective order with respect to) the obligation to make such disclosure, unless such notification is not allowed by law, and fully cooperating with Itemize, at our expense, in any effort by us to seek any such relief. “Confidential Information” means and includes any confidential, non-public or proprietary information (whether received before or after your acceptance of these Terms of Service and whether transmitted orally or in writing (including by e-mail) or stored electronically) relating to our business, operations, financial condition or prospects, products and services and the Intellectual Property. “Intellectual Property” includes: all trade secrets, ideas, inventions, discoveries, innovations, technology, know-how, designs, developments, devices, computer programs, software, algorithms, object and source code, applications, tools, methods, processes, report formats, graphics, images, interactive design techniques and all documentation with respect to any of the foregoing (whether or not patented or patentable or reduced to practice), and all enhancement and improvements of any thereof, and all patents and patent applications related thereto and all other intellectual property or other proprietary rights of any kind or nature whatsoever; provided, however, that Confidential Information does not include (i) any information that is generally available to the public through no fault of yours or any of your Representatives; (ii) any information that was in your possession prior to its disclosure by Itemize, as evidenced by your contemporaneous written records; or (iii) any information that you receive from a third person that to your knowledge, after reasonable inquiry, is under no obligation or duty of confidentiality or non-disclosure with respect to such Confidential Information. You shall be responsible and liable for any disclosure or use by any of your Representatives of our Confidential Information in violation of this Agreement.
You may not terminate your account with Itemize at any time during the term specified in your Purchase Order. Itemize will terminate your account immediately if it determines that you have violated these Terms of Service, if you use your account in violation of any applicable law or if Itemize is required to do so by applicable law. Upon any termination, you must cease all use of the Services.
Itemize will no longer bill you after any termination of your account; however, you will be responsible for any fees or other charges you have incurred through the date of termination. You will not be entitled to a refund of any amount you have paid us if the termination occurs in the middle of a monthly or annual payment period.
Notwithstanding any termination of your Itemize account, all of your obligations under these Terms of Service shall survive and remain unaffected, except that you will no longer be obligated for any further fees or other charges that have not accrued as of the date of termination.
Itemize shall indemnify and hold harmless client and each of client’s stockholders, directors, officers, employees and agents (“Client Indemnified Parties”) from and against any and all third-person claims, demands, actions, suits or other proceedings, or any settlement of any thereof, damages, losses, liabilities, costs or expenses (including attorneys’, accountants’ and other professionals’ fees and expenses) (“Third-Person Claims”) that are sustained, suffered or incurred by, or which may be asserted against, any or all of the Client Indemnified Parties by reason, as a result or arising out of or in connection with (i) any infringement of such third person’s intellectual property rights by the Services as provided to Client pursuant to this Agreement; or (ii) any material breach by Itemize of its Agreement with such client that does not result from or arise out of or in connection with any breach by such client of such Agreement.
If a Third-Person Claim of infringement for which Itemize may be obligated to indemnify a client pursuant to the previous paragraph has been asserted, or in our reasonable opinion is about or likely to be asserted, Itemize may, at its option either: (i) procure for client the right to continue using the Services; (ii) replace or modify the Services so as to eliminate the infringement; (iii) terminate the Services and any Purchase Order and refund all pre-paid fees covering future use of the Service; or (iv) defend the action on such client’s behalf pursuant to said indemnification obligation.
Client shall indemnify and hold harmless Itemize and each of its affiliates and their respective stockholders, members, directors, managers, officers, employees or agents (“Itemize Indemnified Parties”) from and against any and all Third-Person Claims that are sustained, suffered or incurred by, or which may be asserted against, any or all of the Itemize Indemnified Parties by reason, as a result or arising out of or in connection with (i) any action taken or omitted to be taken by Client relating to this Agreement or the Services; (ii) any infringement of such third Person’s intellectual property rights as a result of Client using the Services; or (iii) any breach by Client or any Client Indemnified Party of any provision of this Agreement.
In the event a Client Indemnified Party or an Itemize Indemnified Party becomes subject to a Third-Person Claim for which it (the “Indemnified Party”) intends to seek indemnification under this Section, the Indemnified Party shall provide notice to Itemize, or you, as the case may be (the “Indemnifying Party”), as soon as reasonably practicable after the Indemnified Party obtains knowledge of such Third-Person Claim, and in any event within ten (10) business days after it obtains such knowledge, which notice shall describe in reasonable detail the Third-Person Claim and the basis for the Indemnified Party’s right to indemnification under this Section. The Indemnifying Party shall have the right to assume and control the defense and settlement of such Third-Person Claim with counsel of recognized standing of its choice by giving notice to the Indemnified Party as soon as reasonably practicable after receiving the notice of such Third-Person Claim from the Indemnified Party. The Indemnified Party shall fully cooperate with the Indemnifying Party in connection with the defense of such Third-Person Claim, at the cost and expense of the Indemnifying Party, and shall be entitled to participate in (but not control) such defense with counsel of its choice and at its own sole cost and expense. If the Indemnifying Party assumes the defense of such Third-Person Claim, the Indemnified Party shall not settle the Third-Person Claim without the express prior written consent of the Indemnifying Party and the Indemnifying Party shall not settle such Third-Person Claim without the express prior consent of the Indemnified Party, unless the Indemnified Party is released from all liability in connection with such settlement and is not required to admit to any wrong-doing in connection therewith. If the Indemnifying Party does not assume the defense of such Third-Person Claim, the Indemnified Party shall defend the Third-Person Claim diligently and in good faith with counsel of recognized standing of its choice and shall not settle the Claim without the express prior consent of the Indemnifying Party, which consent shall not be unreasonably withheld, delayed or conditioned.
Disclaimer of Warranties; Limitations of Liability
Itemize provides its services on an “as is” and “as available” basis and assumes no responsibility or liability for the availability of its services or the timeliness with which services are provided, except as otherwise expressly provided in these Terms of Service or the applicable Purchase Order.
Itemize shall in no event be responsible or liable for or as a result of your use or inability to use the Services or any information stored by Itemize in your account for any reason, including loss of electric or other power or internet connection, a security breach of your account, governmental intervention or any other matter. Nor are we responsible or liable for the loss, unauthorized use, corruption, accuracy, completeness or correctness of any such information or of any information or report provided to you by Itemize in rendering the Services to you. We are also not responsible or liable for any damage to your computer or other hardware or systems as a result of any download or transfer of information from your account or for any damage, loss, liability, cost or expense you suffer or incur as a result of furnishing to any third person any report or data obtained from our services that is inaccurate, incomplete or incorrect. These limitations of liability apply even if Itemize is negligent.
ITEMIZE DOES NOT MAKE, AND EXPRESSLY DISCLAIMS, ANY REPRESENTATION OR WARRANTY, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE ITEMIZE SERVICES, INCLUDING ANY REPRESENTATION OR WARRANTY WITH RESPECT TO THE MERCHANTABILITY OF THE SERVICES; THEIR FITNESS FOR ANY PARTICULAR PURPOSE; THAT THE SERVICES WILL BE USEFUL FOR, OR MEET THE REQUIREMENTS OR EXPECTATIONS OF, ANY CLIENT OR ITS CUSTOMERS; THAT THE SERVICES WILL BE FREE FROM ERROR OR WILL PRODUCE ACCURATE, COMPLETE OR CORRECT INFORMATION; OR THAT THE USE OF THE SERVICES DOES NOT INFRINGE UPON THE INTELLECTUAL PROPERTY OR OTHER PROPRIETARY RIGHTS OF ANY THIRD PERSON.
Itemize licenses software, tools and other intellectual property from third persons (“Licensors”). The licensed intellectual property may be incorporated into our system and/or used to provide the Services. The Licensors do not make, and expressly disclaim, any representation or warranty with respect to such licensed intellectual property or the use of it, or otherwise. As between us and our Licensors, only we have any responsibility to our clients under these Terms of Service.
No advice or other information you obtain from Itemize about our services or any other matter, whether orally or in writing, shall constitute a representation or warranty by Itemize unless it is also expressly set forth in these Terms of Service or in the applicable Purchase Order.
IN NO EVENT WILL ITEMIZE BE LIABLE OR RESPONSIBLE FOR ANY EXEMPLARY, INDIRECT, INCIDENTAL, CONSEQUENTIAL (INCLUDING LOST REVENUE, LOST PROFITS, OPPORTUNITY COSTS OR THE COST OF SUBSTITUTE OR REPLACEMENT SERVICES) OR OTHER SPECIAL DAMAGES OR PUNITIVE DAMAGES FOR OR IN RESPECT OF ANY ACT OR OMISSION IN CONNECTION WITH OR RELATING TO THE PROVISION OF ITEMIZE SERVICES, THE FAILURE TO PROVIDE SERVICES, ANY ERROR OR OMISSION IN PROVIDING THE SERVICES, ANY BUGS, VIRUSES, TROJAN HORSES OR THE LIKE (REGARDLESS OF SOURCE) OR ANY OTHER MATTER WHATSOEVER, WHETHER OR NOT ANY SUCH DAMAGES COULD BE FORESEEN AND WHETHER OR NOT ITEMIZE HAS BEEN WARNED THAT SUCH DAMAGES COULD ARISE. FURTHER, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ITEMIZE SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY LOSS OF REVENUES OR PROFITS OF ANY CLIENT AS A RESULT OF SUCH CLIENT’S LOSS OF ANY CUSTOMER.
The limitations on liability provided in the prior paragraph shall not apply to the indemnification obligations of Itemize under these Terms of Service.
In the event of any breach by itemize of these Terms of Service with respect to any client, the liability of Itemize to such client for any such breach shall be limited to the amount of fees actually paid to and received by Itemize from such client in the three months prior to such breach. A client must commence an action, suit or other proceeding with respect to such breach within one year after the occurrence of such breach.
Certain Regulatory Matters
You may not use, export, re-export, import or transfer Itemize API services except in full compliance with the laws of the United States. The laws of the United States prohibit the export or re-export of certain products and services into any country embargoed by the United States, or to any person on the list of Specially Designated Nationals of the US Department of the Treasury or the Denied Person’s List or Entity List of the US Department of Commerce.
If a client believes that any information Itemize provides to it infringes any of its copyrights, the client should immediately notify Itemize Designated Copyright Agent by e-mail at email@example.com (subject line: “Designated Copyright Agent”) or by mail at Itemize Corp., PO Box 3510 New York, New York 10163 (Attention: General Counsel). To be effective, the notice must be physically signed, electronically or manually, by the owner of the copyright claimed to be infringed or by a person authorized to act on its behalf and must contain the following information:
- a description of the copyrighted work that the client claims has been infringed;
- a description of the location in the Itemize services of the claimed infringing material that is reasonably sufficient to enable Itemize to identify and locate the material;
- the address, telephone number and e-mail address at which Itemize can contact the client;
- a statement that the client believes in good faith that the use of the material by Itemize has not been authorized by the owner of the copyright, its agent or applicable law; and
- a statement under the penalty of perjury that the information provided in the notice is accurate and complete and that you are either the owner of the copyright that is alleged to be infringed or are duly authorized to act by the copyright owner, its agent or applicable law.
Other Miscellaneous Terms of Service
Itemize may amend or otherwise modify any provision of these Terms of Service at any time and from time to time in its sole discretion. Itemize will post on its website any amendment or modification and it shall become effective immediately, provided that Itemize will use reasonable commercial efforts to provide at least five business days’ prior notice of any material amendment or modification either by e-mail to clients at the last e-mail address provided to us, or by posting the notice on its website. By continuing to use Itemize services after any amendment or other modification becomes effective, you automatically accept and agree to be bound by the amendment or modification and it becomes part of the contract between you and Itemize.
- A client may notify Itemize for any of the following reasons at firstname.lastname@example.org or by mail at PO Box 3510, New York, New York 10163 (to the attention of General Counsel):
- to notify Itemize of any unauthorized use of your password or Itemize account;
- to ask any questions about these Terms of Service;
- to provide any comment or suggestion concerning your account or Itemize services, generally; or
- to lodge a complaint about the implementation of these Terms of Service with respect to the client’s account.
Any such notice shall include the exact name and postal or email address of an individual who is authorized to act on your behalf.
These Terms of Service, and any applicable Purchase Order, shall be governed by, interpreted and enforced in accordance with the laws of the State of New York applicable to contracts made and to be performed entirely in the State of New York, without reference to the principles of conflict of laws of the State of New York. Any dispute that arises under or relates these Terms of Service or such Purchase Order (or the breach or alleged breach of these Terms of Service or Purchase Order) or the Services shall be brought before a State or Federal court located in the City, County and State of New York. You irrevocably and unconditionally agree and consent to the exclusive jurisdiction of any such court for the purpose of resolving any such dispute and agree that you will not in any forum object to such jurisdiction on the grounds that such court is an inconvenient forum, or that there is a more convenient forum, for the resolution of such dispute. YOU FURTHER AGREE THAT YOU WILL NOT REQUEST, AND YOU IRREVOCABLY AND UNCONDITIONALLY WAIVE, ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION, SUIT OR OTHER PROCEEDING TO RESOLVE SUCH DISPUTE.
You recognize and agree that any breach by you or any of your Representatives of any provision of these Terms of Service will result in irreparable harm to us that may not adequately be remedied by the payment of monetary damages. Therefore, you agree that in the event of the breach or threatened breach by you or any of your Representatives of any provision of these Terms of Service, we shall be entitled to seek specific performance and/or preliminary and permanent injunctive and other appropriate equitable relief to remedy such breach or prevent such threatened breach without posting any bond or other security and without proving that monetary damages would be an inadequate remedy. The equitable relief contemplated by this paragraph shall be in addition to, and not in lieu of, any or all other remedies available to us, including the remedy of monetary damages, all of which remedies shall be cumulative and not exclusive.
In any action, suit or other proceeding to interpret or enforce these Terms of Service or any Purchase Order, the prevailing party shall be entitled to recover its costs and expenses (including reasonable fees and expenses of counsel) in connection with such action, suit or other proceeding and enforcing any judgment or order obtained.
You agree that you will not commence or participate in any claim or claims brought as any type of class, coordinated or aggregated action, suit or other proceeding, or receive or retain, and you irrevocably and unconditionally waive any and all right to, any monetary or other benefit as a result of any such action, suit or proceeding.
If any provision of these Terms of Service or any Purchase Order is held by a court of competent jurisdiction to be illegal, invalid or otherwise unenforceable as applied to any client in any jurisdiction, the remaining provisions of these Terms of Service or Purchase Order, as applicable, shall be unaffected thereby and shall be enforced in accordance with their respective terms; such illegal, invalid or unenforceable provision shall be enforced in accordance with its terms against any client in any jurisdiction as to which or in which such provision is not held to be illegal, invalid or unenforceable; and such illegal, invalid or unenforceable provision shall be modified by such court to the minimum extent possible (by adding or deleting words or phrases, limiting the scope or duration of such provision, substituting therefor another, enforceable, provision or otherwise) so as to be enforceable against such client in such jurisdiction to the maximum extent possible.
These Terms of Service shall inure to the benefit of you and us and our respective successors and permitted assigns. There are no third-party beneficiaries of these Terms of Service other our Licensors and the persons we have each agreed to indemnify under these Terms of Service and their respective successors, assigns, estates, heirs, executors and personal representatives. No customer of any client is intended to be a third-party beneficiary of these Terms of Service or any Purchase Order.
Itemize shall not be deemed to have breached these Terms of Service or any Purchase Order by reason of delay or failure in performance resulting from acts beyond its reasonable control, including any natural disaster, act of war, insurrection, terrorism, riot, civil commotion, order of any government or governmental authority or any communication line or other power failure, provided that we will use reasonable commercial efforts to minimize the effect of any force majeure.
You may not assign or transfer any rights under these Terms of Service or any Purchase Order without our express prior written consent, and any such assignment is null and void. We may assign our agreement with you in connection with a merger, consolidation or other business combination to which we are a party or by which our ownership is affected or in connection with the sale of all or substantially all of our business and assets.
The headings of the Sections in these Terms of Service are inserted for convenience of reference only and shall not alter or affect the meaning or interpretation of any provision of these Terms of Service. Any reference herein to a “person” shall include natural persons, corporations, limited liability companies, limited liability partnerships, general and limited partnerships, companies, associations, trusts and other entities of any kind or nature. As used herein, the words “including” and “includes” shall mean “including, without limitation,” or “includes, without limitation,” as the case may be, whether or not so expressed. The use of the singular form shall include the plural, and vice versa; the use of a masculine, feminine or neuter pronoun shall refer to any other appropriate pronoun, as the context requires; the word “any” means one or more; and the word “or” shall be read in the conjunctive and the disjunctive. All references in these Terms of Service or any Purchase Order to “dollars” or “$” shall mean and refer to US dollars.
These Terms of Service express our mutual intent. If any provision of these Terms of Service is deemed to be ambiguous, such provision shall be enforced in accordance with our mutual intent and shall not be construed against either of us because one of us or one of our Representatives drafted such provision, nor shall any other principle of “strict construction” apply to the interpretation or enforcement of any provision of these Terms of Service or any Purchase Order.
Adopted August 1, 2017