Tidal Terms of Use Agreement
Last Updated: May 28, 2024
PLEASE READ THIS TERMS OF USE AGREEMENT (“AGREEMENT”) CAREFULLY. THIS AGREEMENT IS A LEGAL CONTRACT BETWEEN YOU AND TIDAL CYBER, INC. (“TIDAL,” “WE,” OR “US”).
By accessing or using any Tidal website with an authorized link to this Agreement (“Site”) or Tidal’s software-as-a-solution platform (“Platform”), accessing or using any data, information, services, features or resources available or enabled via the Site or Platform (collectively with the Site and Platform, the “Services”), clicking on a button or taking any other action to signify your acceptance of this Agreement, or completing our account registration process, you: (1) agree to be bound by this Agreement and any future amendments and additions to this Agreement as published from time to time through the Services; (2) represent you are of legal age in your jurisdiction of residence to form a binding contract with Tidal; and (3) represent that you have the authority to enter into this Agreement personally and, if applicable, on behalf of any company, organization or other legal entity on whose behalf you use the Services and to bind that entity to this Agreement. The term “you” or “User” refers to the individual or legal entity, as applicable, identified as the end user when you registered through the Services. Except as otherwise provided herein, if you do not agree to be bound by this Agreement, you may not access or use the Services.
SECTION 16 CONTAINS PROVISIONS THAT GOVERN HOW TO RESOLVE DISPUTES BETWEEN YOU AND TIDAL. AMONG OTHER THINGS, SECTION 16 INCLUDES AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND US SHALL BE RESOLVED BY BINDING AND FINAL ARBITRATION. SECTION 16 ALSO CONTAINS A CLASS ACTION AND JURY TRIAL WAIVER. PLEASE READ SECTION 16 CAREFULLY. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT (AS DEFINED IN SECTION 16) WITHIN THIRTY (30) DAYS IN ACCORDANCE WITH SECTION 16.10: (1) YOU WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION; AND (2) YOU ARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.
Your use of the Services is also subject to any additional terms, conditions and policies that we separately post on the Services and any agreements that you have separately executed with Tidal (“Supplemental Terms”) which are incorporated by reference into this Agreement. To the extent there is any conflict between this Agreement and the Supplemental Terms, the Supplemental Terms will control with respect to the subject matter of such agreement. For example, we require our Enterprise Accounts (as defined below) to execute a separate Customer Agreement, and in the event of a conflict between the Customer Agreement and this Agreement, the terms of that Customer Agreement will control and supersede this Agreement solely to the extent of such conflict.
THE AGREEMENT IS SUBJECT TO CHANGE BY TIDAL IN ITS SOLE DISCRETION AT ANY TIME AS SET FORTH IN SECTION 17.12.
1. HOW THE SERVICES WORK. Tidal has developed the Services to allow users to explore how different service providers (“Vendors”) address specific adversary attack techniques in the MITRE ATT&CK® Knowledge Base. These Vendors and their products that map to MITRE ATT&CK (collectively, “Vendor Data”) are listed in the Tidal Vendor Registry (“Vendor Registry”), which is made accessible through the Platform.
PLEASE NOTE THAT, AS STATED ABOVE, THE SERVICES ARE INTENDED TO BE USED TO FACILITATE THE CONNECTION OF USERS AND VENDORS FOR THE PURPOSES OF DEFINING, MEASURING AND IMPROVING ABILITY TO DEFEND AGAINST ADVERSARY BEHAVIORS (“VENDOR SERVICES”), BUT YOU AGREE THAT TIDAL HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO ANY SERVICES OR OFFERINGS PROVIDED BY VENDORS OTHER THAN AS EXPRESSLY SET FORTH IN THIS AGREEMENT. TIDAL CANNOT AND DOES NOT CONTROL THE INFORMATION OR DATA CONTAINED IN ANY ACCOUNTS (OTHER THAN THE ARRANGEMENT AND DISPLAY OF SUCH DATA) AND THE CONDITION, LEGALITY, OR SUITABILITY OF ANY VENDOR DATA. TIDAL IS NOT RESPONSIBLE FOR AND DISCLAIMS ANY AND ALL LIABILITY RELATED TO ANY AND ALL VENDOR SERVICES. ACCORDINGLY, ANY VENDOR DATA WILL BE ACCESSED AT A USER’S OWN RISK, AND USERS MUST SATISFY THEMSELVES WITH ANY VENDOR’S CREDENTIALS. YOU ACKNOWLEDGE AND AGREE THAT YOUR ABILITY TO ACCESS THE VENDOR REGISTRY THROUGH THE SERVICES DOES NOT ESTABLISH TIDAL AS A PROVIDER OF SUCH VENDOR SERVICES.
VENDORS ARE NOT EMPLOYEES, PARTNERS, REPRESENTATIVES, AGENTS, JOINT VENTURERS, OR FRANCHISEES OF TIDAL. TIDAL DOES NOT PERFORM ANY OBLIGATIONS IN CONNECTION WITH THE SERVICES AND DOES NOT EMPLOY VENDORS TO PERFORM SUCH OBLIGATIONS. USERS HEREBY ACKNOWLEDGE THAT TIDAL DOES NOT SUPERVISE, DIRECT, CONTROL OR MONITOR THE VENDORS, BUT MAY MONITOR VENDOR DATA THROUGH THE SERVICES. THE RELATIONSHIP BETWEEN VENDORS AND TIDAL IS THAT OF AN INDEPENDENT CONTRACTOR.
2. USE OF THE SERVICES.
2.1 Services. Tidal and its suppliers own all rights, title and interest in the Services. The Services are protected by copyright and other intellectual property laws throughout the world. Subject to this Agreement, Tidal grants you a limited, non-transferable license to access and use the Services solely for your personal and/or professional purposes. If you wish to purchase a subscription on behalf of a Customer (as defined below) to use the Services, please visit https://www.tidalcyber.com/contact-us to inquire about an Enterprise Account. Tidal, its suppliers, and its service providers reserve all rights not granted in this Agreement.2.2 Updates. You understand that the Services are evolving. You acknowledge and agree that Tidal Cyber may update the Services with or without notifying you. You may need to update third-party software from time to time in order to use the Services.
2.3 Certain Restrictions. The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit Services or any portion of Services; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Services (including images, text, page layout or form); (c) you shall not use any metatags or other “hidden text” using Tidal’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from the Services; (f) you shall not access Services in order to build similar or competitive products or services; (g) except as expressly stated herein, no part of Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in Services; (i) you shall not circumvent, remove, alter, deactivate, degrade, or thwart any of the protections of the Services; (j) you will not take any action that imposes or may impose (in our sole determination) an unreasonable or disproportionately large load on our technical infrastructure; and (k) you will not interfere with or attempt to interrupt the proper operation of the Services through any virus, device, information collection or transmission mechanisms, software or routine, or access or attempt to gain access to any data, files, or passwords related to the Services through hacking, password or data mining, or any other means. Any future release, update or other addition to Services shall be subject to this Agreement. Tidal reserves all rights not granted in this Agreement. Any unauthorized use of Services terminates the licenses granted by Tidal pursuant to this Agreement. The foregoing sentence is not exclusive of any other rights or remedies that may be available to Tidal under law, equity, statute, or otherwise.
3. REGISTRATION.
3.1 Registering Your Account. In order to access certain features of the Services, you may be required to become a Registered User. For purposes of this Agreement, a “Registered User” is a user who has registered an account on the Site or Platform (“Account”).
(A) A “Free Community Account” is a user Account for an individual analyst to use the Services for his or her own personal use without cost. In creating a Free Community Account, we ask that you provide complete and accurate information about yourself, and maintain and promptly update such information to keep it true, accurate, current and complete. You may not impersonate someone else, create or use an Account for anyone other than yourself, provide an email address other than your own, or create multiple Accounts. A user who registers for a Free Community Account is a “Free Community User”.
(B). An “Enterprise Account” is a user Account for an individual working for a company, business or organization that has signed a separate Customer Agreement with Tidal (each, a “Customer”) seeking to use the Services for its internal business purposes. In creating an Enterprise Account, we ask that you provide complete and accurate information about yourself, and maintain and promptly update such information to keep it true, accurate, current and complete. You may not impersonate someone else, create or use an Account for anyone other than yourself, provide an email address other than your own, or create multiple Accounts associated with the Customer. A user who registers for an Enterprise Account is an “Enterprise User”.
3.2 Registration Data. You represent that you are (a) of legal age to form a binding contract; and (b) not a person barred from using the Services under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account; provided that Customers are responsible for those activities occurring under Enterprise Accounts. You may not share your Account or password with anyone, and you agree to (i) notify Tidal immediately of any unauthorized use of your password or any other breach of security; and (ii) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or Tidal has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, Tidal has the right to suspend or terminate your Account and refuse any and all current or future use of the Services (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree not to create an Account or use the Services if you have been previously removed by Tidal, or if you have been previously banned from any of the Services.
4. RESPONSIBILITY FOR DATA
4.1 Types of Data. You acknowledge that all information supplied through the Services (“Data”), is the sole responsibility of the party from whom such Data originated. This means that you, and not Tidal, are entirely responsible for all Data that you upload, post, transmit or otherwise make available (“Make Available”) any data, data, materials, text, and other information through the Services (“Your Data”), and that you and other users of the Services, and not Tidal, are similarly responsible for all Data they Make Available through the Services (“User Data”).
4.2 No Obligation to Pre-Screen Data. You acknowledge that Tidal has no obligation to pre-screen Data (including, but not limited to, User Data), although Tidal reserves the right in its sole discretion to pre-screen, refuse or remove any Data. By entering into the Agreement, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Data, including without limitation chat, text, or voice communications. In the event that Tidal pre-screens, refuses or removes any Data, you acknowledge that Tidal will do so for Tidal’s benefit, not yours. Without limiting the foregoing, Tidal shall have the right to remove any Data that violates this Agreement or is otherwise objectionable.
4.3 Storage. Unless expressly agreed to by Tidal in writing elsewhere, Tidal has no obligation to store any of Your Data that you Make Available through the Services. Tidal has no responsibility or liability for the deletion or accuracy of any Data, including Your Data; the failure to store, transmit or receive transmission of Data; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Services. Certain Services may enable you to specify the level at which such Services restrict access to Your Data. You are solely responsible for applying the appropriate level of access to Your Data. If you do not choose, the system may default to its most permissive setting. You agree that Tidal retains the right to create reasonable limits on Tidal’s use and storage of the Data, including Your Data, such as limits on file size, storage space, processing capacity, and similar limits described on the Website and as otherwise determined by Tidal in its sole discretion.
5. OWNERSHIP.
5.1 Services. Except with respect to Your Data and User Data, you agree that Tidal and its suppliers own all rights, title and interest in the Services, and all parts thereof. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services.
5.2 Trademarks. “Tidal,” Tidal’s stylized name and other related graphics, logos, service marks and trade names used on or in connection with the Services or in connection with the Services are the trademarks of Tidal and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in the Services are the property of their respective owners.
5.3 Other Data. Except with respect to Your Data, you agree that you have no right or title in or to any Data that appears on or in the Services. Tidal prohibits and does not recognize any purported transfers of virtual property effectuated outside of the Services, or the purported sale, lease, gift or trade in the “real world” of anything that appears or originates in the Services.
5.4 Your Data. Tidal does not claim ownership of Your Data. However, when you as a post or publish Your Data on or in the Services, you represent and warrant that: (i) Your Data is truthful, accurate, not misleading and offered in good faith; (ii) you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Data (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Data; (iii) the publication of Your Data on the Services will not require Tidal to obtain any further licenses from or pay any royalties, fees, compensation or other amounts or provide any attribution to any third parties; and (iv) the publication of Your Data on the Services does not result in a breach of contract between you and any third party. You agree that any use of the Services contrary to or in violation of your representations and warranties in this Section 5.4 constitutes unauthorized and improper use of the Services. You grant Tidal a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display Your Data (in whole or in part) for the purposes of: (i) operating and providing Services to you and to our other Users; (ii) creating aggregated and anonymized data to: (a) improve the Services and Tidal’s related products and services, including Tidal’s models and algorithms; (b) create analytics and benchmarks; and (c) generating and disclosing statistics regarding use of the Services, provided, however, that no individually identifiable statistics will be disclosed to third parties without your consent. Please remember that other users may search for, see, use, modify and reproduce any of Your Data that you submit to any “public” area of the Services. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Data, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not Tidal, are responsible for all of Your Data that you Make Available on or in the Services.
5.5 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Tidal through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that Tidal has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Tidal a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Services.
6. USER CONDUCT.
6.1 General. As a condition of use, you agree not to use the Services for any purpose that is prohibited by this Agreement or by applicable law. You shall not (and shall not permit any third party) to either (a) take any action or (b) Make Available any Data on or through the Services that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales without Tidal’s prior written consent, such as contests, sweepstakes, barter, advertising, or pyramid schemes; (v) impersonates any person or entity, including any employee or representative of Tidal; (vi) interferes with or attempt to interfere with the proper functioning of the Services or uses the Services in any way not expressly permitted by the Agreement; or (xiv) attempts to engage in or engages in, any potentially harmful acts that are directed against the Services, including but not limited to violating or attempting to violate any security features of the Services, using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages contained in the Services, introducing viruses, worms, or similar harmful code into the Services, or interfering or attempting to interfere with use of the Services by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” the Services.
6.2 Investigations. Tidal may, but is not obligated to, monitor or review the Services and Data at any time. Without limiting the foregoing, Tidal shall have the right, in its sole discretion, to remove any of Your Data for any reason (or no reason), including if such Data violates the Agreement or any applicable law. Although Tidal does not generally monitor User activity occurring in connection with the Services or Data, if Tidal becomes aware of any possible violations by you of any provision of the Agreement, Tidal reserves the right to investigate such violations, and Tidal may, at its sole discretion, immediately terminate your license to use the Services, or change, alter or remove Your Data, in whole or in part, without prior notice to you.
7. INTERACTIONS WITH OTHER USERS. Users are solely responsible for their interactions with each other, and any other parties with whom they interact; provided, however, that Tidal reserves the right, but has no obligation, to intercede in disputes. Users agree that Tidal will not be responsible for any liability incurred as the result of such interactions. YOU UNDERSTAND THAT TIDAL MAY, BUT IS NOT OBLIGATED TO CONDUCT CRIMINAL BACKGROUND CHECKS OR EVALUATE THE CREDENTIALS OF ANY USER. TIDAL MAY, BUT IS NOT OBLIGATED TO, INQUIRE INTO THE BACKGROUNDS OF ITS USERS OR ATTEMPT TO VERIFY THE STATEMENTS OF ITS USERS. TIDAL MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS. TIDAL RESERVES THE RIGHT TO CONDUCT ANY CRIMINAL BACKGROUND CHECK OR OTHER SCREENINGS AT ANY TIME AND USING AVAILABLE PUBLIC RECORDS.
8. FEES AND PURCHASE TERMS. Tidal does not currently charge a fee for the Services for its Free Community Edition Users. However, it reserves the right to charge such fees in the future.
9. THIRD-PARTY SERVICES.
9.1 Third-Party Services. You acknowledge and agree that certain features and functions of the Services are made available by third parties that control such features and functions, such as MITRE (“Third-Party Providers”), and that the access to and use of such features and functions (“Third-Party Services”), including the availability thereof and uptimes related thereto, is solely determined by the relevant Third-Party Providers. Tidal will have no liability to you for any unavailability of any Third-Party Services, or any Third-Party Provider’s decision to discontinue, suspend or terminate any Third-Party Services. All right, title and interest in and to any Third-Party Services are and shall remain the sole property of their respective Third-Party Providers. Authorized Users may be required to accept additional terms and conditions with respect to access to and use of any such Third-Party Services.
9.2 Third-Party Websites and Ads. The Services may contain links to third-party websites (“Third-Party Websites”) and advertisements for third parties (“Third-Party Ads”). When you click on a link to a Third-Party Website or Third-Party Ad, we will not warn you that you have left the Services and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites and Third-Party Ads are not under the control of Tidal. Tidal is not responsible for any Third-Party Websites or Third-Party Ads. Tidal provides these Third-Party Websites and Third Party Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites or Third-Party Ads, or any product or service provided in connection therewith. You use all links in Third-Party Websites and Third-Party Ads at your own risk. When you leave the Services, the Agreement and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites or Third-Party Apps, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
9.3 Release. You hereby release Tidal Parties (as defined below) from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of the Services, including but not limited to, any interactions with or conduct of other users or third-party websites of any kind arising in connection with or as a result of the Agreement or your use of the Services. Should you, as a User, have a dispute with respect to any Reservation provided by a Provider, or fees charged pursuant to the Services, you must address such dispute with the Provider directly (although you may copy Tidal on the fee disputes). You, as a User, hereby agree to release Tidal Parties (as defined below) from any losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage that is either directly or indirectly related to or arises from or in any way connected with such disputes and your dealings with Providers. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES, “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
10. INDEMNIFICATION. You agree to indemnify and hold Tidal, its parents, subsidiaries, affiliates, officers, directors, employees, contractors, and agents and its licensors and suppliers (“Tidal Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) Your Data; (b) your misuse of the Services; (c) your violation of this Agreement; (d) your violation of any rights of another party; or (e) your violation of any applicable laws, rules or regulations. Tidal reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Tidal in asserting any available defenses. You agree that the provisions in this Section will survive any termination of this Agreement or your access to Services.
11. DISCLAIMER OF WARRANTIES AND CONDITIONS.
11.1 As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF SERVICES IS AT YOUR SOLE RISK, AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. THE TIDAL PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
(A) TIDAL PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE SERVICES WILL MEET YOUR EXPECTATIONS OR REQUIREMENTS; (2) THE INFORMATION, DATA, AND DATA ON THE SERVICES ARE ACCURATE, COMPLETE, OR CURRENT; (3) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (4) ANY ERRORS IN THE SERVICES WILL BE CORRECTED; (5) YOUR USE OF THE SERVICES WILL NOT EXPOSE YOUR HARDWARE OR NETWORKS TO ADDITIONAL SECURITY RISK; OR (6) THE SERVICES WILL BE COMPATIBLE WITH YOUR DEVICES.
(B) ANY DATA DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE SERVICES IS AT YOUR OWN RISK AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PERSON OR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE SERVICES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH DATA.
(C) THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. TIDAL PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO THE SERVICES, INCLUDING BUT NOT LIMITED TO, THE TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF THE SERVICES.
(D) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM COMPANY OR THROUGH COMPANY PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
(E) FROM TIME TO TIME, TIDAL MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT TIDAL’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
11.2 No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT TIDAL PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD TIDAL LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF ECONOMIC DAMAGES FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU. TIDAL MAKES NO WARRANTY THAT THE GOODS OR SERVICES PROVIDED BY THIRD PARTIES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. TIDAL MAKES NO WARRANTY REGARDING THE QUALITY OF ANY SUCH GOODS OR SERVICES, OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY USER DATA OBTAINED THROUGH THE SERVICES.
11.3 No Liability for Conduct of Other Users. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SERVICES. YOU UNDERSTAND THAT TIDAL DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE SERVICES. TIDAL DOES NOT GUARANTEE OR WARRANT ANY VENDOR’S PERFORMANCE OR OUTCOME OR QUALITY OF THE VENDOR SERVICES PROVIDED, AND IS NOT LIABLE OR RESPONSIBLE FOR ANY VENDOR’S PROVISION OF THE VENDOR SERVICES.
12. LIMITATION OF LIABILITY.
12.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL TIDAL PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE TIDAL PROPERTIES OR ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT TIDAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THE TERMS, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE TIDAL PROPERTIES OR THIRD PARTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE THE TIDAL PROPERTIES; (2) ANY DEALS OFFERED THROUGH THE SERVICES; (3) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH THE TIDAL PROPERTIES; (4) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (5) STATEMENTS OR CONDUCT OF ANY THIRD-PARTY ON TIDAL PROPERTIES; OR (6) ANY OTHER MATTER RELATED TO THE TIDAL PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.
12.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL TIDAL PARTIES BE LIABLE TO YOU FOR MORE THAN THE AMOUNT RECEIVED BY TIDAL AS A RESULT OF YOUR USE OF THE TIDAL PROPERTIES IN THE SIX MONTHS PRECEDING THE DATE ON WHICH YOU FIRST ASSERT YOUR CLAIM. IF YOU HAVE NOT PAID TIDAL ANY AMOUNTS IN THE SIX MONTHS PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM, TIDAL’S SOLE AND EXCLUSIVE LIABILITY SHALL BE LIMITED TO ONE HUNDRED DOLLARS ($100).
12.3 Exclusion of Damages. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
12.4 USER DATA. THE TIDAL PARTIES ASSUME NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY, OR FAILURE TO STORE ANY DATA (INCLUDING BUT NOT LIMITED TO YOUR DATA AND USER DATA), USER COMMUNICATIONS, OR PERSONALIZATION SETTINGS.
12.5 BASIS OF THE BARGAIN. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN TIDAL AND YOU.
13. Procedure for Making Claims of Copyright Infringement. If you believe data posted on the Services infringes your copyright rights, please provide our Copyright Agent with the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed; (3) a description of the location on the Services of the material that you claim is infringing; (4) your address, telephone number and e-mail address; (5) a written statement that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (6) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Correspondence to our Copyright Agent regarding notice of claims of copyright infringement should be addressed to: Tidal Cyber, Inc., Attn: Copyright Agent, 7606 Partridge Berry Lane, Clifton, VA 20124.
14. TERMINATION. At its sole discretion, Tidal may modify or discontinue the Services, or may modify, suspend or terminate your access to the Services, for any reason, with or without notice to you and without liability to you or any third party. In addition to suspending or terminating your access to the Services, Tidal reserves the right to take appropriate legal action, including without limitation pursuing civil, criminal or injunctive redress. Even after your right to use the Services is terminated, this Agreement will remain enforceable against you and unpaid amounts you owe to Tidal for any purchases will remain due.
15. INTERNATIONAL USERS. Services can be accessed from countries around the world and may contain references to services and data that are not available in your country. These references do not imply that Tidal intends to announce or promote the availability of such services or data in your country. Services are controlled and offered by Tidal from its facilities in the United States of America. Tidal makes no representations that Services are appropriate or available for use in other locations. Those who access or use Services from other countries do so at their own volition and are responsible for compliance with local law.
16. DISPUTE RESOLUTION. Please read this section (“Arbitration Agreement”) carefully. It is part of your contract with Tidal and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
16.1 Applicability of Arbitration Agreement. Subject to the terms of this Arbitration Agreement, you and Tidal agree that any dispute, claim or request for relief relating in any way to your access to or use of the Services including claims and disputes that arose between you and us before the effective date of this Agreement (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that (1) you and Tidal may assert claims in small claims court if the claims qualify and remain in small claims court; and (2) you or Tidal may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of this Agreement as well as claims that may arise after the termination of this Agreement.
16.2 Informal Dispute Resolution. There might be instances when a Dispute arises between you and Tidal. If that occurs, Tidal is committed to working with you to reach a reasonable resolution. You and Tidal agree that good faith informal efforts to resolve Disputes can result in a prompt, low‐cost and mutually beneficial outcome (“Informal Dispute Resolution”). You and Tidal therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you will also participate in the conference.
The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), which shall occur within forty-five (45) days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties. Notice to Tidal that you intend to initiate an Informal Dispute Resolution Conference should be sent by email to legal@tidalcyber.com or regular mail to 7606 Partridge Berry Lane, Clifton, VA 20124. The Notice must include: (1) your name, telephone number, mailing address, e‐mail address associated with your Account (if you have one); (2) the name, telephone number, mailing address and e‐mail address of your counsel, if any; and (3) a description of your Dispute.
The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party’s Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.
16.3 Waiver of Jury Trial. YOU AND TIDAL HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Tidal are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 16.1 above. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.16.4 Waiver of Class or Other Non-Individualized Relief. YOU AND TIDAL AGREE THAT, EXCEPT AS SPECIFIED IN SECTION 16.9, EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party’s individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under Section 16.9. Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this section are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and Tidal agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in the State of Delaware. All other Disputes shall be arbitrated or litigated in small claims court. This section does not prevent you or Tidal from participating in a class-wide settlement of claims.
16.5 Rules and Forum. This Agreement evidences a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If the Informal Dispute Resolution process described above does not resolve satisfactorily within sixty (60) days after receipt of your Notice, you and Tidal agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be administered by the American Arbitration Association (“AAA”), in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this section of this Arbitration Agreement. The AAA Rules are currently available at https://www.adr.org/sites/default/files/Consumer%20Rules.pdf.
A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”). The Request must include: (1) the name, telephone number, mailing address, e‐mail address of the party seeking arbitration and the account username (if applicable) as well as the email address associated with any applicable Account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States dollars; (4) a statement certifying completion of the Informal Dispute Resolution process as described above; and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration.
If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (1) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.
Unless you and Tidal otherwise agree, or the Batch Arbitration process discussed in Section 16.9 is triggered, the arbitration will be conducted in the county where you reside. Subject to the AAA Rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration. If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any AAA fees and costs will be solely set forth in the applicable AAA Rules.
You and Tidal agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and shall be subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.
16.6 Arbitrator. The arbitrator will be either a retired judge or an attorney licensed to practice law in the State of Delaware and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Request, then the AAA will appoint the arbitrator in accordance with the AAA Rules, provided that if the Batch Arbitration process under Section 16.9 is triggered, the AAA will appoint the arbitrator for each batch.16.7 Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (1) all Disputes arising out of or relating to Section 16.4, including any claim that all or part of Section 16.4 is unenforceable, illegal, void or voidable, or that such Section 16.4 has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (2) except as expressly contemplated in Section 16.9, all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (3) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (4) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration proceeding will not be consolidated with any other matters or joined with any other proceedings or parties, except as expressly provided in Section 16.9. The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which any award (or decision not to render an award) is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.
16.8 Attorneys’ Fees and Costs. The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or Tidal need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys’ fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution process, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.
16.9 Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, you and Tidal agree that in the event that there are one-hundred (100) or more individual Requests of a substantially similar nature filed against Tidal by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), the AAA shall (1) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”).
All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise the AAA, and the AAA shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by Tidal.
You and Tidal agree to cooperate in good faith with the AAA to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings.
This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.
16.10 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending a timely written notice of your decision to opt out to the following address: Tidal Cyber, Inc., 7606 Partridge Berry Lane, Clifton, VA 20124 or e-mail legal@tidalcyber.com, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address associated with your Account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have with us, or may enter into in the future with us.16.11 Invalidity; Expiration. Except as provided in Section 16.4, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect. You further agree that any Dispute that you have with Tidal as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.
16.12 Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Tidal makes any future material change to this Arbitration Agreement, we will notify you. Unless you reject that change within thirty (30) days of such change becoming effective by writing Tidal at the following address: Tidal Cyber, Inc., 7606 Partridge Berry Lane, Clifton, VA 20124, your continued use of the Services following the posting of changes to this Arbitration Agreement constitutes your acceptance of any such change. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of this Agreement and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes arising out of or relating in any way to your access to or use of the Service, any communications you receive, any products sold or distributed through the Service or this Agreement, the provisions of this Arbitration Agreement as of the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement) remain in full force and effect. Tidal will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of this Agreement.
17. GENERAL PROVISIONS.
17.1 Electronic Communications. The communications between you and Tidal use electronic means, whether you visit Services or send Tidal e-mails, or whether Tidal posts notices on Services or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from Tidal in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications related to these Agreement that Tidal provides to you electronically satisfy any legal requirement that such communications would satisfy if they were made in writing in a physical document. The foregoing does not affect your statutory rights.
17.2 Assignment. This Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Tidal’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
17.3 Force Majeure. Tidal shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
17.4 Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Tidal agree that all claims and disputes arising out of or relating to this Agreement or the Services will be litigated exclusively in state or federal courts located in Fairfax County, Virginia.
17.5 Governing Law. THIS AGREEMENT AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF DELAWARE, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THIS AGREEMENT.
17.6 Notice. Where Tidal requires that you provide an e-mail address, you are responsible for providing Tidal with your most current e-mail address. In the event that the last e-mail address you provided to Tidal is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by this Agreement, Tidal’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Tidal at the following address: Tidal Cyber, Inc., 7606 Partridge Berry Lane, Clifton, VA 20124. Such notice shall be deemed given when received by Tidal by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
17.7 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Services, please contact us at: Tidal Cyber, Inc., 7606 Partridge Berry Lane, Clifton, VA 20124 or e-mail support@tidalcyber.com. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
17.8 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
17.9 Severability. Subject to Section 16.7, if any portion of these Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
17.10 Export Control. You may not use, export, import, or transfer Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained Services, and any other applicable laws. In particular, but without limitation, Services may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using Services, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
17.11 Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
17.12 Agreement Updates. When changes are made, Tidal will make a new copy of this Terms of Use and/or Supplemental Terms, as applicable, available on the Service, and we will also update the “Last Updated” date at the top of this Agreement. If we make any material changes and you have registered an Account with us, we will also send an email with an updated copy of this Agreement to you at the email address associated with your Account. Unless otherwise stated in such update, any changes to this Agreement will be effective immediately for users without an Account and thirty (30) days after posting for users with an Account. Tidal may require you to provide consent to the updated Agreement in a specified manner before further use of the Services is permitted. IF YOU DO NOT AGREE TO ANY CHANGE(S) AFTER RECEIVING A NOTICE OF SUCH CHANGE(S), YOU SHALL STOP USING THE SERVICES.
17.13 Entire Agreement. This Agreement are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.