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Terms of Use

Effective Date: 15-Aug-2020

Position2, Inc. ("Position2," "we," "us" or "our") owns or operates websites, including www.position2.com, www.thearena.ai and related domains, and offers a number of commercial internet services to you ("you" or "your") which may be accessed via the internet through a variety of devices or transmission types.

The following terms and conditions govern all access to and use of:

  1. the www.Position2.com website, www.thearena.ai dashboard and other Position2 associated websites that link to this policy (collectively, the "Sites"), and
  2. the services and products available from Position2, including those available at or through the Sites (collectively, the "Position2 Services").

The Sites and the Position2 Services are owned and operated by Position2. Your visitation to the Sites and your access to the Position2 Services is offered subject to your acceptance without modification of all of the terms and conditions contained herein, which may be revised and updated by Position2 from time to time, without notice to you, and all other operating rules, policies, and procedures that may be published from time to time by Position2 (collectively, the "Terms of Use").

CONSENT & ACKNOWLEDGEMENTS

By accessing the Sites and/or using any Position2 Services, you are consenting to the terms and conditions of these Terms of Use and our privacy practices, as described in our Privacy Policy located at http://thearena.ai/privacy-policy.html. By accessing the Sites and/or using any Position2 Services, you are representing that you are of legal age to form a binding contract and are not barred from receiving goods or services under the laws of any country or other applicable jurisdiction. You are also representing that all information provided to Position2 is true, accurate and complete, that you will ensure it remains true, accurate and complete at all times. Any breach of this section, or a reasonable belief by Position2 of such a breach, shall give Position2 the right to immediately terminate your account and refuse to provide any and all current or future Position2 Services. In addition, when using the Position2 Services, you agree to comply with all local, state, federal, and international laws, rules and regulations.

PLEASE READ THESE TERMS OF USE CAREFULLY BEFORE ACCESSING THE SITES OR OTHERWISE USING THE POSITION2 SERVICES. BY ACCESSING THE SITES OR USING ANY PART OF THE POSITION2 SERVICES, YOU (EITHER AN INDIVIDUAL OR A LEGAL ENTITY THAT YOU REPRESENT AS AN AUTHORIZED EMPLOYEE OR AGENT) AGREE THAT YOU ARE BOUND BY THE TERMS AND CONDITIONS OF THESE TERMS OF USE, INCLUDING THE BINDING ARBITRATION TERMS. IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS OF THESE TERMS OF USE, THEN YOU MAY NOT ACCESS THE SITES, THE POSITION2 SERVICES, OR ANY PART THEREOF.

ACCESS TO THE SITES AND USE OF THE POSITION2 SERVICES

General, public content available on the Sites may be accessed and viewed by anyone. However, the Position2 Services are available only to individuals who are at least 18 years of age. If you do not so qualify, do not attempt to register for an account or use the Position2 Services. Position2 may refuse to offer the Position2 Services to any person or entity at any time and may change its eligibility criteria, at any time, in its sole discretion.

ACCOUNT REGISTRATION

In order to use the Position2 Services, you must register to create an account (“Account”). During the registration process, you will be required to provide certain information to us and you will establish a username and a password. By providing such information, you represent and warrant that such information is accurate, current, and complete information and you agree to update such information to keep it accurate, current, and complete. Position2 reserves the right to suspend or terminate your Account if any information provided during the registration process or thereafter proves to be inaccurate, not current or incomplete. You are responsible for safeguarding your password. You agree not to disclose your password to any third party and to take sole responsibility for any activities or actions under your Account, whether or not you have authorized such activities or actions. You will immediately notify Position2 of any unauthorized access to or use of your Account. By signing up for the Position2 Services, you agree that Position2 may send you occasional emails relevant to your use of the Position2 Services.

FEES

Access to and use of the Position2 Services may require you to pay a monthly subscription fee for the duration of your subscription. You may terminate your subscription at any time by following the account cancellation procedures outlined in these Terms of Use. By purchasing a subscription to the Position2 Services, you are expressly agreeing that Position2 is permitted to bill you for the applicable fees, any applicable tax and any other charges you may incur in connection with your use of the Position2 Services and that such fees will be billed to the credit card you provide in accordance with the billing terms in effect at the time a fee or charge is due and payable. If payment is not received or cannot be charged to your credit card for any reason in advance of the applicable subscription period, Position2 reserves the right to either suspend or terminate your access to the Position2 Services and terminate these Terms of Use. Position2 uses a third-party payment processor to process all fees. Subscription fees are payable in U.S. Dollars and based on the Position2 Services purchased and not on actual usage. All fees are non-refundable. Subscription fees for the Position2 Services are billed in advance on a monthly basis. There will be no refunds or credits for partial months of service or refunds for months unused with an open Account. Your subscription will automatically renew for additional, successive subscription periods equal in duration to the initial subscription period that you initially purchased unless you terminate your subscription prior to the end of the then-current subscription period. You acknowledge and agree that Position2 will automatically charge your credit card on record with Position2 for the then-current subscription period upon the commencement of any renewal period. You will provide Position2 with valid and updated credit card information and you authorize Position2 to charge such credit card for all purchased subscriptions and renewals. For any upgrade or downgrade in Position2 Services offerings, the credit card that you provided will automatically be charged or credited the new prorated amount for the current month and the new rate will apply on your next billing cycle. Downgrading the Position2 Services may cause the loss of content, features, or capacity of your Account. Position2 does not accept any liability for such loss.

GIVING US ACCESS TO OTHER ACCOUNTS AND SERVICES

Some of the Position2 Services may require you to give us access to your systems (e.g., your CRM system) or require you to provide login information and password information for accounts or services that you may have with third party providers, including your marketing channels and marketing analytics providers. When you provide this information to us or give us such access, you consent to our use of such information as described in these Terms of Use, and agree that you have read all terms, conditions, contracts and written agreements governing such access, login information and passwords and that you have all the necessary contractual and legal rights to give us such access, login information and passwords.

RIGHTS TO USE; PROHIBITED ACTIVITIES

Subject to your compliance with these Terms of Use, we grant you a personal, non-transferable, non-exclusive, revocable, limited license to access the Sites and use the Position2 Services solely as permitted by these Terms of Use. We reserve all rights not expressly granted to you herein.

By accessing the Sites and/or using the Position2 Services, you agree not to:

  1. Make available any content that is unlawful, harmful, tortious, defamatory, vulgar, obscene, invasive of another’s privacy, hateful, racially or ethnically discriminatory, or otherwise objectionable.
  2. Make available any content for which you do not have sufficient legal rights.
  3. Use the Sites or Position2 Services to violate our rights, the rights of any third-party or any applicable local, state, federal or international law, including any rules or regulations having the force of law.
  4. Violate any contractual or fiduciary obligation.
  5. Use the Sites or Position2 Services in any manner that is designed to interfere, interrupt, change, adversely affect or limit the functionality of the Sites, the Position2 Services or any other computer software, hardware or telecommunications equipment.
  6. Use the Sites or Position2 Services to collect or store personal data of third parties without their knowledge and informed consent.
  7. License, sell, transfer, assign, distribute, host or otherwise commercially exploit the Site or Position2 Services.
  8. Modify, prepare derivative works of, disassemble, decompile or reverse engineer any part of the Sites or Position2 Services.
  9. Access the Sites or Position2 Services in order to build a similar or competitive website, product, application or service without our express prior written consent.
  10. Attempt to gain unauthorized access to another user’s account or another user’s activities on the Sites or Position2 Services without permission.
  11. Upload, transmit or otherwise distribute to or through the Site or Position2 Services any computer viruses, worms or other software intended to harm or interfere with the intended operation of any computer system or data.
  12. Use any scrapers, crawlers, bots or other automated program to access, query or search the Sites or Position2 Services.
  13. Attempt to circumvent any access restrictions, content-related limitations or security procedures that we use.

All use of the Sites and Position2 Services must be lawful, and you agree to notify us if you learn of any misuse.

POSITION2 COMMUNICATIONS

You acknowledge and agree that we may send you periodic communications in connection with your use of the Sites and/or Position2 Services, such as marketing announcements, administrative messages, technical bulletins, notices about applicable fees and charges, transactional information, product announcements, other information concerning or related to the Sites and the Position2 Services and you will not be able to opt-out of receiving them, other than by requesting that Position2 delete your Account. These electronic communications are part of your relationship with Position2 and you consent to receive them as part of your use of the Sites and/or your subscription to the Position2 Services. You agree that any notices, agreements, disclosures, or other communications that we send you electronically will satisfy any legal communication requirements, including that such communications be in writing.

NOTICES

Any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms of Use, will be in writing and given: (i) by Position2 via email (in each case to the address that you provide) or (ii) by posting to the Sites or otherwise through the Position2 Services. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.

MODIFICATION OF THE SITES AND THE POSITION2 SERVICES

Position2 reserves the right, at its sole discretion, at any time to modify, suspend or discontinue, temporarily or permanently, the Sites and/or the Position2 Services (or any part thereof) with or without notice to you. Position2 will not be liable if, for any reason, all or any part of the Sites or the Position2 Services are unavailable for any period. From time to time, we may restrict access to or use of some or all of the Sites or the Position2 Services to visitors or users generally or to you individually, for any or no reason. By continuing to access or use the Sites or the Position2 Services after we have posted notice of any modification on the Sites or have otherwise provided you with notice of such modification, you are indicating that you agree to such modifications and to be bound by the modified Terms of Use. If the modifications are not acceptable to you, your only recourse is to cease accessing the Sites and/or using the Position2 Service.

ACCOUNT CANCELLATION; TERMINATION

If you breach these Terms of Use, Position2 will have the right to block your access to the Sites or Position2 Services, suspend or disable your Account or terminate these Terms of Use, at its sole discretion, without prior notice to you. You may terminate these Terms of Use at any time and for any reason by writing to delete@position2.com to delete your Account and discontinuing all use of the Site and the Position2 Services. If you stop using the Position2 Services without deleting your Account, we reserve the right to deactivate your Account due to prolonged inactivity. We also reserve the right to remove any content from deleted or deactivated accounts and to retain any such removed content for archival purposes. Upon any termination of these Terms of Use or cancellation of your Account, you must promptly destroy all originals and copies of any materials related to or referencing the Sites and/or the Position2 Services in your possession or control and so certify in writing to Position2 and cease any further access to the Sites or use of the Position2 Services. Notwithstanding the termination of these Terms of Use or the cancellation of your Account, the terms and conditions governing your indemnification, your prohibited uses, the disclaimers of warranties, the limitation of our liability, and any other provision which by its nature is intended to survive such termination, will survive such termination.

POSITION2 PRIVACY POLICY

All information collected or otherwise obtained by Position2 in connection with the Sites and Position2 Services is subject to the Position2 Privacy Policy, located at http://thearena.ai/privacy-policy.html. You acknowledge and agree that by accessing the Sites and/or using the Position2 Services, you consent to our privacy practices as described in the Position2 Privacy Policy, which is incorporated into these Terms of Use by reference.

OWNERSHIP

You will retain ownership of your rights in all information that you provide to us in connection with the Position2 Services we provide to you. However, you hereby grant Position2 and its affiliates, partners, service providers and each of our and their respective successors and assigns, a worldwide, sublicensable, royalty-free, transferable and non-exclusive license to use such information, including your PII and access to your accounts with third party service providers, as described in these Terms of Use. You hereby represent and warrant that you have all of the rights necessary to grant such licenses and that such information does not (and will not) violate the rights of any third party or any law. The Sites, the Position2 Services and all related content are protected by copyright, trademark, and other intellectual property laws of the United States and foreign countries. As between you and us, Position2 owns and will own all right, title and interest in and to the Sites, the Position2 Services and all related content, including all associated intellectual property rights available in any applicable jurisdiction. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Sites or the Position2 Services.

THIRD-PARTY SITES

You acknowledge that the Sites and the Position2 Services may contain, permit you or require to link to other websites or resources on the Internet offered by third parties, and that other websites or resources may contain links to the Sites and/or the Position2 Services. These third-party websites or resources are not under Position2’s control, and you acknowledge that Position2 is not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such websites or resources. The inclusion of any such links does not imply endorsement by Position2 or any association with its operators. You further acknowledge and agree that Position2 shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any content, products, goods or services available on or through any such website or resource. If you decide to access or use any such content, products, goods or services, you do so entirely at your own risk and subject to the terms and conditions in connection with such use.

INDEMNITY

You agree to defend, indemnify and hold Position2, its officers, directors, employees agents, subsidiaries, affiliates, partners and licensors (collectively, the “Position2 Entities”) harmless from and against any and all claims, liabilities, damages, losses, demands, expenses or fees, including reasonable attorneys’ fees, arising out of or relating to; (i) your violation of these Terms of Use; or (ii) your violation of any of our rights or the rights of another; or (iii) your use of or access to the Sites or the Position2 Services; or (iv) your violation of any applicable laws, rules or regulations in connection with your access to or use of the Sites or Position2 Services. We hereby reserve the right to control the defense of any such claims or proceedings for which you are required to indemnify us, and you agree to cooperate with such defense.

DISCLAIMER OF WARRANTIES

YOU EXPRESSLY UNDERSTAND AND AGREE THAT:       
YOUR ACCESS TO AND USE OF THE SITES AND THE POSITION2 SERVICES IS AT YOUR SOLE RISK. THE SITES AND POSITION2 SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. POSITION2 EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NEITHER POSITION2 NOR ANY PERSON ASSOCIATED WITH POSITION2 MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE SITES, THE POSITION2 SERVICES, OR ANY CONTENT OR MATERIALS MADE AVAILABLE IN CONNECTION THEREWITH.      
WITHOUT LIMITING THE FOREGOING, POSITION2 MAKES NO WARRANTY OR REPRESENTATION THAT (i) THE SITES OR THE POSITION2 SERVICES WILL MEET YOUR REQUIREMENTS; (ii) ACCESS TO THE SITES OR THE POSITION2 SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS; OR (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITES OR THE POSITION2 SERVICES WILL BE USEFUL, ACCURATE OR RELIABLE. POSITION2 WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR ACCESS TO OR USE OF THE SITES OR THE POSITION2 SERVICES, OR ITEMS OBTAINED THROUGH THE SITES OR THE POSITION2 SERVICES, INCLUDING WITHOUT LIMITATION ANY MATERIAL DOWNLOADED FROM IT, AVAILABLE THROUGH IT OR LINKED TO IT.      
POSITION2 DOES NOT CONTROL, ENDORSE OR TAKE RESPONSIBILITY FOR ANY CONTENT, PRODUCTS, SERVICES OR OTHER MATERIALS AVAILABLE ON OR LINKED THROUGH THE SITES, THE POSITION2 SERVICES, OR THE ACTIONS OF ANY THIRD PARTY OR USER.      
NO ADVICE OR OTHER COMMUNICATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM POSITION2 OR THROUGH OR FROM THE SITES OR THE POSITION2 SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS OF USE.

LIMITATION OF LIABILITY

TO THE FULLEST EXTENT PERMITTED BY LAW, YOU EXPRESSLY UNDERSTAND AND AGREE THAT NEITHER POSITION2 NOR ANY OF THE OTHER POSITION2 ENTITIES WILL BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM OR RELATING TO: (i) YOUR USE OF OR THE INABILITY TO ACCESS OR USE THE SITES OR THE POSITION2 SERVICES; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES; OR (iii) ANY OTHER MATTER RELATING TO THE SITES OR THE POSITION2 SERVICES, INCLUDING WITHOUT LIMITATION IN CONNECTION WITH THESE TERMS OF USE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF THE POSITION2 ENTITIES EXCEED ONE THOUSAND UNITED STATES DOLLARS ($1,000). THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN POSITION2 AND YOU. THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

PROPRIETARY RIGHTS AND NOTICES

All trademarks, service marks, logos, trade names and any other proprietary designations of Position2 used in connection with the Sites and the Position2 Services are trademarks or registered trademarks of Position2. Any other trademarks, service marks, logos, trade names and any other proprietary designations of any third party are the trademarks or registered trademarks of the respective third parties. You will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant or related to the Sites, the Position2 Services or any software, documentation, information or data related thereto; modify, translate, or create derivative works based on the Sites or the Position2 Services without our prior written permission; use the Sites or the Position2 Services for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels.

FEEDBACK

You may, from time to time, submit or recommend to us additional features, functionality, performance, comments, data, ideas, descriptions or other information (collectively, “Feedback”) that we may subsequently incorporate into the Sites, the Position2 Services or other Position2 products or services. Position2 and its successors and assigns may freely use, copy, disclose, sublicense, distribute, display and exploit any Feedback in connection with any of our products or services in any manner without any obligation, payment, royalty or restriction based on intellectual property rights, confidentiality or otherwise. You hereby: (i) grant Position2 and its successors and assigns a worldwide, non-exclusive, royalty-free, perpetual right and license to use and incorporate such Feedback into any Position2 product or service, including without limitation the Sites and the Position2 Services; and (ii) acknowledge that any Position2 product or service incorporating such new features, functionality, or performance will be the sole and exclusive property of Position2 and all such Feedback will be free from any confidentiality restrictions that might otherwise be imposed on us.

GOVERNING LAW

These Terms of Use and the relationship between you and Position2 shall be governed by the laws of the State of California without regards to its conflict of law provisions. You and Position2 agree that any and all disputes, controversies and claims arising out of or relating to these Terms of Use and/or your access to or use of the Sites or Position2 Services, shall be settled and determined exclusively by binding arbitration administered under the Rules of Arbitration by the American Arbitration Association in Santa Clara County, California, which is a mutually convenient and agreed upon venue. Any such dispute, claim or controversy shall be arbitrated on an individual basis and shall not be consolidated in any arbitration with any dispute or claim of any other party. By visiting the Sites or using the Position2 Services, you hereby waive all rights to trial in any action or proceeding instituted in connection with these Terms of Use, the Sites or the Position2 Services.

ENTIRE AGREEMENT

Except as expressly superseded by a written agreement between Position2 and you, these Terms of Use constitute the entire and exclusive understanding and agreement between Position2 and you regarding the Sites and the Position2 Services, and these Terms of Use supersede and replace any and all prior or contemporaneous oral or written understandings or agreements between Position2 and you regarding the Sites or the Position2 Services.

ASSIGNMENT

You may not assign or transfer these Terms of Use, in whole or in part, by operation of law or otherwise, without Position2’s prior written consent. Any attempt by you to assign or transfer without such consent will be null and of no effect. Position2 may assign or transfer these Terms of Use, in whole or in part, at its sole discretion, without restriction. Subject to the foregoing, these Terms of Use will bind and inure to the benefit of the parties, their successors and permitted assigns.

GENERAL INFORMATION

The failure of Position2 to exercise or enforce any right or provision of these Terms of Use is not a waiver of such right or provision. The waiver of any right or provision of these Terms of Use will be effective only if in writing and signed by a duly authorized representative of Position2. If any provision of these Terms of Use is found by a court of competent jurisdiction to be invalid, the remainder of these Terms of Use shall remain in full force and effect. You agree that, regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to these Terms of Use, including your access to or use of the Sites or the Position2 Services, must be filed within one (1) year after such claim or cause of action arose or be forever barred. All feedback, comments, requests for technical support and other communications relating to the Sites or the Position2 Services should be directed to: info@position2.com.

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