Terms of Service

Last updated: January 1, 2024

Introduction

Welcome to ListenLayer, a service provided by RealProof, Inc., a Delaware corporation, doing business as ListenLayer (“we,” “our,” or “us”). Our Software and Services are accessible through listenlayer.com and its subdomains. ListenLayer is designed to empower our customers by automating the collection of Your Business Data from your Website(s), facilitating the import and merging of Your Business Data, and distributing data to specified external services.

By creating a User Account, accessing one or more instances of our Software, connecting our Software to your systems or external accounts, engaging us through a Contract Plan or Services Agreement, or by placing or authorizing the placement of our technology on your Website, you agree to be bound by these Terms of Service (“Terms”). You acknowledge that you accept these Terms and agree to comply with them. Please read these Terms carefully and ensure you understand them fully before using our Services. If you do not agree with these Terms, you must refrain from using our Services.

These Terms govern your use of ListenLayer and represent a legal agreement between you and RealProof, Inc., (the “Agreement”). If you are utilizing our Software on behalf of a business, you hereby declare that you are an authorized representative and agent of that business and are creating a binding agreement (the “Agreement”) between RealProof, Inc. and said business. Included in, and made part of this Agreement as applicable are the following additional documents: Data Processing Addendum, Billing Agreement, Privacy Policy.

Definitions

User Account: Refers to the individual login credentials and account created by a person, which grants access to one or more Business Accounts on the ListenLayer Software.

Business Account: Refers to a single instance of the cloud software provided by us, utilized to track Website(s), collect and merge data, distribute data, and analyze data.

Website: Refers to one or more websites, each located at distinct web addresses, where the ListenLayer tracking script is deployed to collect and manage data.

Software: Refers to the collective functionality offered through the ListenLayer platform, either via its interface or on the Website. This includes, but is not limited to, collecting data from the Website, placing the script on the Website, sending data to external services, importing data from external services, and all other features provided by ListenLayer.

Content: Refers to all text, images, data, information, and other materials provided, generated, or made accessible on or through the ListenLayer Software.

Documentation: Refers to all content, guides, and instructions provided by ListenLayer to aid in the understanding and use of the software.

Your Personal Data: Refers to personally identifiable information (PII) and other data that you provide to us, about yourself, or that we collect from your use of the Software.

Your Business Data: Refers to data that is collected automatically from your Website or imported into the Business Account. This data tends to include, but is not limited to, information about your website visitors, prospects, leads, customers, sales, revenue, competitors, and target accounts (potential customers).

Support Services: Refers to general support and advice provided by our support team, employees, contractors, and partners to assist you in utilizing the ListenLayer Software.

Managed Services: Refers to changes made by our team within your account, whether under an official managed services contract or not, to facilitate your use of the ListenLayer Software.

Services: Refers to the access and use of ListenLayer Software, Website, Managed Services, Support Services or any other implementation or consulting we might provide.

Services Agreement: Refers to an agreement made with us to rely on our team to manage your instance of the Software and/or to provide other services, advice, or consulting defined in such agreement.

Contract Plan: Refers to an agreement made with us for the access and use of our Software within terms and pricing that have been customized specifically for you (i.e. not utilizing a Publicly Published Pricing Plan).

Publicly Published Pricing Plan: Refers to a pricing plan for access to our Software and/or Support services that is publicly available on and can be selected directly from our website (listenlayer.com).

Fees: Refers to all amounts owed to us by you in accordance with the pricing terms applicable to your Business Account, whether under a Publicly Published Pricing Plan or a Contract Plan, as well as any amounts owed in relation to a Services Agreement.

External Systems: Software and technology platforms that are outside of, or external to our Software. External Systems may include, but are not limited to, advertising platforms, analytics tools, customer relationship management tools, marketing automation tools, and tag management tools.

Access, Licensing, Restrictions, Suspensions

Access: Access to our Software is granted to you contingent upon compliance with the Agreement and timely payment of all applicable Fees. Your access to the Software will remain in effect only for as long as you adhere to the Agreement and fulfill all payment obligations.

Licensing: Subject to your compliance with the Agreement and your payment of any applicable Fees, we grant you a limited, non-exclusive, non-transferable, and non-sublicensable license to access and use our Software for your internal business purposes. This license is solely for use by the individual or entity that has been authorized by us to access the Software and cannot be shared with, transferred to, or used by others businesses or entities, although you may provide access to your Business Account to people that work for or represent your business or entity through a separate User Account.

General Restrictions: You are not permitted to use the Software for any purposes beyond the scope of access granted in these Terms.

Copying and Modification: You may not copy, modify, or create derivative works of the Software, Content, or Documentation, in whole or in part.

Transfer and Sub-licensing: You shall not rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software or Documentation.

Reverse Engineering: You may not reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any proprietary component or source code of the Software or Services, in whole or in part.

Proprietary Notices: You are prohibited from removing any proprietary notices from the Software, Content, or Documentation.

Violation of Laws and Rights: You may not use the Software, Content, or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.

Reservation of Rights: We reserve all rights not expressly granted to you in these Terms. Except for the limited rights and licenses expressly granted under these Terms, nothing in these Terms grants, by implication, waiver, estoppel, or otherwise, to you or any third party any intellectual property rights or other right, title, or interest in or to the ListenLayer intellectual property.

Access to Features: The availability of features within our Software to your Business Account is contingent upon the specifications outlined in your selected Publicly Published Pricing Plan or your personalized Contract Plan.

Feature Allocation: The range of features accessible to you is determined by the current offerings within the Publicly Published Pricing Plan or the stipulations defined in your Contract Plan.

We may, from time to time, introduce new features or functionalities to our Software and Services. Access to these new features may necessitate an upgrade to your existing plan. You are not automatically entitled to access or use new features unless such access is included in your existing plan or you choose to upgrade to a plan that includes such new features.

Feature Modification and Discontinuation: We reserve the right to modify, suspend, or discontinue any feature(s) of our Software or Service at any time, for any reason, including but not limited to considerations regarding feature availability, stability, third-party dependencies, or compliance with applicable laws.

Such modifications may include the removal of features previously accessible within your Publicly Published Pricing Plan or the stipulations defined in your Contract Plan, or the suspension of certain functionalities due to technical or legal constraints.

In the event of a significant modification, suspension, or discontinuation of a feature, we will endeavor to provide you with reasonable notice when feasible, allowing you to make necessary adjustments to your operations.

Your continued use of the Software following any feature modification constitutes your acceptance of the changes and the terms governing the modified features.

Temporary Suspension: Notwithstanding any other provision in the Agreement, we may temporarily suspend your access to any portion or all of the Software if:

  1. We reasonably determine that:
    • There’s a threat or attack on, or misuse of, any of the ListenLayer intellectual property;
    • Your use disrupts or poses a security risk to the ListenLayer intellectual property or to any other user or vendor of ListenLayer;
    • You are using the ListenLayer intellectual property for fraudulent or illegal activities;
    • Subject to applicable law, you have ceased to continue your business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding;
    • Our provision of the Software to you is prohibited by applicable law;
  2. Any vendor of ListenLayer has suspended or terminated ListenLayer’s access to or use of any third-party services or products required to enable you to access the Software;
  3. In accordance with any applicable billing and fees terms within your Contract Plan or Publicly Published Pricing Plan

We shall use commercially reasonable efforts to provide written notice of any Service Suspension to you and to provide updates regarding resumption of access to the Software following any Service Suspension. We shall use commercially reasonable efforts to resume access to the Software as soon as reasonably possible after the event giving rise to the Service Suspension is resolved. We will have no liability for any damage, liabilities, losses (including any loss of data, revenue, or profits), or any other consequences that you may incur as a result of a Service Suspension, whether temporary or permanent.

Permanent Suspension: We reserve the right to permanently suspend or terminate your access to the Software, or features of the Software if the causes of a temporary suspension are not resolved, or if you repeatedly violate the Agreement or engage in illegal activities.

Platform Costs: The utilization of our software and services may incur certain Fees based on the Publicly Published Pricing Plan, Contract Plan, and/or Services Agreement that applies to your Business Account. Details surrounding your agreement to these Fees can be found within those relevant agreements as well as our Billing Agreement.  By agreeing to these Terms of Service, you also acknowledge and agree to adhere to the terms laid out in the Billing Agreement, and acknowledge that it forms part of the legal Agreement between you and RealProof, Inc.

Data Collection & Use

Your Business Data: You may use our Software to collect, store, and manage Your Business Data, which may include personally identifiable information (PII) and other sensitive business data, at your own discretion. By using our Software for such purposes, you represent and warrant that you have obtained all necessary rights and consents, and comply with all applicable laws and regulations concerning the collection, processing, and storage of Your Business Data.

Prohibition of Collecting Health Information: You are prohibited from collecting, processing, or storing any Personal Health Information (PHI) on the Software without entering into a separate Business Associate Agreement (BAA) with us for compliance with the Health Insurance Portability and Accountability Act (HIPAA) if operating within the United States of America. If operating outside of the United States of America, you agree to adhere to your region’s health data protection laws and requirements. Should you wish to use our Software for purposes involving PHI, you must contact us to enter into a BAA or a similar agreement compliant with your region’s laws before any such use. Any unauthorized collection, processing, or storage of PHI is strictly prohibited and constitutes a material violation of the Agreement.

Automatic Collection of Sensitive Data: You acknowledge that our Software may automatically collect sensitive data, including personally identifiable information (PII) and Personal Health Information (PHI), through Your Business Data. It is solely your responsibility to monitor the data being collected and to be aware of the nature of the data that is being processed and stored through our Software. You are responsible for ensuring that the collection of such sensitive data complies with all applicable laws and regulations, and for obtaining any necessary consents or authorizations required for the collection, processing, and storage of such data.

Data Privacy, Collection, Transfer, and Storage: Our Software provides features designed to help you configure the Software in an attempt to comply with various internet tracking, cookie, personal information (PI) collection, data collection, and data transfer laws across different regions. These features and any prebuilt rules provided are offered for your convenience and are not a substitute for your own due diligence and understanding of the laws applicable to your use of our Software.

While we strive to provide helpful tools, it is solely your responsibility to ensure that your use of our Software and Service complies with all laws applicable to your operations. You should not rely solely on the features provided by our Software or advice from us to ensure compliance. We strongly recommend that you seek legal advice to understand the data protection and privacy obligations applicable to your use of our Software.

Indemnification for Sensitive Data: You hereby agree to indemnify, defend, and hold harmless RealProof, Inc., its affiliates, officers, directors, employees, agents, licensors, and suppliers from and against all claims, liabilities, losses, expenses, damages, and costs, including but not limited to attorney’s fees, arising from or in connection with: (i) your collection, processing, storage, distribution, and transfer of Your Business Data, personally identifiable information (PII), and Personal Health Information (PHI); (ii) your use of the Software for data handling purposes, whether compliant or non-compliant with applicable laws and regulations; (iii) any unauthorized or prohibited collection or distribution of PHI or other sensitive data; (iv) your reliance on any features, prebuilt configurations, or advice provided by us concerning data privacy and compliance; (v) any failure on your part to obtain necessary rights, consents, or to adhere to applicable laws, regulations, and agreements concerning data handling and privacy.

It is your responsibility to ensure that your use of our Software and Services for data handling purposes is in compliance with all applicable laws, regulations, and agreements. We disclaim any liability or responsibility for any unauthorized or non-compliant use of the Software and Services for data handling purposes, and any consequences arising thereof shall be solely borne by you. This indemnification obligation will survive the termination or expiration of your account and the Agreement.

Privacy Policy: In connection with your use of our Software or other services, it’s understood that we may gain access to Your Personal Data and Your Business Data. The handling, processing, and utilization of this information are governed by our Privacy Policy and our Data Processing Addendum. By using our Software, you agree to the terms of our Privacy Policy and Data Processing Addendum and acknowledge that they form part of the legal Agreement between you and RealProof, Inc.

If you use the Software to process personal data, including but not limited to Your Personal Data and Your Business Data, you must provide legally adequate privacy notices and obtain necessary consents for the storage of identifiers and processing of such data and you represent to us that you are processing such data in accordance with applicable laws.

Data Export and Retention: Upon termination of your contract with us, or at your discretion when seeking to use Your Business Data outside of our Software, we are not obligated to provide you with a copy or export of Your Business Data stored on our Software unless required by applicable law and in accordance with the Data Processing Addendum. While we may provide tools within the Software to export Your Business Data, the availability and functionality of such tools are not guaranteed, and it remains your responsibility to maintain copies of any data input into our Software. Your access to Your Business Data on our Software may cease upon termination of your Business Account, and we reserve the right to delete or remove Your Business Data from our systems as per the terms outlined in the Data Processing Addendum, which may change from time to time. It is advisable that you regularly export and save copies of Your Business Data throughout the term of your use of the Software to ensure continued access to your information.

Intellectual Property, Data, References, Confidentiality

Ownership of ListenLayer Intellectual Property: You acknowledge that, between you and us, we own all right, title, and interest, including all intellectual property rights, in and to the ListenLayer intellectual property.

Your Business Data: We acknowledge that, between us and you, you own all right, title, and interest, including all intellectual property rights, in and to Your Business Data. Subject to the Data Processing Addendum, you hereby grant to us a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display Your Business Data and perform all acts with respect to Your Business Data as may be necessary for us to provide the Services to you, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Your Business Data incorporated within any data or statistical analyses we may conduct to provide the Services to you.

Feedback: If you or any of your employees or contractors send or transmit any communications or materials to us by mail, email, telephone, or otherwise, suggesting or recommending changes to our intellectual property, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), we are free to use such Feedback irrespective of any other obligation or limitation between you and us governing such Feedback. You hereby assign to us on your behalf, and on behalf of your employees, contractors and/or agents, all right, title, and interest in, and we are free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although we are not required to use any Feedback.

Publicity and References: By utilizing our software, you and your business/entity hereby grant RealProof, Inc. the permission to include your name and your business/entity’s name in our list of customers and potential references. You also agree that RealProof, Inc. may publicly refer to you and your business/entity as a user of our services in promotional and marketing materials, press releases, presentations, and similar public disclosures. Your acceptance of these Terms of Service constitutes your consent for such use and disclosure of your name and your business/entity’s name.

Confidential Information: During the course of your utilization of our Software and Services, either party may disclose or make available to the other proprietary product details, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary materials, in written, electronic form, or other media, irrespective of whether they are marked, designated, or otherwise identified as “confidential” (collectively referred to as “Confidential Information”). Confidential Information excludes information that, at the time of disclosure: (a) is publicly available; (b) is already in the possession of the receiving party at the time of disclosure; (c) is rightfully obtained by the receiving party on a non-confidential basis from a third party; or (d) is independently developed by the receiving party without reference to or reliance upon the Confidential Information.

The receiving party shall restrict the disclosure of the disclosing party’s Confidential Information solely to its employees and contractors who require the knowledge of the Confidential Information to fulfill the receiving party’s obligations under these Terms. However, either party may disclose Confidential Information to the extent required: (i) by a court order or by a governmental authority, provided that the disclosing party provides prior written notice to the other party, and makes a reasonable effort to obtain a protective order; or (ii) to establish a party’s rights under these Terms, including making necessary court filings.

Upon the termination or expiration of the Agreement, the receiving party shall promptly destroy all copies of the disclosing party’s Confidential Information, in any form or media, and certify in writing to the disclosing party that such Confidential Information has been destroyed.

Managed Services and Support Services Responsibility Disclaimer

You retain the ultimate responsibility for the administration and management of your Business Account, including but not limited to, the configuration, operation, security, and maintenance of your Business Account and any associated data, despite the reliance on or use of Support Services or Managed Services provided by our team.

The advice, recommendations, or actions provided or undertaken by our Support Services team or through Managed Services are aimed at facilitating your use of the ListenLayer Software. While we endeavor to provide accurate and helpful support, the decision to implement any advice, recommendations, or actions provided by our Support Services or Managed Services, and the outcomes thereof, are solely your responsibility.

RealProof, Inc. shall not be held liable for any loss, damage, or undesired outcomes resulting from your use of the Support Services or Managed Services, your implementation of any advice or recommendations provided, or any changes made within your account either by you or our team.

You acknowledge and agree that the Support Services and Managed Services are provided “AS IS” and that RealProof, Inc. DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, TO THE MAXIMUM EXTENT PERMITTED BY LAW, REGARDING ACCURACY, RELIABILITY, FITNESS FOR A SPECIFIC PURPOSE, OR COMPLETENESS OF ADVICE, RECOMMENDATIONS, OR ACTIONS PROVIDED OR UNDERTAKEN.

By utilizing the Support Services and Managed Services, you agree to exercise your own judgment and discretion and to independently verify any information upon which you choose to rely. You also agree to bear all risks associated with the implementation of any advice, recommendations, or actions provided or undertaken by the Support Services or Managed Services, including any reliance on the accuracy, completeness, or usefulness of such advice, recommendations, or actions.

Changes in Other Systems

Your utilization of our Software may involve interactions or changes within External Systems that you have granted access to, either through direct connections, via our Support Services or Managed Services, or through other authorized channels. The changes in these systems may be affected either automatically by our Software or manually by our team.

You acknowledge and agree that:

  1. Authorization: By providing us access, you authorize any interactions and changes necessary for the stated purposes or as requested by you.
  2. Liability: We carry no liability for any changes made in these External Systems, whether they are affected automatically by our Software or manually by our team. The responsibility for any consequences arising from such changes, including any impact on data, settings, or the operational aspects of the External Systems, remains solely with you.
  3. Monitoring and Management: Despite any access granted to us, the duty for monitoring, managing, and maintaining the integrity and performance of these External Systems, and for ensuring compliance with any terms of use or policies governing such systems, resides with you.
  4. Reversal or Correction: Should any undesirable changes occur in these External Systems, it is your responsibility to notify us promptly and to take any necessary corrective actions, either independently or with our assistance.
  5. Revocation of Access: You have the right to revoke our access to these External Systems at any time, and it’s your responsibility to manage and monitor the access permissions, credentials, and overall security concerning these External Systems. You understand that revoking such access may disrupt our Services.

This section delineates the boundaries of our responsibility and your responsibility concerning the interactions with and changes made in External Systems, ensuring a clear understanding of the roles and liabilities therein.

Security

Security Measures: We strive to maintain commercially reasonable technical and operational measures to protect our internal networks from malicious activity and to uphold the security and integrity of our system. While we may provide certain claims regarding security measures on our website or through other communications, you acknowledge that such claims, whether express or implied, may not be reliable or applicable to your use of the Services. It remains your responsibility to assess the adequacy of our security measures in light of your particular requirements and to implement additional measures as necessary to safeguard your use of the Services. You are responsible for ensuring that your use of the Services conforms to applicable regulatory standards and complies with your own security requirements.

Security Incidents: You acknowledge that we shall not be responsible or liable for any loss, damage, or other consequence arising from any security incident, including the loss, breach, or exposure of Your Business Data, regardless of whether such incident was foreseeable. However, in the event that we determine there has been unauthorized access to our network that impacts your Services, we will endeavor to notify you as soon as reasonably practicable following our investigation of the incident and fulfillment of our legal obligations. Similarly, you agree to notify us promptly should you identify or cause any unauthorized access to the Services.

Dispute Resolution & Liabilities

Arbitration Agreement: You and RealProof, Inc. agree that any disputes arising from these Terms, the Software, or the Services shall be resolved THROUGH FINAL AND BINDING ARBITRATION, RATHER THAN IN COURT. Exceptions to this agreement are cases that qualify for small claims court, and cases involving intellectual property infringement or abuse of the Software by you. Additionally, you have the right to opt out of these arbitration terms, and any future amendments to them, by filling out this specific form within 30 days of agreeing to these Terms.

Informal Dispute Resolution: Before resorting to formal arbitration, you agree to first attempt to resolve any dispute arising from the Agreement, the Software, or the Services through an informal process. You are required to send an email to [email protected] with the subject line “Legal Dispute.” The email must include your name, the name of your business or entity (if applicable), a description of your dispute, and the relief you seek. Upon receipt of your email, we will have 60 days to address and resolve the dispute to your satisfaction. If the dispute is not resolved within this 60-day period, either party may proceed to formal arbitration as outlined in the Arbitration Agreement section.

Arbitration Procedures: The arbitration will be conducted by a single arbitrator, selected in accordance with the rules of the American Arbitration Association (AAA), which are hereby incorporated by reference as applicable. The AAA’s rules are available at www.adr.org. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity, subject to the limitations of liability found within the Agreement. The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction.

The venue for the arbitration proceedings shall be in the county where RealProof, Inc. has its principal place of business. The parties agree that any arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis.

Waiver of Jury Trial and Class Actions: YOU AND REALPROOF, INC. AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if the parties’ dispute is resolved through arbitration, the arbitrator may not consolidate another person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. YOU ACKNOWLEDGE AND AGREE THAT YOU AND REALPROOF, INC. ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING.

This Arbitration Agreement will survive the termination of the Agreement or relationship with RealProof, Inc.

Warranty Disclaimer: OUR WEBSITE, OUR SOFTWARE, CONTENT, DOCUMENTATION, AND SERVICES ARE PROVIDED “AS IS” AND WE HEREBY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. WE SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WE MAKE NO WARRANTY OF ANY KIND THAT THE IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.

Limitations of Liability: IN NO EVENT WILL WE BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER WE WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL OUR AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, INDEMNIFICATION UNDER THE FOLLOWING SECTION 9, AND OTHERWISE, EXCEED ONE TIMES THE TOTAL AMOUNTS PAID TO US UNDER THIS AGREEMENT IN THE THREE-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR $10,000, WHICHEVER IS LESS.

Limitations of Liability for Mass or Coordinated Filings: IN THE EVENT OF MASS OR COORDINATED FILINGS AGAINST US, WHETHER THROUGH ARBITRATION OR ANY OTHER LEGAL PROCESS, ARISING OUT OF THE SAME OR RELATED CIRCUMSTANCES OR CLAIMS, THE AGGREGATE LIABILITY ACROSS ALL SUCH FILINGS SHALL BE CAPPED AT A TOTAL OF $20,000. THIS CAP SHALL APPLY IRRESPECTIVE OF THE NUMBER OF FILINGS, THE NUMBER OF CLAIMANTS, OR ANY OTHER FACTOR. THIS LIMITATION IS CUMULATIVE AND NOT PER INCIDENT. THE AFOREMENTIONED CAP IS THE AGGREGATE LIABILITY FOR ALL CLAIMS AND SHALL NOT BE INTERPRETED TO ESTABLISH OR IMPLY ANY INDIVIDUAL LIABILITY CAP PER CLAIM OR PER FILING.

US Government Rights

Each of the Documentation and the software components that constitute the Services is a “commercial item” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Customer is an agency of the US Government or any contractor therefore, Customer only receives those rights with respect to the Services and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government users and their contractors.

Severability

If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

Force Majeure

In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.

Amendment of Terms

RealProof, Inc. reserves the right, at its sole discretion, to modify, amend or update the Terms of Service at any time by posting the amended terms on the ListenLayer Software or by providing written notice to you via email. It is your responsibility to check these Terms of Service periodically for changes. Your continued use of the ListenLayer Software and services following the posting or notification of changes will mean that you accept and agree to the changes. The updated Terms of Service will supersede all previous versions, unless specified otherwise in writing. If any changes are made to the Terms of Service that materially affect your rights or obligations, we will provide additional notice to you, such as by sending an email or displaying an announcement on our Software. If you do not agree to the updated Terms of Service, you must stop using the ListenLayer Software and Services.

Notices

All notices, requests, demands, and other communications under these Terms of Service shall be in writing. For the purposes of this agreement, “writing” includes email and similar electronic methods. Notices sent to RealProof, Inc. should be directed to [email protected] or mailed to:

RealProof, Inc.
6855 S Dayton St #5456
Greenwood Village, CO 80112

Notices delivered by email shall be deemed to have been received upon confirmation of receipt by RealProof, Inc., which may be provided in writing via email or any other method. Notices sent by mail shall be deemed to have been received upon actual receipt by RealProof, Inc., as may be confirmed by return correspondence.