Terms of Service

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Sidekick Terms of Service

Effective as of November 3, 2017

Welcome to Sidekick! 

Sidekick is a cloud-based marketplace. Our products make it easier for people to find and purchase cloud solutions. Since our products are cloud based, you can access them through the web and through any number of device types (e.g., desktop, laptop, tablets, and smartphone devices) that you choose.

This document, the Sidekick Terms of Service (“Terms”), outlines the terms regarding your use of our products.  These Terms are a legally binding contract between you and Sidekick so please read carefully.  If you do not agree with these Terms, do not register or use any of the Services.

By using, accessing or browsing the Sidekick Marketplace, platform and products including applications, mobile, software, websites or other properties owned or operated by Sidekick or by registering for a Sidekick account (“Services”) you are agreeing to be bound by these Terms for the Services provided by Sidekick (“Sidekick” or “we”).

If you are using the Services on behalf of an organization, you are agreeing to these Terms for that organization and promising to Sidekick that you have the authority to bind that organization to these Terms (in which event, “you” and “your” will refer to that organization) unless that organization has a separate paid contract in effect with us, in which event the terms of that contract will govern your use of the Services.

  1. PRIVACY

In order to operate and provide the Services, we collect certain information about you. We use and protect that information as described in our Privacy Policy .  You acknowledge your use of the Services is subject to our Privacy Policy and understand that it identifies how Sidekick collects, stores, and uses certain information.

  1. CHANGES TO THESE TERMS

We reserve the right to modify these Terms. We will post the most current version of these Terms at sidekick.co (the “Site”).  If we make material changes to these Terms, we will notify you via the Services and/or by email to the address associated with your account.  If you do not accept the changes, you must stop using and cancel your account by emailing cancel@sidekick.co.  Your continued use of our Services after we publish or send a notice about our changes to these Terms means that you are consenting to the updated terms.

  1. YOUR ACCOUNT

Certain aspects of the Services may require you to obtain an account by completing a registration form and designating a user ID and password.  When registering with Sidekick you must: (a) provide true, current and complete information about yourself on the registration form and (b) maintain such information so it continues to be true, current and complete.

You are entirely responsible for all materials and information that you upload, post or otherwise transmit via the Services (please also see our Acceptable Use Policy in Section 10).  Only you may use your Sidekick account and you are responsible for your account.  If you become aware of any unauthorized use of the Services or your account, or have any questions about your account please contact Sidekick Support by emailing support@sidekick.co.

EMAIL SELECTED FOR YOUR ACCOUNT

You get to choose what email address(es) you register for an account.  Please be aware, however, that if the domain of the email address associated with your account is owned or controlled by an organization (such as your employer or listed organization) and that organization establishes a direct relationship with us and wishes to add your account to such relationship, then you may be rolled into that organization’s account after notification.  Following that notice, if you choose not to change the email address associated with your account, your account will be controlled by the organization.

If an organization provided you with your account (e.g., an employer or government organization), you understand that this organization has rights to your account and may: (a) manage your account (including suspending or canceling); (b) reset your password; (c) view your usage and profile data, including how and when your account is used; and (d) manage the Content in your account.

  1. CONSENT TO ELECTRONIC COMMUNICATIONS AND SOLICITATION

By registering with Sidekick or signing up for Services, you understand that we may send you (including via email) information regarding the Services, such as: (a) notices about your use of the Services, including notices of violations of use; (b) updates to the Services and new features or products; and (c) promotional information and materials regarding Sidekick’s products and services.  Please review your settings in your account to control the messages you receive from us or unsubscribe by following the instructions in the message.

Notices emailed to you will be considered given and received when the email is sent.  If you don’t consent to receive notices (other than promotional materials) electronically, you must stop using the Services.

  1. CONTENT

We call all the electronic information that you upload and store on your account “Content”.  All Content uploaded by you into your account is yours!  We don’t control, verify, or endorse the Content that you or others put on the Services.  You are responsible for: (a) all Content you place in your Sidekick account(s) and share through the Services and (b) making sure that you have all the rights you need to the Content.  In addition, by storing, using or transmitting Content you cannot and will not violate any law or these Terms (please also see the Acceptable Use Policy in Section 10).

Content requiring verification from listed participating organizations, such as certifications, partnerships, channel relationships, expertise, qualifications, etc. will require validation from those organizations. Every effort will be made to ensure timely communication and clarity of information so that those relationships are as truthful and up-to-date as possible. You agree to ensure any content requiring such validation is truthful and accurate on an ongoing basis.

You agree to provide Sidekick (as well as agents or service providers acting on Sidekick’s behalf to provide the Services) the right to transmit, process, use and disclose Content and other information which we may obtain as part of your use of the Services but only: (i) as necessary for us to provide the Services, (ii) as otherwise permitted by these Terms, (iii) as otherwise required by law, regulation or order, or (iv) to respond to an emergency.

  1. COPYRIGHT COMPLAINTS AND REMOVAL POLICY

Sidekick respects the intellectual property of others and will respond to notices of alleged copyright infringement that comply with the law. We reserve the right to delete or disable Content alleged to violate copyright laws or these Terms and reserve the right to terminate the account(s) of violators.

If you believe there has been a violation of your intellectual property rights, please complete our copyright compliant form.

Or contact our designated copyright agent by mail:

Attn: Copyright Agent, Sidekick Professional Services, Inc. 3232 Oakwood Drive SW, Calgary, AB T2V 0J9, Canada.

  1. CONFIDENTIAL INFORMATION

During your use of the Services, Sidekick may share with you information that is confidential, sensitive or should be kept secret. For example, if we tell you about our product roadmaps, product designs and architecture, technology and technical information, provide you with security audit reviews, business and marketing plans, or share with you our business processes, these should always be considered confidential to Sidekick.

Similarly, we agree that your Content, credit card/banking information and information contained in your account is confidential to you.

Also, if either of us provide any documents to the other that are labeled “confidential” (or something similar), or provide information (either in writing or verbal) that is of a type that a reasonable person should understand to be confidential such information is to be treated as confidential information.

However, if you tell us information that:  (a) we already know at the time you tell us; (b) was told to us by a third party who had the right to tell us; (c) is generally available to the public; or (d) was independently developed by us without using any of your confidential information, then that information will not be considered confidential.  The same goes for information that we tell you that falls into any of these categories.

Lastly, we both agree that: (i) we will treat each other’s information with the same degree of care that we treat our own confidential information; (ii) will use each other’s confidential information only in connection with these Terms and the Services; (iii) only share the information with others who have a need to know and who have agreed in writing to treat it as confidential (as we’ve outlined in this section); and (iv) not share the information with any third party except as allowed in these Terms or through the Services.  Of course, confidential information will always remain the property of its owner.

  1. CONTENT STORAGE

The Services are provided from the United States.  By using and accessing the Services, you understand and agree to the storage of Content and any other personal information in the United States.  However, you understand that you (or other people that you collaborate with) can access the Services (including Content) from outside of the United States (subject to applicable law) and that nothing prohibits the processing of other information outside of the United States.  Sidekick does offer products that enable storage and/or processing of Content outside of the United States and those products are subject to the Sidekick Zones specific terms in Section 25.

  1. ACCEPTABLE USE POLICY

You agree you will not, nor will you encourage others or assists others, harm the Services or use the Services to harm others.  For example, you must not use the Services to harm, threaten, or harass another person, organization or Sidekick and/or to build a similar service or website.  You must not:  (a) damage, disable, overburden, or impair the Service (or any network connected to the Services); (b) resell or redistribute the Services or any part of it; (c) use any unauthorized means to modify, reroute, or gain access to the Services or attempt to carry out these activities; (d) use any automated process or service (such as a bot, a spider, or periodic caching of information stored by Sidekick) to access or use the Services; (e) use the Services beyond the features allocation and amounts provided in that Service or in violation of our fair use policy; (f) use the Services to violate any law of distribute malware or malicious Content; or (g) distribute, post, share information or Content you don’t have the right to or is illegal, fake, knowingly biased, profane, racist, sexist, ageist or similarly anti-social or untrue.

As part of our efforts to protect the Service, protect our customers, or to stop you from breaching these Terms we retain the right to block or otherwise prevent delivery of any type of file, email or other communication to or from the Services.

We also reserve the right to deactivate, change and/or require you to change your Sidekick user ID and any custom or vanity URLs, custom links, or vanity domains you may obtain through the Services.

  1. SUSPENSION AND TERMINATION OF THE SERVICE

We reserve the right to suspend or terminate your access to the Service at any time in our sole discretion.  You understand that if your account is suspended or terminated, you may no longer have access to the Content that is stored with the Services.

Upon termination you may request access to your Content, which we will make available, except in cases where we have terminated your account due to your violation of these Terms or the Acceptable Use Policy terms in Section 10.  You must make such request within 14 days following termination otherwise, any Content you have stored with the Services may not be retrievable and we will have no obligation to maintain Content stored in your account after this 14-day period.

  1. UPDATES TO THE SERVICE

We can make necessary deployments of changes, updates or enhancements to the Services at any time.  We may also add or remove functionalities or features, or we may suspend or stop the Services altogether.

  1. THIRD PARTY SERVICES

Sidekick may make available to you optional third-party applications, services or products, for use in connection with the Services (“Third-Party Products”).  These Third-Party Products are not necessary for the use of the Services and your use (and any exchange of any information, license, payments etc., are between you and the third party provider) is solely between you and the applicable third party provider.  Sidekick makes no warranties of any kind and assumes no liability of any kind for your use of such Third-Party Products.

If you have any questions or concerns regarding the Third-Party Products, then please contact the applicable third party provider.

  1. SIDEKICK PROPRIETARY RIGHTS  

All contents of the Site and Services including but not limited to logo, design, text, software, technical drawings, configurations, graphics, other files, and their selection and arrangement and Sidekick Confidential Information belong to Sidekick, and/or its suppliers, affiliates, or licensors.

Sidekick or its licensors own and reserve all right, title and interest in and to the Services and all hardware, software and other items used to provide the Services, other than the rights we expressly grant to you to use the Services and Sidekick Confidential Information.  No title to or ownership of any proprietary rights related to the Services or Sidekick Confidential Information is transferred to you pursuant to these Terms.

If you provide comments, suggestions and recommendations to Sidekick about a Service (e.g., modifications, enhancements, improvements) (collectively, “Feedback“), you are automatically assigning this Feedback to Sidekick.

  1. NO WARRANTY OR CONDITIONS  

TO THE EXTENT NOT PROHIBITED BY LAW, SIDEKICK AND ITS AFFILIATES (AND ASSOCIATED SERVICE PROVIDERS) (A) PROVIDE THE SERVICES “AS IS”, “WITH ALL FAULTS” AND “AS AVAILABLE”, (B) MAKE NO REPRESENTATIONS OR WARRANTIES OR CONDITIONS WHETHER EXPRESS OR IMPLIED (E.G. WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT), AND (C) DO NOT GUARANTEE THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF HARMFUL COMPONENTS, THAT THE CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED.

IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICES.

  1. INDEMNIFICATION

To the extent not prohibited by law, you will defend Sidekick against any cost, loss, damage, or other liability arising from any third party demand or claim that any Content or information provided by you, or your use of the Services: (a) infringes a registered patent, trademark, or copyright of a third party, or misappropriates a trade secret (to the extent that such misappropriation is not the result of Sidekick’s actions); or (b) violates applicable law or these Terms.  Sidekick will reasonably notify you of any such claim or demand that is subject to your indemnification obligation.

  1. LIMITATION OF LIABILITY

TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL SIDEKICK, ITS AFFILIATES, RESELLERS, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE FOR: ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, REVENUE, GOODWILL, USE OR CONTENT) HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, WARRANTY, NEGLIGENCE OR OTHERWISE, EVEN IF SIDEKICK HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES.

THE AGGREGATE LIABILITY OF SIDEKICK AND ITS AFFILIATES, OFFICERS, RESELLERS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS, RELATING TO THE SERVICES WILL BE LIMITED TO THE GREATER OF: (A) ONE AND A HALF (1.5) TIMES THE MOST RECENT MONTHLY OR YEARLY FEE THAT YOU PAID FOR THAT SERVICE; OR (B) ONE HUNDRED DOLLARS ($100 U.S.D.). THE LIMITATIONS AND EXCLUSIONS ALSO APPLY IF THIS REMEDY DOES NOT FULLY COMPENSATE YOU FOR ANY LOSSES OR FAILS OF ITS ESSENTIAL PURPOSE.

SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES.  IN SUCH AN EVENT, THIS LIMITATION WILL NOT APPLY TO YOU TO THE EXTENT PROHIBITED BY LAW.

  1. DISPUTE RESOLUTION AND GOVERNING LAW

You must comply with all domestic and international export laws and regulations that apply to your use of the Services, such as software.  These laws include restrictions on destinations, end users, and end use.

If you reside in the United States, you agree that the Terms, and your relationship with Sidekick will be governed by the laws of the State of California, U.S.A. regardless of conflict of laws principles.  We both agree that the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act does not apply to these Terms.  We both agree that all of these claims can only be litigated in the federal or state courts in Santa Clara County, California, USA and we each agree to personal jurisdiction in those courts.  However, you agree that Sidekick can apply for injunctive remedies in any jurisdiction.

If you reside outside of the United States, you agree that the Terms, and your relationship with Sidekick, shall be governed by the laws of Canada without regard to its conflict of laws rules. We both agreed that the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act do not apply.  We both agree that all claims can only be litigated in Calgary, Canada and we each agree to personal jurisdiction of the courts located within Calgary, Canada.  However, you agree that Sidekick can apply for injunctive remedies in any jurisdiction.

  1. TRIALS

You can sign-up for a trial for some of the Services and your trial period starts on the day you create the trial account and lasts for 14 days. If you are on a trial, you may cancel at any time until the last day of your trial. If you do not wish to incur charges, you must cancel the account by the end of the 14th day.

If you do not cancel your account and we have told you the account will converted to a paid subscription at the end of the trial period, then you authorize us to charge your credit card for that specific Service. You may, however, cancel your subscription before the next billing cycle in accordance with these Terms, but no credits or refunds will be available.

  1. FEES

Sidekick offers both free and paid Services.  If you choose to subscribe to a paid Service, you agree to pay the fees (“Fees“) as quoted to you when you purchase that Service.  We may calculate taxes payable by you based on the billing information that you provide us at the time of purchase. You are responsible for all charges related to using the purchased Service (for example, data charges and currency exchange settlements).  You will pay the Fees in the currency Sidekick quoted at the time of purchase.  Sidekick reserves the right to change the eligible currencies at any time.

Sidekick reserves the right to change its prices at any time, however, if we have offered a specific duration and Fee for your use of the Service, we agree that the Fee will remain in force for that duration.  After the offer period ends, your use of the Service will be charged at the then-current Fee(s).  If you don’t agree to these changes, you must stop using the Service and cancel via email to cancel@Sidekick.com (with cancellation confirmation from a Sidekick representative).  If you cancel, your Service ends at the end of your current Service period or payment period, and no refunds for previously paid services will be issued.

If you do not cancel in accordance with these Terms, the subscription for the Service will automatically renew at the then-current price and for the same subscription period.  We will charge your credit card on file with us on the first day of the renewal of the subscription period.

  1. BILLING/PAYMENT 

If you select a paid Service, you must provide us with current, complete, accurate and authorized payment method information (e.g. credit card information).  You authorize us to charge your provided payment method for the Services you have selected and for any paid feature(s) that you choose.  We may bill: (a) in advance; (b) at the time of purchase; (c) shortly after purchase; or (d) if you have elected a subscription service, on a recurring basis.  To the extent Sidekick has not received your payment, in order to bring your account up to date, we may bill you simultaneously for both past due and current amounts.  If you do not cancel your account, we may automatically renew your Service(s) and charge you for any renewal term.  You understand that failure to pay any charges or fees may result in the suspension or cancellation of your Services.

  1. SUBSCRIPTION PERIOD

You may elect one of the following subscription plans and billing options (please note that there might be only one of these options available depending on the Service purchased):

A monthly subscription plan (“Monthly Subscription Plan”). The subscription period for the Monthly Subscription Plan will be for one month and will automatically renew unless you cancel your Monthly Subscription Plan at least three business days prior to the renewal date.You will be billed on or about the same day each month until such time that you cancel.

An annual subscription plan (“Annual Subscription Plan”). The subscription period for the Annual Subscription Plan will be for one year and will automatically renew each year on the anniversary unless you cancel at least three business days prior to your renewal date. You will be billed annually on or about the same day each year until such time that you cancel.  Note that under the Annual Subscription Plan you will not be permitted to cancel, reduce the number of seats, or downgrade the Sidekick Marketplace you have selected until the anniversary date. Be aware that you are committing to a one-year plan; if you are not certain, we recommend choosing the Monthly Subscription Plan.

If you select the Monthly Subscription Plan, you can switch to the Annual Subscription Plan at any time.  If you select the Annual Subscription Plan, you may not change to the Monthly Subscription Plan until the end of the one-year term of your Annual Subscription Plan.

  1. SIDEKICK SUBSCRIPTION SPECIFIC TERMS

If you are purchasing a Sidekick subscription plan, the following additional terms apply to you:

You:  (a) are required to have a Sidekick account for each user, (b) will only receive the features and functionality that are included in the specific subscription plan that you have purchased, (c) are responsible for setting your configurations of the Sidekick Marketplace, and (d) are responsible for managing any of your devices and/or any systems that you use to access the Sidekick Marketplace.

  1. SIDEKICK PLATFORM PRODUCTS SPECIFIC TERMS  

If you are purchasing any of the Platform products, the following additional terms apply to you:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

PLATFORM PRODUCT SPECIFIC DEFINITIONS:

 

“API” is the application-programming interface used by you to access functionality provided by Sidekick.
“Content” means the same specified in Section 6, but includes Content uploaded by Platform Application Users and Platform Service Accounts.
“Monthly Active User” or “MAU” is a Platform Application User that uses the Service via an API call (made by or on the behalf of the Platform Application User account) at least once in a monthly calendar period.
“Monthly Platform API Calls” is any API call made by a Platform Application to the Service within a monthly calendar period on behalf of:  (a) a Platform Application User; (b) a User; or (c) a Platform Service Account, not to exceed your allotted amount.  Except as otherwise set forth in an order, excluded from Monthly Platform API Calls are API calls made on behalf of: (i) third party software application integrations that are permitted with your use of the Service; (ii) Sidekick provided applications (e.g., the Sidekick Web App, Sidekick Desktop, Sidekick Notes, Sidekick Capture); (iii) Sidekick provided services, if applicable.
“Monthly Platform Bandwidth” is the Platform Bandwidth consumed on a monthly calendar basis by or on behalf of:  (a) a Platform Application User; (b) a User; or (c) a Platform Service Account, not to exceed your allotted amount.  Unless specified in an order, excluded from Monthly Platform Bandwidth is Platform Bandwidth consumed by: (i) third party software application integrations that are permitted with your use of the Service; (ii) Sidekick provided applications (e.g., the Sidekick Web App, Sidekick Desktop, Sidekick Notes, Sidekick Capture); and (iii) Sidekick provided services (e.g. Sidekick Shuttle), if applicable.
“PlatformApplication” is an application used by or on behalf of you that uses the API for the purposes of access to the Service.
“Platform Application User” is a user with a unique identifier that is created and provisioned by you and such user’s access to Content in the Service is governed through the Platform Application.
“Platform Bandwidth” is the flow of data to or from the Service as a result of the Platform Application, measured in gigabytes (GB), not to exceed your allotted amount.
“Platform Product(s)” is the Sidekick API(s) that provide programmatic access to the Service from a Platform Application, and any additional Platform Product features and functionalities.  The Platform Products include certain features that permit a Service Account/User/Platform Application User to view, annotate and comment on Content (“View”) if set forth in your order.  Sidekick’s APIs, tools and services made available for development of a Platform Application with respect to the APIs are also Platform Product(s).
“Platform Service Account” is a non-Sidekick software application with a unique identifier that is created and provisioned by you and your access to Content in the Service is governed through the Platform Application.
Platform Storage” is the total amount of Content, measured in gigabytes (unless otherwise specified), stored by or on behalf of all Platform Application Users, Platform Service Accounts and any other users of Platform Products, not to exceed your allotted amount.
“Platform UseLimit(s)” is the amount as specified and allocated to you for:  (i) Monthly Platform Bandwidth, Monthly Platform API Calls, Platform Storage and number of Monthly Active Users; and (ii) any other applicable usage limits or restrictions.
“User(s)” is any person who is permitted by you to access, store, retrieve or manage Content in any account.

 

You receive the features and functionality that are provided in the specific Platform Product(s) that you have registered or purchased.  You agree to only incorporate the API into the Platform Applications for the sole purpose of accessing certain functionality subscribed to by you, solely through the API and associated tools and services.  You will ensure that your usage of the Platform Products is at all times in conformance with the Platform Use Limits, these Terms and applicable law.

If you exceed the Platform Use Limits, additional fees will be due and/or reasonable restrictions may be placed on your account until any such excess usage is adequately eliminated by you.

You may not co-brand any Platform Products or use any Sidekick trademarks, logos, or other Sidekick marks to promote and market the Platform Products without Sidekick’s prior written consent.

You will not, and will make sure that the Platform Application does not and you will not permit use of the Platform Application:  (a) to violate these Terms; (b) to perform hidden activities without Platform Application User consent (such as downloading components or other software); (c) that may alter a Platform Application User’s system without permission from the Platform Application User; (d) impersonate, or misrepresent an affiliation with, any person or entity;  (e) use in any manner not authorized by a Platform Application User; except as otherwise authorized by a Platform Application User with respect to such Platform Application User’s Content; (f) mine or analyze any Content transmitted to, retrieved from or stored in the Platform Products/the Service (including, but not limited to, through spiders, robots, crawlers, data mining tools, scrapers, or other automated means, or services employing any such means); (g) circumvent any security measures or content filtering devices;  (h) use or affect the Platform Products in any manner that could damage, disable, overburden or impair the Platform Products (including, but not limited to, flooding the Platform Products with an excessive amount of data or content); or (i) permit use in connection with any purposes or intended application which involves risks or dangers that could lead to death, serious bodily injury, severe physical or property damage, or use for purposes that otherwise require significant safety precautions (e.g. uses of the Platform Products in connection with operation of emergency services, air traffic control, mass transport systems, or nuclear facilities).

  1.    GENERAL TERMS

25.1     Severability; Entire Agreement. These Terms apply to the maximum extent permitted by relevant law.  If a court holds that we cannot enforce a part of these Terms as written, you and we will replace those terms with similar terms to the extent enforceable under the relevant law, but the rest of these Terms will remain in effect.  This is the entire contract between you and us regarding the Service.  It supersedes any prior contract or oral or written statements regarding your use of the Services.

25.2     Assignment and transfer. We may assign, transfer, or otherwise dispose our rights and obligations under this contract, in whole or in part, at any time without notice.  You may not assign this contract or transfer any rights to use the Service, unless we allow you to do so in writing.

25.3     Independent Contractors; No third-party beneficiaries. Sidekick and you are not legal partners or agents; instead, our relationship is that of independent contractors.  This contract is solely for your and our benefit.  It is not for the benefit of any other person, except for permitted successors.

25.4     Waiver. The failure of either of us to insist upon or enforce strict performance of any of the provisions of these Terms or to exercise any rights or remedies under these Terms will not be construed as a waiver or relinquishment to any extent of such right to assert or rely upon any such provision, right or remedy in that or any other instance; rather, the same will remain in full force and effect.

25.5 Government Terms. If Customer is a U.S. government entity or if this Agreement otherwise becomes subject to the Federal Acquisition Regulations (FAR), Customer acknowledges that elements of the Sidekick Marketplace constitute software and documentation and are provided as “Commercial Items” as defined at 48 C.F.R. 2.101, and are being licensed to U.S. government User as commercial computer software subject to the restricted rights described in 48 C.F.R. 2.101 and 12.212.