PLEASE REVIEW THESE TERMS CAREFULLY. BY REGISTERING FOR AN ACCOUNT OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, INCLUDING ANY UPDATES OR REVISIONS TO THE TERMS OR ANY POLICY. THIS AGREEMENT PROVIDES THAT ALMOST ALL DISPUTES BETWEEN YOU AND US ARE SUBJECT TO BINDING ARBITRATION AS WELL AS A WAIVER OF CLASS ACTION RIGHTS AND ANY RIGHT TO A JURY TRIAL AS DETAILED IN THE ARBITRATION AND CLASS ACTION WAIVER SECTION BELOW. BY ENTERING THIS AGREEMENT, YOU GIVE UP YOUR RIGHT TO SUE IN COURT, HAVE YOUR CLAIMS HEARD BY A JURY, AND TO BE PART OF A CLASS OR COLLECTIVE ACTION, TO RESOLVE THESE DISPUTES, AS EXPLAINED IN MORE DETAIL IN THAT SECTION.
Acceptance of Terms
- This Agreement (this “Agreement”), including the BINDING ARBITRATION AND CLASS ACTION WAIVER CONTAINED HEREIN, is entered into by and between Deskdub.com, Inc. (“Deskdub,” “we,” “us,” or “our”) and you (“Customer,” “you” or “your”) (each herein also referred to individually as a “Party,” or collectively as the “Parties”).
- Deskdub offers simple and efficient transcription, video caption, translation and other related document services through its proprietary online platform accessible from the website .
- If you are entering into the Terms on behalf of a company or other legal entity, you represent and warrant that you are authorized and lawfully able to bind such entity to the Terms, in which case “you” shall refer to such entity. You represent and warrant that you are:
- over eighteen (18) years of age or the age of majority in your jurisdiction, whichever is greater;
- of legal age to form a binding contract;
- not a person barred from using the Service under the laws of your country of residence or any other applicable jurisdiction;
- not located in a country that is subject to a U.S. Government embargo or designated by the U.S. Government as a “terrorist supporting” country; and
- not listed on any U.S. Government list of prohibited or restricted parties, including the Specially Designated Nationals List.
IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS, YOU MAY NOT ACCESS OR USE THE SERVICE.
Grant of Rights.
Deskdub grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to (a) access and view pages within the Service; (b) to access and use any online software, applications or other similar components made available through the Service, only within the Service and only in the form found within the Service; and (c) install, run and use the Apps on a device that you own and control, in executable, machine-readable, object code form only. All rights granted to you under this Agreement are subject to your compliance with the Terms in all material respects.
LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY:
- Deskdub’S LIABILITY ARISING FROM (i) DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE, (ii) FRAUDULENT MISREPRESENTATION, OR (iii) ANY OTHER LOSS OR DAMAGES FOR WHICH SUCH LIMITATION IS EXPRESSLY PROHIBITED BY APPLICABLE LAW, SHALL BE UNLIMITED.
- SUBJECT TO SECTION 3(a), THE MAXIMUM AGGREGATE MONETARY LIABILITY OF Deskdub AND ANY OF ITS REPRESENTATIVES IN CONNECTION WITH THIS AGREEMENT UNDER ANY THEORY OF LAW SHALL NOT EXCEED ACTUAL DAMAGES INCURRED UP TO THE GREATER OF:
- AN AMOUNT EQUAL TO SIX TIMES THE FEES PAYABLE BY CUSTOMER FOR THE USE OF THE SERVICES THAT ARE THE SUBJECT OF THE CLAIM IN THE FIRST MONTH IN WHICH FEES ARE CHARGED UNDER THIS AGREEMENT, OR
- THE TOTAL AMOUNT PAID BY CUSTOMER TO Deskdub FOR THE USE OF THE PLATFORM OR SERVICES THAT ARE THE SUBJECT OF THE CLAIM IN THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENT(S) THAT FIRST GAVE RISE TO THE CLAIM.
- THE TERMS REQUIRE BINDING ARBITRATION TO RESOLVE ANY DISPUTE OR CLAIM ARISING OUT OF OR RELATING IN ANY WAY TO THE TERMS OR YOUR ACCESS TO OR USE OF THE SERVICE, INCLUDING THE VALIDITY, APPLICABILITY OR INTERPRETATION OF THE TERMS (EACH, A “CLAIM”), AND YOU AGREE THAT ANY SUCH CLAIM SHALL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, COLLECTIVE, CONSOLIDATED OR REPRESENTATIVE ACTION, ARBITRATION OR OTHER SIMILAR PROCESS. PLEASE REVIEW SECTIONS 11(j) and 11(k) CAREFULLY TO UNDERSTAND YOUR RIGHTS AND OBLIGATIONS WITH RESPECT TO THE RESOLUTION OF ANY CLAIM.
- “Applicable Law” means all applicable laws and regulations, including any relating to workplace safety, anti-money laundering, anti-corruption, privacy, data protection, export control or transactions with foreign nationals.
- “Aggregate Data” means data that has been aggregated in a manner that does not reveal any personal information and cannot reasonably be used to identify Customer or End Users as the source of such data.
- “Agreement” (including, without limitation, the term “this Agreement”) means, collectively, the Terms, any Policy, and other addenda which govern Customer’s use of the Platform or Deskdub’s provision of Service.
- “Credentials” means any user accounts, passwords and other authentication credentials associated with use of the Platform by Customer or End Users.
- “Customer Data” means all information, content, data and other materials that Customer and End Users submit, upload, email, transmit, process or otherwise make available through the Platform.
- “Customer Facilities” means Credentials, and any other account, hardware, platform, system or facility within Customer’s custody or control.
- “Emergency Security Issue” means any: (i) use of the Platform by Customer or End Users that disrupts or is reasonably likely to disrupt the availability of the Platform to other users; or (ii) access to the Platform by any unauthorized third party through use of any Customer Facilities.
- “End Users” means Customer’s employees and contractors who access and use the Platform pursuant to this Agreement.
- “Intellectual Property” means all rights associated with patents and inventions; copyrights, mask works and other works of authorship (including moral rights); trademarks, service marks, trade dress, trade names, logos and other source identifiers; trade secrets; software, databases and data; and all other intellectual property and industrial designs.
- “Platform” means Deskdub’s proprietary platform for simple and efficient transcription, video caption, translation and other related document services.
- “Policy” means any privacy or security policy and other guidelines instituted by Deskdub or its licensors or service providers, as may be updated from time to time.
- “Suggestions” means any suggestions, comments, ideas, improvements or other feedback relating to the Platform that Customer or End Users elect to provide or make available to Deskdub.
- “Support” means the maintenance and support services for the Platform to be provided by Deskdub to Customer as specified in Schedule 1.
- Account, Password and Security: You are responsible for maintaining the confidentiality of your password and account, if any, and are fully responsible for any and all activities that occur under your password or account. You agree to (i) immediately notify Deskdub of any unauthorized use of your password or account or any other breach of security, and (ii) ensure that you exit from your account at the end of each session when accessing the Service. Deskdub will not be liable for any loss or damage arising from your failure to comply with this Section.
- Except as expressly permitted under this Agreement, Customer shall not itself, nor shall it permit any other party to: (i) reproduce, modify, translate, adapt or create derivative works based upon the Platform; (ii) reverse engineer, decode, decompile, disassemble or otherwise attempt to access or derive the source code or architectural framework of the Platform; (iii) access the Platform for purposes of benchmarking or developing, marketing, selling or distributing any product or service that competes with or includes features substantially similar to the Platform; (iv) take any action that imposes an unreasonable or disproportionately heavy load on the Platform or its infrastructure or that negatively affects the ability of others to access or use the Platform; (v) rent, lease, lend, sell or sublicense the Platform or otherwise provide access to the Platform as part of a service bureau or similar fee-for-service purpose; or (vi) use the Platform in any way that does not comply with all Applicable Law.
Without limiting the generality of the foregoing sentence, the following are examples of the kind of content and/or use that is illegal or prohibited by Deskdub and you agree not to use the Service to:
- email or otherwise upload any content that (i) infringes any intellectual property or other proprietary rights of any party; (ii) you do not have a right to upload under any law or under contractual or fiduciary relationships; (iii) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (iv) poses or creates a privacy or security risk to any person; (v) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful racially, ethnically or otherwise objectionable; or (vii) in the sole judgment of Deskdub, is objectionable or which restricts or inhibits any other person from using or enjoying the Service, or which may expose Deskdub or its users to any harm or liability of any type;
- interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
- violate any applicable local, state, national or international law, or any regulations having the force of law;
- impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
- solicit personal information from anyone;
- harvest or collect email addresses or other contact information of other users from the Service by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;
- advertise or offer to sell or buy any goods or services for any business purpose that is not specifically authorized;
- further or promote any criminal activity or enterprise or provide instructional information about illegal activities; or
- obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Service.
- upload any non-public, sensitive financial or medical information of any nature, or any non-public, sensitive personal data (e.g., social security numbers, driver’s license numbers, personal bank account numbers, passport or visa numbers and credit card numbers).
Deskdub reserves the right to investigate and take appropriate legal action against anyone who, in Deskdub’s sole discretion, violates this provision, including without limitation, removing the offending content from the Service, suspending or terminating the account of such violators and reporting you to the law enforcement authorities.
- Technical Requirements. Customer and End Users shall be solely responsible for obtaining, configuring and maintaining any hardware, network connectivity and third-party software and services required to access or provide access to the Platform, including the Customer Facilities and any other computers, mobile devices, operating systems, web browsers and storage devices.
- Customer shall be solely responsible for protecting the confidentiality of Credentials and all activities undertaken using Customer Facilities. In the event that Customer becomes aware of any unauthorized access to or use of the Platform, Customer shall promptly give written notice to Deskdub of such unauthorized access or use and make reasonable efforts to eliminate such unauthorized access or use. Customer shall at all times implement appropriate security policies and procedures and access control methodologies to safeguard access to and use of the Platform. All such measures shall comply with prevailing industry standards but in no case consist of less than reasonable care.
- Customer Back-Up. Customer acknowledges that Deskdub may establish general practices and limits concerning use of the Platform, including without limitation the maximum period of time that Customer Data will be retained by the Platform and the maximum storage space that will be allotted on Deskdub ‘s servers on Customer’s behalf. Customer shall be responsible for backing-up Customer Data.
- Compliance with Law. Customer shall be solely responsible for complying with Applicable Law relating to Customer’s access to and use of the Platform and its collection, storage, processing and use of Customer Data.
- In addition to the terms and conditions of this Agreement, access to and use of the Platform shall comply with and be subject to any Policies.
- To use the Services, you will be required to make one or more payments and provide Deskdub information regarding your credit card or other payment instrument. You represent and warrant to Deskdub that such information is true and that you are authorized to use the payment instrument. You will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur. You agree to pay Deskdub the amount that is specified in the Service in accordance with the terms therein and this Agreement. Prepayments shall be nonrefundable and may only be used for future services. Customer is responsible for any wire transfer fees. All fees specified herein are denominated in United States dollars unless otherwise specified.
- Deskdub may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Deskdub thirty (30) days after the mailing date of the invoice, or the Services may be suspended. Unpaid invoices are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower. If you dispute any charges you must let Deskdub know within thirty (30) days after the date that Deskdub invoices you.
- We reserve the right to change Deskdub ‘s prices at any time without notice. Deskdub’s pricing will be reflected on the Site. Your continued use of the Service after the price change becomes effective constitutes your agreement to pay the changed amount.
- Duplicative Uploads. Customer acknowledges and agrees that it shall be responsible for duplicative uploads of content or selecting the incorrect service type.
- Any and all amounts payable hereunder by Customer are exclusive of any value-added, sales, use, excise or other similar taxes (collectively, “Taxes”). Customer shall be solely responsible for paying all applicable Taxes.
- Intellectual Property
- Responsibility for Data. Customer and End Users, and not Deskdub, are solely responsible for all Customer Data and giving all required notices and obtaining all necessary consents (including all required permissions from Intellectual Property holders) before submitting Customer Data through or to the Platform. Customer and End Users shall not submit, upload, email, transmit or otherwise make available through the Platform any data not owned by Customer or End Users or for which Customer and End Users do not have all necessary authorization to submit, upload, email, transmit or otherwise make available through the Platform.
- Customer Ownership. Deskdub acknowledges and agrees that, as between Customer and Deskdub, Customer owns all rights, title and interest (including all Intellectual Property) in and to Customer Data and any translations, transcriptions, or captions of such Customer Data. During the term of this Agreement, Customer hereby grants Deskdub and its service providers a worldwide, royalty-free, non-exclusive license to use, reproduce, modify, adapt, create derivative works from, perform, display, distribute, make and have made Customer Data (including Aggregate Data) as necessary for Deskdub to: (i) provide access to the Platform to Customer and End Users (including any maintenance, calibration, diagnostic and troubleshooting); and (ii) monitor the performance of the Platform.
- Deskdub Ownership. Customer acknowledges and agrees that, as between Deskdub and Customer, Deskdub owns all right, title and interest (including all Intellectual Property) in and to the Platform and all improvements, enhancements or modifications thereto, including all data therein (except for Customer Data).
- Aggregate Data. Customer acknowledges and agrees that Deskdub may collect or generate Aggregate Data in connection with providing Customer and End Users with access to the Platform, and Customer hereby grants Deskdub and its service providers a perpetual, irrevocable, worldwide, royalty-free, fully-paid-up, non-exclusive, sublicensable, transferable license to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make and have made Aggregate Data for any lawful purpose.
- You acknowledge and agree that any Suggestions provided by you to Deskdub are non-confidential, shall become the property of Deskdub and Deskdub will be entitled to the unrestricted use and dissemination of these Suggestions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
- Intellectual Property Notices. Customer shall not remove, obscure or modify in any way any copyright or trademark notices or other notices or disclaimers that appear within the Platform or any other materials made available by Deskdub.
- Reservation of Rights. Each of the parties reserves all rights not expressly granted under this Agreement.
- Third-Party Software. Some components of the Platform may be provided with or have incorporated into them third-party software licensed under open source license agreements or other third-party license terms (“Third-Party Software”). Customer acknowledges and agrees that: (i) Deskdub has no proprietary interest in any Third-Party Software; (ii) notwithstanding anything to the contrary, any Third-Party Software is provided “AS IS,” with all faults, and neither the licensor of Third-Party Software nor Deskdub shall be liable for any direct, indirect, incidental, special, punitive or consequential damages, or lost profits or cost of cover, relating to arising from Third-Party Software, including access to or use of Third-Party Software; and (iii) Third-Party Software may be subject to separate terms and conditions set forth in the respective license agreements relating to such software.
- Term, Suspension and Termination
- The term of this Agreement will commence on the date you begin using the Service and will continue as long as you maintain a Deskdub account, unless terminated by either party in accordance with the terms of this Agreement. Either party may terminate this agreement upon 30 days written notice to the other party.
- Deskdub reserves the right to suspend Customer or any End User’s access to the Platform in the event of an Emergency Security Issue. Deskdub will make commercially reasonable efforts to limit suspension to the minimum extent and duration necessary to eliminate the Emergency Security Issue. Deskdub further reserves the right to suspend or revoke access to the Platform by any End User who violates this Agreement or any Policy.
- Termination for Cause. Notwithstanding anything to the contrary, this Agreement may be terminated as follows: (i) by the non-breaching party upon a material breach of this Agreement by the other party, which breach is not cured within thirty (30) days after receipt of written notice from the non-breaching party; or (ii) by either party in the event the other party becomes insolvent or bankrupt; becomes the subject of any proceedings under bankruptcy, insolvency or debtor’s relief law; has a receiver or manager appointed; makes an assignment for the benefit of creditors; or takes the benefit of any Applicable Law in force for the winding up or liquidation of such party’s business.
- Events Upon Termination. Upon expiration or termination of this Agreement for any reason: (i) all rights granted by the parties under this Agreement shall immediately terminate; and (ii) Customer shall immediately cease all use of the Platform made available under this Agreement. Upon expiration or termination of this Agreement each party shall immediately cease all use of the other party’s Confidential Information (as defined in Section 10(a) and upon written request, destroy all copies of such Confidential Information that are within its custody or control. Notwithstanding the termination of this Agreement for any reason, neither party will be relieved of any duty, obligation, debt or liability that arose or accrued prior to the effective date of termination. Within 30 days of Termination, Deskdub will return any prepaid, unused fees.
- Any provision that, by its terms, is intended to survive the expiration or termination of this Agreement shall survive such expiration or termination, including Sections: 3 (Limitation of Liability); 5 (Fees); 6 (Intellectual Property); 7(d) (Events Upon Termination); 7(e) (Survival); 8 (Indemnification); 9 (Confidential Information); 10 (Disclaimer of Warranties) and 11 (Miscellaneous).
- Deskdub Indemnification. Deskdub will defend Customer against any claim, demand, suit, or proceeding (“Claim”) made or brought against Customer by a third party alleging that the use of the Deskdub Service as permitted hereunder infringes or misappropriates a United States patent, copyright or trade secret and will indemnify Customer for any damages finally awarded against (or any settlement approved by Deskdub) Customer in connection with any such Claim; provided that
- Customer will promptly notify Deskdub of such Claim;
- Deskdub will have the sole and exclusive authority to defend and/or settle any such Claim (provided that Deskdub may not settle any Claim without Customer’s prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Customer of all related liability); and
- Customer reasonably cooperates with Deskdub in connection therewith. If the use of the Deskdub Service by Customer has become, or in Deskdub’s opinion is likely to become, the subject of any claim of infringement, Deskdub may at its option and expense (a) procure for Customer the right to continue using and receiving the Deskdub Service as set forth hereunder; (b) replace or modify the Deskdub Service to make it non-infringing (with comparable functionality); or (c) if the options in clauses (a) or (b) are not reasonably practicable, terminate this Agreement.
- Customer Indemnification. Customer agrees that Deskdub shall have no liability and Customer shall indemnify, defend and hold Deskdub harmless against any Loss to the extent arising from any Claim if such Claim is caused in whole or in part by:
- Customer’s breach of this Agreement or noncompliance with any Policy;
- use of the Deskdub Service by Customer not in accordance with this Agreement;
- the combination, operation or use of the Deskdub Service with other applications, portions of applications, product(s) or services where the Deskdub Service would not by itself be infringing.
This Section states Deskdub’s sole and exclusive liability and obligation, and Customer’s exclusive remedy for any claim of any nature related to infringement or misappropriation of intellectual property.
- The indemnified party shall:
- give the indemnifying party prompt written notice of any indemnified claim; provided, however, that failure of the indemnified party to give such prompt written notice shall not relieve the indemnifying party of any obligation to indemnify pursuant to this Section 8, except to the extent the indemnifying party has been prejudiced thereby;
- cooperate fully with the indemnifying party, at the indemnifying party’s expense, in the defense or settlement of any indemnified claim; and
- give the indemnifying party sole and complete control over the defense or settlement of any indemnified claim; provided, however, that any settlement must include a complete release of the indemnified party without requiring the indemnified party to make any payment or bear any obligation.
- Confidential Information
- “Confidential Information” means all business or technical information of a party whether it is received, accessed or viewed by the recipient, whether prior to or after the execution of this Agreement, in writing, visually, electronically or orally. Confidential Information shall include, without limitation, pricing information, custom service offerings, technical information, marketing and business plans, databases, specifications, formulations, tooling, prototypes, sketches, models, drawings, specifications, procurement requirements, engineering information, product samples, computer software (source and object codes), forecasts, identity or details about actual or potential customers or projects, clinical trials, techniques, inventions, discoveries, know-how and trade secrets, and any other information that could reasonably be considered as confidential information. Confidential Information also includes all such business or technical information of any third party that is in the possession of a party subject to the exceptions set forth in this Section.
Confidential Information does not include information that:
- was available to recipient prior to disclosure of such information to the recipient and free of any confidentiality obligation in favor of the disclosing party and known to the recipient at the time of disclosure;
- is made available to the recipient from a third party not known by the recipient at the time of such availability to be subject to a confidentiality obligation in favor of the disclosing party;
- is made available to third parties by the disclosing party without restriction on the disclosure of such information;
- is or becomes available to the public other than as a result of disclosure by the recipient prohibited by this Agreement; or
- is developed independently by a party or its directors, officers, members, partners, employees, consultants, contractors, agents, representatives or affiliated entities (collectively, “Associated Persons”).
- Non-Disclosure. The recipient will keep secret and will not disclose to anyone any of the Confidential Information, other than furnishing the Confidential Information to Associated Persons; provided that such Associated Persons are bound by agreements respecting confidential information. The recipient will use reasonable care and adequate measures to protect the security of the Confidential Information and to attempt to prevent any Confidential Information from being disclosed or otherwise made available to unauthorized persons or used in violation of the foregoing.
Notwithstanding anything to the contrary herein, a recipient is free to make, and this Agreement does not restrict, disclosure of any Confidential Information in a judicial, legislative or administrative investigation or proceeding or to a government or other regulatory agency; provided that, if permitted by law, the recipient provides to the disclosing party prior notice of the intended disclosure and permits the disclosing party to intervene therein to protect its interests in the Confidential Information, and cooperate and assist the disclosing party in seeking to obtain such protection
- Data Security. Deskdub will use commercially reasonable efforts to maintain security in accordance with Exhibit B: Security.
- Customer agrees that Deskdub may use Customer’s name and trademarks in Deskdub’s marketing materials and website; however, Deskdub will not use Customer’s name or trademarks in any other publicity (e.g., press releases, customer references and case studies), without first obtaining approval in writing.
- DISCLAIMER OF WARRANTIES
THE PLATFORM AND ALL SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS,” “AS AVAILABLE” AND “WITH ALL FAULTS.” EACH PARTY, TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXPRESSLY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING: (A) THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT; AND (B) ANY WARRANTY WITH RESPECT TO THE QUALITY, ACCURACY, CURRENCY OR COMPLETENESS OF THE PLATFORM, ANY DATA OR RESULTS OBTAINED THROUGH THE PLATFORM, AND ANY SERVICES PROVIDED UNDER THIS AGREEMENT, OR THAT USE OF THE PLATFORM AND SUCH SERVICES WILL BE ERROR-FREE, UNINTERRUPTED, FREE FROM OTHER FAILURES OR WILL MEET CUSTOMER’S OR END USERS’ REQUIREMENTS. CUSTOMER ACKNOWLEDGES AND AGREES THAT CUSTOMER IS SOLELY RESPONSIBLE FOR VERIFYING THE ACCURACY AND COMPLETENESS OF ALL DATA AND RESULTS SUBMITTED TO OR OBTAINED FROM THE PLATFORM BEFORE TAKING OR OMITTING ANY ACTION BASED UPON SUCH DATA OR RESULTS. CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR BREACH OF THE SERVICE COMMITMENTS DESCRIBED ON THE SITE SHALL BE THE RE-PERFORMANCE OF THE APPLICABLE SERVICES.