These Terms of Service are part of the Services Agreement entered into by and between Company and Customer. Customer’s use of and Company’s provision of the Services are governed by these Terms of Service. All capitalized words used but not defined herein shall have the meaning given them in the Order.
EACH PARTY ACKNOWLEDGES THAT IT HAS READ THESE TERMS OF SERVICE AND THE DOCUMENTS REFERENCED HEREIN (ALL OF WHICH BY THIS REFERENCE ARE INCORPORATED HEREIN AND MADE A PART HEREOF), UNDERSTANDS IT, AND AGREES TO BE BOUND BY THEM.
Company reserves the right to modify these Terms of Service and any policies affecting the System or Services, including any schedule referenced herein, at any time upon written notice to Customer. If we make any changes, we will notify you by revising the version and its effective date and adding a statement to the log-in screen or sending you an email notification, as applicable. Customer’s continued access to the Services after any such modification and notice shall be conclusively deemed its acceptance of all such modifications. Customer’s only right with respect to any dissatisfaction with any modifications made pursuant to this provision is to terminate Customer’s subscription in accordance with these Terms of Service. Notwithstanding the foregoing, Company may not revise the terms of the Order except as provided therein or by written agreement signed by a duly authorized representative of each Party.
1. DEFINITIONS. The following capitalized terms will have the following meanings whenever used in this Agreement.
1.1. “Customer Data” means data in electronic form input or collected through the System by or from Customer, including Customer’s account registration data.
1.2. “Documentation” means Company’s written documentation for the System.
1.3. “Order” is the document executed by Customer to which these Terms of Services are incorporated by reference.
1.5. “System” means Company’s dashboard software in object code operating on Company’s hardware platform as an integrated system that may be accessible via the internet during the Term, including all modifications, updates, translations, enhancements and other Derivative Works (defined by 17 U.S.C. §101) thereof, together the Documentation. The term “System” excludes Customer Data.
1.6. “Term” is the period during which Customer may obtain the Services, subject to Section 10.1 below.
1.7. “User” means any person who uses the System as Customer or on Customer’s behalf or through Customer’s account or passwords, whether authorized or not.
2. THE SYSTEM.
2.1. Use of the System. During the Term, Company will use commercially reasonable efforts to provide Customer the Services pursuant to: (a) the terms of any outstanding Order; and (b) these Terms of Service, including the terms of any policy and agreement referenced herein hereto, as the same may be updated from time to time as provided herein. Company authorizes Customer’s Users, and no others, to access and use System during the Term.
2.2. Documentation: Customer may reproduce and use the Documentation solely as necessary to support Users’ use of the System.
2.3. System Revisions. Company may revise System features and functions or the SLTs at any time. If any such revision to the System materially reduces features or functionality provided pursuant to an Order, Customer may within 30 days of notice of the revision terminate such Order, without cause, or terminate this Agreement without cause if such Order is the only one outstanding, unless Company and Customer mutually agree otherwise and in writing. If any such revision to the SLTs materially reduces service levels provided pursuant to an outstanding Order, the revisions will not go into effect with respect to such Order until the start of the next-following renewal of the Initial Term of Service after Company posts the revision and so informs Customer.
3. TECHNICAL SUPPORT.
3.1. Company will provide the technical support and remedies for any failure of the System as provided in this Section 3. Such remedies are Customer’s sole remedy for any failure of the System, and Customer recognizes and agrees that if no remedy is stated herein for a given failure of the System, there is no remedy for such failure.
3.2. Services include Technical Support during the period for which the all Fees due Company are paid. “Technical Support” means Company’s commercially reasonable efforts to: develop and deploy updates, enhancements, modifications, bug fixes, or other similar changes to the System which Company deems necessary or advisable with respect to enhancing or improving the features and functionality of the System; and resolve bugs, errors, problems, other disruptions in System operations, and Errors (as defined below), including those identified and communicated by Customer.
3.3. Company will provide Technical Support to Customer via telephone and electronic mail on weekdays (excluding federal holidays) (“Business Days”).
3.4. Customer may request help by calling (888) 619-9586 or any time by emailing firstname.lastname@example.org.
3.5. Company will use commercially reasonable efforts to (i) respond to your requests for Technical Support by the next Business Day and (ii) correct inoperability of System functionality (an “Error”) caused by Company’s configuration or programming error. The time required to resolve an Error depends on its complexity and the availability of sufficient detail from Customer to reproduce it.
4. CUSTOMER DATA & PRIVACY.
4.3. Risk of Exposure. Customer recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the System, Customer assumes such risks. Company offers no representation, warranty, or guarantee that Customer Data will not be exposed or disclosed through errors or the actions of third parties.
4.4. Data Accuracy. Company will have no responsibility or liability for the accuracy of data uploaded to the System by Customer, including without limitation Customer Data and any other data uploaded by Users.
4.5. Customer Data. Company takes seriously the security of Customer Data and, thus, has taken measures Company deems reasonable and necessary to safeguard the Customer Data in the System against loss or unauthorized exposure. Company will return all Customer Data and destroy all other whole or partials copies thereof in its possession promptly following the 30th day after termination of the Services.
4.6. Excluded Data. Customer represents and warrants that Customer Data does not and will not include, and Customer has not and will not upload or transmit to Company’s computers or other media, any data or material that is illegal or for an illegal purpose or otherwise is deemed objectionable as reasonably determined by Company.
5. CUSTOMER’S RESPONSIBILITIES & RESTRICTIONS.
5.1. Acceptable Use. Customer agrees that it will not: (a) use the System for the direct benefit of any person other than Customer or in any way allow third parties (other than Customer’s Users) to use or exploit the System; (b) provide System passwords or other log-in information to any third party without consent of Company; (c) share non-public System features or content with any third party without consent of Company; (d) access the System in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the System, or to copy any ideas, features, functions or graphics of the System; (e) discover or attempt to discover, or assist or permit any person to discover or attempt to discover, by any means whatsoever the source code (the human-readable form) of any element of Company’s software included in the System; or (f) prepare any derivate works based on the System’s software.
5.2. Unauthorized Access. Both parties will take reasonable steps to prevent unauthorized access to the System, including without limitation by protecting its passwords and other log-in information. Either party will notify the other party immediately of any known or suspected unauthorized use of the System or breach of its security and will use best efforts to stop said breach.
5.3. Compliance with Laws. In its use of the System, both parties will comply with all applicable laws, including without limitation laws governing the protection of personally identifiable information and other laws applicable to the protection of Customer Data.
5.4. Users & System Access. Customer is responsible and liable for: (a) Users’ use of the System, including without limitation unauthorized User conduct and any User conduct that would violate the requirements of this Agreement; and (b) any use of the System through Customer’s account, whether authorized or unauthorized.
6. IP & FEEDBACK.
6.1. IP Rights to the System. Company retains all right, title, and interest in and to the System, including without limitation all software used to provide the System and all graphics, user interfaces, logos, and trademarks reproduced through the System or used by Company. This Agreement does not grant Customer any intellectual property license or rights in or to the System or any of its components or any logos, trademarks, service marks or other designations (whether or not registered) used by Company. Customer recognizes that the System and its components are protected by copyright and other laws.
6.2. Feedback. Company has not agreed to and does not agree to treat as confidential any Feedback (as defined below) Customer or Users provide to Company, and nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict Company’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Customer or the User in question. Notwithstanding the provisions of Article 7 below, Feedback will not be considered Confidential Information, provided information Customer transmits with Feedback or related to Feedback may be considered Confidential Information. (“Feedback” refers to any suggestion or idea for improving or otherwise modifying any of Company’s products or services.)
7. CONFIDENTIAL INFORMATION. “Confidential Information” refers to the following items either party discloses to the other: (a) any document either party marks “Confidential”; (b) any information either party orally designates as “Confidential” at the time of disclosure, provided the disclosing party confirms such designation in writing within 5 business days; (c) the Documentation whether or not marked or designated confidential; and (d) any other nonpublic, sensitive information Customer should reasonably consider a trade secret or otherwise confidential. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in either party’s possession at the time of disclosure; (ii) is independently developed by either party without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of either party’s improper action or inaction; or (iv) is approved for release in writing by either party in accordance with this agreement.
7.1. Nondisclosure. Each party agrees that: it (a) will use Confidential Information for any purpose other than for performing their respective express obligations in these Terms of Service (the “Purpose”); (b) will disclose Confidential Information only to employee’s or contractors whose responsibilities to such party require access thereto in order to facilitate the Purpose and is legally bound to a nondisclosure agreement for the benefit of the disclosing party on terms no less restrictive than those of this Article 7; and (c) will not disclose Confidential Information to any other third party without either party’s prior written consent. Without limiting the generality of the foregoing, the parties will protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Each party will promptly notify the other party of any misuse or misappropriation of Confidential Information that comes to their attention. Notwithstanding the foregoing, either party may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. Each party will give the other party prompt notice of any such legal or governmental demand and reasonably cooperate with the other party in any effort to seek a protective order or otherwise to contest such required disclosure, at their own expense.
7.2. Injunction. The parties agree that breach of this Section 6 would cause the non-breaching party irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, the non-breaching party will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.
7.3. Termination & Return. With respect to each item of Confidential Information, the obligations related to Confidential Information constituting either party’s trade secrets will continue so long as such information remains subject to trade secret protection pursuant to applicable law. Upon termination of this Agreement, the non-disclosing party will return all copies of Confidential Information to the other party or certify, in writing, the destruction thereof.
7.4. Retention of Rights. This Agreement does not transfer ownership of Confidential Information or grant a license thereto. The parties will retain all right, title, and interest in and to all Confidential Information.
7.5. Exception & Immunity. Pursuant to the Defend Trade Secrets Act of 2016, 18 USC Section 1833(b), both parties acknowledge that, notwithstanding the foregoing or any other provision of this Agreement:
(a) Immunity. An individual shall not be held civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that: (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
(b) Use of Trade Secret Information in Anti-Retaliation Lawsuit. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual: (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except pursuant to court order.
8. REPRESENTATIONS & WARRANTIES.
8.1. From Company. Company represents and warrants that it is the owner of the System and of every component thereof, or the recipient of a valid license thereto, and that it has and will maintain the full power and authority to grant the rights granted in this Agreement without the further consent of any third party. Company’s representations and warranties in the preceding sentence do not apply to use of the System in combination with hardware or software not provided by Company. In the event of a breach of the warranty in this Section 8.1, or if in Company’s opinion the System is likely to become the subject of an infringement claim, Company may, at its option and own expense: (a) secure for Customer the right to continue using the System; (b) replace or modify the System to make it non-infringing; or (c) terminate the infringing features of the System and refund to Customer any prepaid fees for such features, in proportion to the portion of the Term remaining after such termination. In conjunction with Customer’s right to terminate for breach where applicable, and NOTWITHSTANDING ANYTHING IN THE AGREEMENT TO THE CONTRARY, THE PRECEDING SENTENCE STATES COMPANY’S SOLE OBLIGATION AND LIABILITY, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, FOR BREACH OF THE WARRANTY IN THIS SECTION 7.1 AND FOR POTENTIAL OR ACTUAL INTELLECTUAL PROPERTY INFRINGEMENT BY THE SYSTEM.
8.2. From Customer. Customer represents and warrants that: (a) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by the Agreement; (b) it has accurately identified itself and it has not provided any inaccurate information about itself to or through the System; and (c) it is a natural person whose age is at least the age of majority under applicable law or is a corporation, limited liability company or another entity authorized to do business pursuant to applicable law.
8.3. In addition, Customer represents and warrants to and agrees with Company that: (i) Customer is solely responsible for all Customer Data that Customer makes available through the System, (ii) Customer is the sole and exclusive owner of all such Customer Data or Customer has all rights, licenses, consents and releases that are necessary to makes such data available through the System, and (iii) neither the Customer Data nor Customer’s making it available through the System will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation, including, but not limited to, the Data Protection Act 1998, and any other applicable federal or state privacy laws. You retain the sole responsibility of your individual compliance with such laws and any other laws to which Customer or the Customer Data is subject.
8.4. Warranty Disclaimers. Except to the extent set forth under Article 3, CUSTOMER ACCEPTS THE SERVICES AND SYSTEM “AS IS” AND AS AVAILABLE, WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (a) COMPANY HAS NO OBLIGATION TO INDEMNIFY OR DEFEND CUSTOMER OR USERS AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY; (b) COMPANY DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM WILL PERFORM WITHOUT INTERRUPTION OR ERROR; AND (c) COMPANY DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT CUSTOMER DATA WILL REMAIN PRIVATE OR SECURE.
9. INDEMNIFICATION. Customer will defend, indemnify, and hold harmless Company and the Company Representatives (as defined below) against any “Indemnified Claim,” meaning any third party claim, suit, or proceeding arising out of or related to Customer’s alleged or actual use of, misuse of, or failure to use the System, including without limitation: (a) claims by Users or by Customer’s employees, as well as by Customer’s own customers; (b) claims related to unauthorized disclosure or exposure of personally identifiable information or other private information, including Customer Data, caused by Customer, its employees, subcontractors, agents and/or Registered Users; (c) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content, including Excluded Data, uploaded to the System through Customer’s account, including without limitation by Customer Data; and (d) claims that use of the System through Customer’s account harasses, defames, or defrauds a third party. Indemnified Claims include, without limitation, claims arising out of or related to Customer’s negligence. Customer’s obligations set forth in this Section 9 include retention and payment of attorneys and payment of court costs, as well as settlement at Customer’s expense and payment of judgments. Company will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations. (“Company Representatives” mean Company’s officers, directors, managers, members, subcontractors, agents, successors, and assigns and those of any affiliate of the Company.)
10. LIMITATION OF LIABILITY.
10.1. Exclusion of Consequential Damages. IN NO EVENT WILL COMPANY BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THE AGREEMENT INCLUDING WITHOUT LIMITATION THE SYSTEM OR SERVICES.
10.2. Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS ARTICLE 10 APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF COMPANY IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Article 10, Company’s liability will be limited to the maximum extent permissible, and in any case the Company’s monetary liability under the Agreement to Customer and others, in the aggregate, shall not exceed the Fees paid by Customer for the Service. For the avoidance of doubt, Company’s liability limits and other rights set forth in this Article 10 apply likewise to Company Representatives.
11. Term & Termination.
11.1. Term. The Services commence on the Effective Date (as defined in the Order) and continue until terminated as provided herein.
11.2. Termination without Cause. Customer may terminate the Agreement at any time without Cause upon written notice.
11.3. Termination for Cause. Either party may terminate the Agreement for the other’s material breach of the Agreement by written notice. Such notice will specify in detail the nature of the breach and will be effective 30 days after such notice, or more if specified in the notice, unless the other party cures the breach within such time.
11.4. Effects of Termination. Upon termination of this Agreement, all rights of Customer to access and use the System and all Services will cease, and Customer shall delete, destroy, or return all copies of the Documentation in its possession or control, except that the following provisions will survive any termination of the Agreement: (a) any payment obligations of Customer accruing before termination or expiration; and (b) the terms of Sections 6, 6, 8.4 and 9 through 12 inclusive.
12.1. Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf.
12.2. Notices. Company may send notices pursuant to this Agreement to Customer’s email contact points stated in the Order, and such notices will be deemed received 24 hours after they are sent. Customer may send notices pursuant to this Agreement to ___________________ with a copy to email@example.com (for technical support), or firstname.lastname@example.org (for all other support) and such notices will be deemed received on the date they are sent.
12.3. Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party’s reasonable control.
12.4. Assignment & Successors. Customer may not assign this Agreement or any of its rights or obligations hereunder without Company’s express written consent which shall not be unreasonably withheld. Except to the extent forbidden in this Section 12.4, this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and permitted assigns.
12.5. Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
12.6. No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
12.7. Choice of Law & Jurisdiction: This Agreement and all claims arising out of or related to this Agreement will be governed solely by the internal laws of the State of California, including without limitation applicable federal law, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. This Section 12.7 governs all claims arising out of or related to this Agreement, including without limitation tort claims.
12.9. Construction. The parties agree that the terms of the Agreement result from negotiations between them. This Agreement will not be construed in favor of or against either party by reason of authorship.
12.10. Compliance with U.S. Export Laws. Exports of any products, materials and data exchanged under the Agreement (if any) may be subject to the export laws of the United States including the United States International Traffic in Arms Regulations (the “ITAR” as defined in 22 CFR 120-130), the Export Administration Regulations (as defined in 15 CFR 730-774), the Export Administration Act, the Trading with the Enemy Act, and the International Emergency Economic Powers Act. Customer agrees to not export, re-export, disclose or transfer any such materials or data directly or indirectly without compliance with these and any other applicable laws and regulations. Customer recognizes that providing, in any manner, information constituting “technology” and/or “technical data” (as defined at 15 CFR 772; 22 CFR 120.10) to a foreign person, as defined in the ITAR at 22 CFR 120.16, is an “export” that may require prior authorization and licensing from the United States Government. Customer agrees and warrants that no regulated product, materials or technical data exchanged between the parties (if any) shall be accessed or provided, in any manner, to foreign persons in the United States or abroad without prior, written authorization as required by the United States Government.
12.11. Digital Signatures. Any signature (including any electronic symbol or process attached to, or associated with, a contract or other record and adopted by a person with the intent to sign, authenticate or accept such contract or record) to this Agreement or to any other certificate, agreement or document related to this Agreement, and any contract formation or record-keeping through electronic means shall have the same legal validity and enforce-ability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable law, and the parties hereby waive any objection to the contrary.