Last Modified: June 8, 2023
These Terms of Service (these “Terms”) describe your rights and responsibilities when using the web-based software platform and related services and Modules (the “Services”) offered by Second Platform, Inc. (or its successors or assigns) (“we”, “our”, or “us”). If you are a Customer (defined below), these Terms govern your access and use of our Services. These Terms (or, if applicable, your written agreement with us) together with all documents referenced herein form the “Agreement” between Customer and us.
Please read these Terms carefully to ensure you understand each provision. These Terms contain a jury trial waiver provision and a mandatory arbitration provision.
If you subscribe to, or access or use the Services, create an organization, invite users to that organization, or use or allow use of that organization after being notified of a change to these Terms, you acknowledge your understanding of the then-current Agreement and agree to the Agreement on behalf of Customer. Please make sure you have the necessary authority to enter into the Agreement on behalf of Customer before proceeding.
1.1 Customers, Authorized Users, and Customer Content
“Customer” or “you” is either you, if you are an individual entering into the Agreement on your own behalf, or the organization that you represent in agreeing to the Agreement. If your organization is being set up by someone who is not formally affiliated with a business entity or other organization, Customer is the individual creating the organization. If you signed up for a subscription plan using your corporate email domain or are otherwise entering into a subscription plan on behalf of a business entity or other organization, the business entity or other organization on whose behalf you signed up is the Customer. By signing up on behalf of your business entity or other organization, you represent and warrant that you have all right, power, and authority to bind such entity or organization to the Agreement.
Individuals authorized by Customer to access the Services (each an “Authorized User”) may provide content that consists of software code, documentation, and any other content provided to us or otherwise made available by Customer and its Authorized Users through the Services (“Customer Content”), and Customer will have the sole right and responsibility for managing your use of it. Customer will be solely responsible for all of the acts and omissions of its Authorized Users in relation to the Services and the Agreement. The Services are not intended for and should not be used by anyone under the age of 18. Customer must ensure that all Authorized Users are over 18 years old or represents and warrants that Customer’s parent or legal guardian has given consent to Customer’s assent to this Agreement.
Customer will (i) inform Authorized Users of all Customer policies and practices that are relevant to their use of the Services and of any settings that may impact the processing of Customer Content; and (ii) obtain all rights, permissions or consents from Authorized Users and other Customer personnel that are necessary to grant the rights and licenses in the Agreement and for the lawful use and transmission of Customer Content and the operation of the Services.
A subscription allows Customer and its Authorized Users to access the Services. A subscription may be procured through the Services interface, or in some cases, via an order form entered into between Customer and us (each an “Order Form”). Subscriptions commence when we make them available to Customer and continue for the term specified in the Services or in the Order Form, as applicable (the “Subscription Period”).
1.3 Beta Products
Occasionally, we look for beta testers to help us test our new features. These features will be identified as “beta” or “pre-release,” or words or phrases with similar meanings (each, a “Beta Product”). Beta Products are made available on an “as is,” and “as available” basis and, to the extent permitted under applicable law, without any warranties or contractual commitments we make for other Services.
Customer and its Authorized Users may choose to, or we may invite them to, submit comments or ideas about the Services, including without limitation about how to improve the Services or our products (“Feedback”). By submitting any Feedback, Customer agrees that its disclosure is gratuitous, unsolicited and without restriction and will not place us under any fiduciary or other obligation, and Customer hereby assigns to us all right, title, and interest in and to the Feedback without any additional compensation by us, whether to Customer, the Authorized User, or anyone else, and/or to disclose the Feedback on a non-confidential basis or otherwise to anyone. Customer further acknowledges that, by acceptance of the submission, we do not waive any rights to use similar or related ideas previously known to us, or developed by our personnel, or obtained from sources other than Customer or its Authorized Users.
1.5 Software Modules
In connection with the Services, we may develop, deploy and operate code modules that perform certain code migration functions ( “Modules”). Modules may create code, functions, and other outputs based on the Customer Content that you provide to the Module (such outputs, “Module Outputs”). We do not claim any rights in Module Outputs. You retain ownership of your Customer Content. It is entirely your decision whether to use Module Outputs.
2.1 Our License to Customer
2.1 (a) Ownership of the Services, Modules, Documentation, and Company Data
We own and will continue to own our Services, Modules and Documentation, including all related intellectual property and other proprietary rights related thereto. Further, Customer acknowledges and agrees that we may collect data relating to Customer’s and its Authorized Users’ usage of the Services, including but not limited to codebase size in bytes and high level languages and frameworks used (“Usage Data”) and collect, analyze, and use data derived from Customer Content that has been aggregated and/or anonymized such that it does not identify Customer or any identifiable individual person (“Derivative Data” and, collectively with Usage Data, “Company Data”). All Company Data will be owned solely and exclusively by us and, for purposes of clarity, you agree that we may use the Company Data in perpetuity for any purpose permitted by applicable law.
We may, from time to time, make available certain third-party products and services, including but not limited to open source software (“Third-Party Products”) for use in connection with the Services. Such Third-Party Products may be made available under separate or additional terms and conditions, including but not limited to open source licenses, which we will make available to you as necessary.
2.1 (b) Licenses to the Services and Documentation
During the Subscription Period, we grant the Customer a non-exclusive, non-transferable license to access and use, and to permit Authorized Users to access and use the Services, in accordance with the Agreement, for the Customer’s own internal business purposes.
To the extent that we may make downloadable software components available, via app stores or other channels, as part of the Services, During the Subscription Period, we grant to Customer a non-sublicensable, non-transferable, non-exclusive, limited license for Customer and its Authorized Users to use the object code version of these components, but solely as necessary to use the Services. Minor updates, bug fixes, and the like to such downloadable software components will be included under this license for the duration of the subscription.
From time to time we may make available product documentation for the Services (the “Documentation”) via a method of our choosing (e.g., via the Services). During the Subscription Period, we grant to Customer a non-sublicensable, non-transferable, non-exclusive, limited license for Customer and its Authorized Users to use the Documentation to support Customer’s and its Authorized Users’ use of the Services.
All rights and licenses granted herein are subject to you and your Authorized Users’ full compliance with all of the terms and conditions of the Agreement. All rights in the Services and Documentation not expressly granted herein are expressly reserved by us.
2.2 Customer’s Licenses to Us
2.2 (a) Ownership of Customer Content
As between us on the one hand, and Customer and any Authorized Users on the other, Customer (or your licensors) will own all Customer Content.
2.2 (b) License to Customer Content
Subject to the terms and conditions of the Agreement, Customer (for itself and all of its Authorized Users) represents and warrants that it has all rights necessary to grant (including any licenses from third-parties whose content is included in the Customer Content), to us a royalty-free, sublicensable, transferable, perpetual, irrevocable, worldwide, non-exclusive, license to access, use, host, store, reproduce, modify, publish, list information regarding, translate, process, copy, distribute, perform, export, display, and make derivative works of all Customer Content in whole or in part, and in any form, media, or technology, whether now known or hereafter developed, (i) in connection with our provision of the Services, (ii) to provide, improve, enhance, develop, maintain and offer products or services; (iii) to prevent or address service, security, support or technical issues; (iv) as required by law; and (v) as expressly permitted in writing by Customer. Customer represents and warrants that it has secured all rights in and to Customer Content from its Authorized Users or any third parties as may be necessary to grant this license.
Notwithstanding the foregoing, Customer agrees that we may collect, analyze, use and disclose, during or after the Subscription Period, data derived from Customer Content, which is anonymized and/or aggregated in a manner, that makes the identification of Customer or any Authorized User or third party impossible, for any business purpose, including without limitation, to operate, analyze, improve, and market the Services and our other products and services and share such anonymized data with our affiliates and business partners. Customer further agrees that we will have the perpetual right to use, store, transmit, distribute, modify, copy, display, sublicense, and create derivative works of such derived data.
To the extent permitted under applicable law, we take no responsibility and assume no liability for any Customer Content that Customer or any Authorized User or third-party submits, posts, or otherwise makes available through the Services or for the outputs provided by any of our Modules or the Services. As between Customer and us, Customer shall be fully responsible for the Customer Content and the consequences of submitting, posting, or otherwise making it available via the Services, the outputs provided by any of our Modules or the Services.
2.4 Responsibilities for Customer Content
We are not responsible for the content of any Customer Content or the way Customer or its Authorized Users choose to use the Services to store or process any Customer Content. Customer represents and agrees that Customer is solely responsible for (i) providing notices and obtaining consents as legally required from its Authorized Users for the collection, use, processing and transfer of Customer Content in connection with the Services; and (ii) ensuring compliance with all laws in all jurisdictions that may apply to Customer Content provided hereunder, including but not limited to all applicable international, federal, state, provincial and local laws, rules, and regulations relating to data privacy and security. We do not make any representations as to the adequacy of the Service to process your Customer Content or to satisfy any legal or compliance requirements which may apply to your Customer Content, other than as described herein.
2.5 Use of the Services
Customer must comply with the Agreement and ensure that its Authorized Users comply with the Agreement. We may review conduct for compliance purposes, but we have no obligation to do so. If we believe there is a violation of the Agreement that can be remedied by Customer’s removal of certain Customer Content, we will, in most cases, ask Customer to take direct action rather than intervene. However, to the extent legally permissible, we reserve the right to take further appropriate action, when we deem it reasonably appropriate if Customer does not take appropriate action, or if we believe there is a credible risk of harm to us, the Services, Authorized Users, or any third parties.
2.6 Acceptable Use
2.6 (a) Services Restrictions
You agree not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Services or any of our intellectual property in any medium, including without limitation by any automated or non-automated “scraping”; (ii) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Services in a manner that sends more request messages to the servers hosting the Services than a human can reasonably produce in the same period of time by using a conventional on-line web browser; (iii) transmitting spam, chain letters, or other unsolicited email; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Services; (v) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the Services; (vii) collecting or harvesting any personally identifiable information, including account names, from the Services; (viii) using the Services for any commercial solicitation purposes; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (x) attempting to interfere with, compromise the system integrity or security of, or decipher any transmissions to or from, the servers running our Service; (xi) accessing any content on the Services through any technology or means other than those provided or authorized by the Services; (xii) sharing passwords or authentication credentials for our Service, or otherwise circumvent the measures we may use to prevent or restrict access to our Service or enforce limitations on use of our Service; (xiii) using or displaying our Service in competition with us, to develop competing products or services, for benchmarking or competitive analysis of our Service, or otherwise to our detriment or disadvantage; (xiv) using our Service or any of our intellectual property in any manner or for any purpose that violates or promotes the violation of any applicable law, regulation, legal requirement, contractual obligation, or right of any person; or (xv) bypassing the measures we may use to prevent or restrict access to the Services, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Services or the content therein.
2.6 (b) Customer Content Restrictions
You are solely responsible for the content of any Customer Content you submit through the Services. You agree not to submit any Customer Content that: (i) may create a risk of any other loss or damage to any person or property; (ii) seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise; (iv) may constitute or contribute to a crime or tort; (v) contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, obscene, or otherwise objectionable; (vi) contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party’s trade secrets); (vii) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; (viii) contains any information or content that you know is not correct and current; or (ix) to the extent applicable, violates any school or other applicable policy, including those related to cheating or ethics.
You agree that any Customer Content that you submit does not and will not violate third-party rights of any kind, including without limitation any intellectual property rights. To the extent legally permissible, we reserve the right, but are not obligated, to reject and/or remove any Customer Content that we believe, in our sole discretion, violates any of these provisions.
3.1 Payment Terms
For Customers that purchase a subscription to use our Services, fees are specified through your online account — and must be paid in advance. Payment obligations are non-cancelable once incurred subject to your cancellation rights in these Terms. Except as expressly stated in the Agreement, fees paid are non-refundable. For clarity, in the event Customer downgrades any subscriptions or other recurring fees, Customer will remain responsible for any unpaid fees under the paid plan, and Services under the paid plan will be deemed fully performed and delivered upon expiration of the initial Subscription Period. Fees are stated exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”). Customer will be responsible for paying all Taxes associated with its purchases, except for those taxes based on our net income. For more information about the subscriptions offered for the Services, please visit second.dev/pricing
3.2 Billing Policies
If you elect to purchase a subscription to use our Services, or any other paid aspects of the Services, you agree to the pricing communicated to you by us. We may add new services for additional fees and charges, or add or amend fees and charges for existing services, at any time in our sole discretion, by giving you at least thirty (30) calendar days' written notice, such increase to take effect at the beginning of the next billing cycle. Customer may give notice to terminate the Agreement, by giving at least thirty (30) calendar days' written notice to us prior to the next billing date, such notice to expire no later than the end of the then-current billing cycle. The fees will not increase during the notice period; otherwise, any change to such pricing shall become effective in the billing cycle following notice of such change as provided under the Agreement.
3.3 Billing and Cancellation
To use the Services, you must provide one or more current, valid accepted payment card, as may be updated from time to time and which may include payment through your account with a third party (such method, a “Payment Method”). By providing a Payment Method, you agree that we or our Payment Processor (defined below) are authorized to periodically charge the applicable fees in addition to any applicable taxes and service fees on a recurring basis until you cancel your subscription or other such recurring fees. The fees for the Services and any other charges you may incur in connection with your use of the Services, such as taxes and possible transaction fees, will be charged to your Payment Method on the specific payment date indicated on your account. The length of your billing cycle will depend on the type of subscription that you choose when you signed up for the Services. Fees are fully earned upon payment. In some cases, your payment date may change, for example, if your Payment Method has not successfully settled, when you change your subscription plan or if your paid subscription began on a date not contained in a given month. We may authorize your Payment Method in anticipation of service-related charges through various methods, including authorizing it up to one month of service as soon as you register.
3.4 Payment Information
We use a third-party payment processor (“Payment Processor”), currently Stripe, to process payments you make in connection with the Services. We or our Payment Processor will attempt to verify the Payment Method you provide, and may do so by processing an authorization hold, which is standard practice. Please see Payment Processor’s privacy statement available on its website for information on how Payment Processor collects and uses personal information. Payment must be received by Payment Processor before our acceptance of an order, and must use one of the payment methods accepted by the Payment Processor. We do not view or store your full credit card or other Payment Method information. For all payments, Payment Processor will collect your Payment Method details and charge your chosen Payment Method in connection with an order. You acknowledge and agree that we are not responsible for any breaches of credit card or other Payment Method security or privacy.
You represent and warrant that: (i) the account, order, and Payment Method information you supply to us or Payment Processor, as applicable, is true, correct, and complete; (ii) you are duly authorized to use such Payment Method; (iii) you will pay any charges that you incur in connection with the Services, including any applicable taxes; (iv) charges incurred by you will be honored by your Payment Method company; (v) you will pay all charges incurred by you at the posted prices, including all applicable taxes, if any; (vi) you will not allow anyone else to use your subscription; (vii) you will not transfer your subscription or password to anyone else; and (viii) you will report to us any unauthorized or prohibited access or use of your subscription or password.
If any of your account, order, or Payment Method information changes, you agree to promptly update this information, so that we or Payment Processor may complete your transactions and contact you as needed. We are not liable for any unauthorized use of your credit card, debit card, or other Payment Method by a third-party in connection with your use of the Services or your subscription.
EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THESE TERMS, UNLESS REQUIRED BY APPLICABLE LAW, WE DO NOT PROVIDE REFUNDS FOR ANY SUBSCRIPTION OR LOCATIONS; NOR DO WE PROVIDE CREDIT, REFUNDS, OR PRORATED BILLING FOR SUBSCRIPTIONS THAT ARE CANCELLED.
4.1 Agreement Term
As further described below, a free subscription continues until terminated, while a paid subscription has a Subscription Period that may expire or be terminated. The Agreement remains effective until all subscriptions ordered under the Agreement have expired or been terminated or the Agreement itself terminates. Termination of the Agreement will terminate all subscriptions.
Unless otherwise set forth in the Dashboard, (i) all subscriptions automatically renew for additional periods equal to one (1) year or the preceding Subscription Period, whichever is shorter; and (ii) the per-unit pricing during any automatic renewal Subscription Period will be the then-current price communicated to you by us. Either party can give the other notice of non-renewal at least thirty (30) days before the end of a Subscription Period to stop a subscription from automatically renewing.
4.3 Termination for Cause
We or Customer may terminate the Agreement on notice to the other party if the other party materially breaches the Agreement and such breach is not cured within thirty (30) days after the non-breaching party provides notice of the breach. Customer is responsible for its Authorized Users, including for any breaches of the Agreement caused by its Authorized Users. We may terminate the Agreement immediately on notice to Customer if we reasonably believe that the Services are being used by Customer or its Authorized Users in violation of applicable law.
4.4 Termination Without Cause
Customer may terminate its free subscriptions immediately without cause. We may also terminate the Agreement without cause, but we will provide Customer with thirty (30) days prior written notice.
4.5 Effect of Termination
Upon any termination for cause by Customer, we will refund Customer any prepaid fees covering the remainder of the Subscription Period after the effective date of termination. Upon any termination for cause by us, Customer will pay any unpaid fees covering the remainder of the Subscription Period after the effective date of termination. In no event will any termination relieve Customer of the obligation to pay any fees payable to us for the period prior to the effective date of termination.
5.1 U.S. Government Customers
If Customer is a U.S. government or U.S. public entity (or use of the Services is for the U.S. Government), the terms in this section apply.
5.1 (a) Use By or For the U.S. Government. The Services are a “commercial item,” as defined at 48 C.F.R. §2.101, and constitute “commercial computer software” and “commercial computer software documentation,” as used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202 to §227.7204. This commercial computer software and related Documentation is provided to end users for use, by and on behalf of the U.S. Government, with only those rights as are granted to all other end users pursuant to the terms and conditions herein.
5.1 (b) Indemnification, Auto-Renewal, Venue, Legal Fees. The sections in the contract titled “Governing Law,” “Auto-renewal,” “Venue; Waiver of Jury Trial; Fees,” and “Customer’s Indemnification of Us” are hereby waived to the extent they are inconsistent with federal law.
5.1 (c) No Endorsement. We agree that Customer’s seals, trademarks, logos, service marks, trade names, and the fact that Customer has a presence on one of our sites and uses our Services, will not be used by us in such a manner as to state or imply that our products or services are endorsed, sponsored or recommended by Customer or by any other element of the U.S. Government, or are considered by Customer or the U.S. Government to be superior to any other products or services. Except for pages whose design and content is under the control of the Customer, or for links to or promotion of such pages, we agree not to display any Customer or government seals, trademarks, logos, service marks, and trade names on our homepage or elsewhere on one of our hosted sites unless permission to do so has been granted by Customer or by other relevant federal government authority. We may list Customer’s name in a publicly available customer list on a site or elsewhere so long as the name is not displayed in a more prominent fashion than that of any other third party name.
5.2 State or Local Government Customers
If Customer is a state or local government, the terms in this section apply, but only to the extent the Services are being used in an Authorized User’s official capacity as a state or local government official. The sections in the contract titled “Governing Law,” “Venue; Waiver of Jury Trial; Fees,” and “Customer’s Indemnification of Us” will not apply to Customer only to the extent Customer’s jurisdiction’s laws prohibit Customer from accepting the requirements in those sections.
5.3 Healthcare Customers
If Customer is a Covered Entity as defined in the Health Insurance Portability and Accountability Act and related amendments and regulations as updated or replaced (“HIPAA”), unless Customer has entered into a written agreement with us to the contrary, Customer acknowledges that we are not a Business Associate or subcontractor (as defined in HIPAA) and that the Services are not HIPAA compliant. Customer must not submit, collect or use any “personal health information” as defined in 45 CFR §160.103 (“PHI”), with or to the Services. Further, we suggest that Customer advise Authorized Users directly that they should not transmit PHI through the Services. Customer agrees that we have no liability for PHI received from Customer, notwithstanding anything to the contrary herein.
5.4 Education Professional Customers
If Customer is a school or educator in the United States and wants its students, who are over the age of 13, to use the Services, Customer is responsible for complying with the U.S. Family Educational Rights and Privacy Act (“FERPA”) and all other law, rules, and regulations protecting the privacy of student data which may be applicable to Customer. Unless otherwise agreed to in writing, Customer may not submit Customer Content which contains personal information from a student’s educational record, as defined by FERPA. Customer is responsible for obtaining all necessary consents, if applicable, before permitting its users to submit information through the Services.
Customer represents and warrants that it has validly entered into the Agreement and has the legal power to do so. Customer further represents and warrants that it is responsible for the conduct of its Authorized Users and their compliance with the terms of the Agreement. EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, THE SERVICES AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CUSTOMER ACKNOWLEDGES THAT WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; OR THAT OUR SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM YOUR USE OF OUR SERVICE OR ANY DOWNLOAD OF CONTENT THROUGH THE USE OF OUR SERVICE.
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN TYPES OF WARRANTIES, SO THE ABOVE DISCLAIMERS MAY NOT APPLY TO YOU. THE AGREEMENT GRANTS SPECIFIC LEGAL RIGHTS, AND CUSTOMER AND AUTHORIZED USERS MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION. THE FOREGOING DISCLAIMERS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WE OR OUR AFFILIATES, AGENTS, SUPPLIERS OR LICENSORS (OR OUR OR THEIR EMPLOYEES, CONTRACTORS, AGENTS, OFFICERS OR DIRECTORS) AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE LAST EVENT GIVING RISE TO LIABILITY. THE FOREGOING WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER THE “PAYMENT TERMS” SECTION ABOVE.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WE OR OUR AFFILIATES, AGENTS, SUPPLIERS OR LICENSORS (OR OUR OR THEIR EMPLOYEES, CONTRACTORS, AGENTS, OFFICERS OR DIRECTORS) BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATING TO THE USE OF, OR INABILITY TO USE, OUR SERVICE. UNDER NO CIRCUMSTANCES WILL WE BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF OUR SERVICE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
Customer is responsible for all login credentials, including usernames and passwords, for administrator accounts as well the accounts of your Authorized Users. We will not be responsible for any damages, losses or liability to Customer, Authorized Users, or anyone else, if such information is not kept confidential by Customer or its Authorized Users, or if such information is correctly provided by an unauthorized third party logging into and accessing the Services.
The limitations under this “Limitation of Liability” section apply with respect to all legal theories, whether in contract, tort or otherwise, and to the extent permitted by law. The provisions of this “Limitation of Liability” section allocate the risks under the Agreement between the parties, and the parties have relied on these limitations in determining whether to enter into the Agreement and the pricing for the Services.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN TYPES OF DAMAGES, SUCH AS INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. THE AGREEMENT GRANTS SPECIFIC LEGAL RIGHTS, AND CUSTOMER AND AUTHORIZED USERS MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION. THE FOREGOING DISCLAIMERS AND LIMITATIONS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
Customer agrees to defend, indemnify and hold harmless us and our affiliates, licensors, and suppliers, and our and their respective employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) Customer’s and any Authorized User’s use of and access to the Services, including any Customer Content or other content transmitted or received by Customer or any Authorized User; (ii) your violation of any term of the Agreement, including without limitation any breach of Customer’s representations and warranties above; (iii) Customer’s or any Authorized User’s violation of any third-party right, including without limitation any right of privacy or intellectual property rights; (iv) Customer’s or any Authorized User’s violation of any applicable law, rule or regulation; (v) Customer Content or any content that is submitted via Customer’s or any Authorized User’s account, including without limitation misleading, false, or inaccurate information; (vi) Customer’s or any Authorized User’s gross negligence, fraud, or willful misconduct; or (vii) any other party’s access and use of the Services with Customer’s or any Authorized User’s unique username, password or other appropriate security code (provided that such access and use was not our fault).
We may disclose “Confidential Information” to you in connection with the Agreement, which is anything that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure including all non-public business, product, technology and marketing information. If something is labeled “Confidential,” that’s a clear indicator to you that the material is confidential. Notwithstanding the above, Confidential Information does not include information that (i) is or becomes generally available to the public without breach of any obligation owed to us; (ii) was known to you prior to its disclosure without breach of any obligation owed to us; (iii) is received from a third party without breach of any obligation owed to us; or (iv) was independently developed by you.
9.2 Protection and Use of Confidential Information
You will (i) take at least reasonable measures to prevent the unauthorized disclosure or use of Confidential Information, and limit access to those employees, affiliates and contractors who need to know such information in connection with the Agreement; and (ii) not use or disclose any of our Confidential Information for any purpose outside the scope of the Agreement. Nothing above will you from sharing Confidential Information with financial and legal advisors; provided, however, that the advisors are bound to confidentiality obligations at least as restrictive as those in the Agreement.
9.3 Compelled Access or Disclosure
You may access or disclose Confidential Information of Company if it is required by law; provided, however, that you will give us prior notice of the compelled access or disclosure (to the extent legally permitted) and reasonable assistance, at our cost, if we wish to contest the access or disclosure. If you are compelled by law to access or disclose our Confidential Information, we will reimburse you for your reasonable cost of compiling and providing access to such Confidential Information as well as the reasonable cost for any support provided in connection with us seeking a protective order or confidential treatment for the Confidential Information to be produced.
You understand and acknowledge that our Service may be subject to export control laws and regulations. You agree to comply with all applicable export and re-export control and trade and economic sanctions laws, including the Export Administration Regulations maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC), and the International Traffic in Arms Regulations maintained by the U.S. State Department. Neither you, nor any person to which you make our Service available or that is acting on your behalf, or, if you are an organization, any of your subsidiaries, or any of your or their directors, officers or employees, or any person owning 50% or more of your equity securities or other equivalent voting interests, is (a) a person on the List of Specially Designated Nationals and Blocked Persons or any other list of sanctioned persons administered by OFAC or any other governmental entity, or (b) a national or resident of, or a segment of the government of, any country or territory for which the United States maintains trade and economic sanctions or embargoes.
You may not publicly use our company name, logo, or other trademarks for any purpose without the our prior written consent. However, we may identify you as a Customer in our promotional materials.
11.2 Third Party Products, Links, and Information
The Services may integrate with, or contain, third party products, services, materials, or information, or links thereto that are not owned or controlled by us (“Third Party Materials”). We do not endorse or assume any responsibility for any such Third Party Materials. If Customer or any Authorized User accesses any third party website or service, it does so at its own risk, and Customer acknowledges and agrees that the Agreement does not apply to Customer or any Authorized User’s use of such sites or services. Customer expressly relieves us from any and all liability arising from its or its Authorized User’s use of any Third Party Materials.
ALL OR SOME PORTIONS OF THE SERVICE, INCLUDING THE DOWNLOADABLE SOFTWARE, MAY PROVIDE LINKS TO OR INCORPORATE THIRD PARTY SOFTWARE SUBJECT TO ADDITIONAL AND/OR SEPARATE TERMS AND CONDITIONS, INCLUDING BUT NOT LIMITED TO OPEN-SOURCE SOFTWARE LICENSES AND OTHER THIRD-PARTY SOFTWARE LICENSE TERMS AND CONDITIONS (“THIRD-PARTY COMPONENTS”). TO THE EXTENT ANY THIRD-PARTY COMPONENT MAY BE OFFERED UNDER AN OPEN-SOURCE SOFTWARE LICENSE, WE WILL MAKE THAT LICENSE AVAILABLE TO YOU. IF THERE IS A CONFLICT BETWEEN THE TERMS AND CONDITIONS APPLICABLE TO ANY SUCH THIRD-PARTY COMPONENTS AND THIS AGREEMENT, THE THIRD-PARTY COMPONENTS TERMS AND CONDITIONS SHALL CONTROL. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, ALL THIRD-PARTY COMPONENTS ARE MADE AVAILABLE ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND.
11.3 Force Majeure
Neither us nor Customer will be liable by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of a party, which may include denial-of-service attacks, a failure by a third party hosting provider or utility provider, strikes, shortages, riots, fires, acts of God, war, terrorism, and governmental action.
11.4 Relationship of the Parties; No Third-Party Beneficiaries
The parties are independent contractors. The Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. There are no third party beneficiaries to the Agreement; a person who is not a party to the Agreement may not enforce any of its terms under any applicable law.
11.5 Email Communications
Except as otherwise set forth herein, all notices under the Agreement will be by email, although we may instead choose to provide notice to Customer through the Services. Notices to us must be sent to email@example.com. Notices will be deemed to have been duly given (i) the business day after it is sent, in the case of notices through email; and (ii) the same day, in the case of notices through the Services.
We may change these Terms and the other components of the Agreement in accordance with this Section. If we make a material change to the Agreement, we will provide Customer with reasonable notice prior to the change taking effect, either by emailing the email address associated with Customer’s account or by messaging Customer through the Services. Customer can review the most current version of the Terms at any time by visiting this page and by visiting the most current versions of the other pages that are referenced in the Agreement. The materially revised Agreement will become effective on the date set forth in our notice, and all other changes will become effective upon posting of the change. If Customer (or any Authorized User) accesses or uses the Services after the effective date, that use will constitute Customer’s acceptance of any revised terms and conditions.
No failure or delay by either party in exercising any right under the Agreement will constitute a waiver of that right. No waiver under the Agreement will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver.
The Agreement will be enforced to the fullest extent permitted under applicable law. If any provision of the Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of the Agreement will remain in effect.
Neither party may assign or delegate any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, we may assign the Agreement in its entirety, without consent of Customer, to a corporate affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any purported assignment in violation of this section is void. Subject to the foregoing, the Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
11.10 Governing Law
The Agreement, and any disputes arising out of or related hereto, will be governed exclusively by the internal laws of the State of Delaware, without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods. The parties acknowledge that the Agreement evidences a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law of the Agreement, any arbitration conducted hereunder shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16).
11.11 Venue; Waiver of Jury Trial; Fees
The state and federal courts located in San Francisco County, California will have exclusive jurisdiction to adjudicate any dispute arising out of or relating to the Agreement or its formation, interpretation or enforcement, including any appeal of an arbitration award or for trial court proceedings if the arbitration provision below is found to be unenforceable. Each party hereby consents and submits to the exclusive jurisdiction of such courts. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to the Agreement. In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover its reasonable costs and attorney’s fees.
Read this section carefully because it requires the parties to arbitrate their disputes and limits the manner in which you may seek relief from us. For any dispute with us, you agree to first contact us at firstname.lastname@example.org and attempt to resolve the dispute informally. If we have not been able to resolve a dispute within sixty (60) days of your first contact, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to the Agreement, or the breach or alleged breach thereof by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. The arbitration will be conducted in San Francisco County, California, unless we agree otherwise. If you are using the Service for commercial purposes, each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using the Services for non-commercial purposes: (i) JAMS may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from JAMS; (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing us from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, intellectual property rights or other proprietary rights.
NOTHING IN THIS SECTION WILL BE DEEMED AS: PREVENTING US FROM SEEKING INJUNCTIVE OR OTHER EQUITABLE RELIEF FROM THE COURTS AS NECESSARY TO PREVENT THE ACTUAL OR THREATENED INFRINGEMENT, MISAPPROPRIATION, OR VIOLATION OF OUR DATA, INTELLECTUAL PROPERTY RIGHTS OR OTHER PROPRIETARY RIGHTS.
11.13 Entire Agreement
The Agreement, including these Terms and all referenced pages constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Without limiting the foregoing, the Agreement supersedes the terms of any online agreement electronically accepted by Customer or any Authorized Users. However, to the extent of any conflict or inconsistency between the provisions in these Terms and any other documents or pages referenced in these Terms, the following order of precedence will apply: (i) these Terms; and (iii) any other documents or pages referenced in these Terms. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order, vendor onboarding process or web portal, or any other Customer order documentation will be incorporated into or form any part of the Agreement, and all such terms or conditions will be null and void.
Any section of the Agreement that, by its terms or its nature, should survive the termination or expiration of the Agreement shall so survive, including but not limited to Sections 1.4, 2.2, 2.3, 3, 4.5, and 6 through 11.
11.15 Contacting Us
Please also feel free to contact us if you have any questions about the Terms or any other part of the Agreement. You may contact us at email@example.com or at our mailing address set forth in Section 5 above.
If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.