Terms of Service
Effective March 22, 2018
This Terms of Service Agreement ("Agreement") is entered into by and between the Company Technologies, Inc. ("Company") and the entity or person placing an order for or accessing the Service ("Customer" or "you"). If you are registering for an Company account or using the Service on behalf of an entity or other organization, you are agreeing to this Agreement for that entity or organization and representing to Company that you have the authority to bind that entity or organization to the terms of this Agreement (and, in which case, the terms "you", "your" and "Customer" will refer to that entity or organization).
The Effective Date ("Effective Date") of this Agreement is the date which is the earlier of (a) Customer’s initial access to the Service through any online provisioning, registration or order process or (b) the effective date of the first Order Form referencing this Agreement. This Agreement will govern Customer’s initial purchase on the Effective Date as well as any future purchases made by Customer that reference this Agreement.
Subject to the terms of this Agreement, Company grants to Customer a limited, non-exclusive, non-transferable right to access and use the Service, and allow its Authorized Users to access and use the Service, solely for Customer’s internal business purposes and not for resale or further distribution. Customer’s right to use the Service is limited by all terms and conditions herein. Customer shall be responsible for its Authorized Users in compliance with Customer’s obligations under the terms of the Agreement. Except for this license granted to Customer, Company and its licensors retain all right, title and interest in and to the Service, including all related intellectual property rights. The Service is protected by applicable intellectual property laws, including U.S. copyright law and international treaties. Authorized User ("Authorized User") means any individual provided with access to the Service by Customer. Order Form ("Order Form") means an order form or other similar document (including any online form) specifying the Service to be provided hereunder and fees to be paid by Customer therefor. If there is a conflict between this Agreement and the Order Form, then the Order Form shall govern.
Company may revise this Agreement from time to time. If Company does revise this Agreement, the revised Agreement will supersede prior versions. Unless Company says otherwise, revisions will be effective upon the effective date indicated at the top of this Agreement. Company will use reasonable efforts to provide you advance notice of any material revisions. This notice will be provided via the account portal and/or via an email to the email address Company has on file. For other revisions, Company will update the effective date of this Agreement at the top of the page. Your continued access or use of the Service constitutes your acceptance of any revisions. If you don’t agree to the revisions, you should stop using the Service and Company is not obligated to provide you with the Service. If you have a subscription to any Service, any change to this Agreement will be effective with respect to such Service upon the renewal of your subscription.
3. Fees and Payments
All fees for Paid Plans are as set forth in the applicable Order Form and shall be paid by Customer in accordance with the payment terms set forth in the Order Form. If no payment terms are specified in the Order Form, then the following default terms apply: (i) for monthly paid plans, Customer will pay all fees at the end of the month and (ii) for annual paid plans, Customer will pay all fees within thirty (30) days of invoice. All fees are non-refundable. Company reserves the right to increase the rates specified in the Order Form upon any renewal of a Subscription Term. Customer is required to pay any sales, value-added, withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of Company. Any late payments shall be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less.
If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than fifteen (15) days after receipt of invoice in order to receive an adjustment or credit. Inquiries should be directed to Company's accounting department, email@example.com. Company shall respond to Customer within three (3) business days after receiving such inquires.
If your use of the Service exceeds the amounts prepaid by you or if you fail to pay any amounts due by you, Company may suspend your account without prior notice to you. Company will have no liability in connection with any suspension of your account pursuant to this section.
4. Confidential Information
Each party agrees that all code, inventions, know-how, business, technical and financial information it obtains from the other party constitute the confidential property ("Confidential Information"), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the other party to be confidential. Each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of this Agreement and it will not disclose, or permit to be disclosed, the same directly or indirectly, to any third party without the other party’s prior written consent, except as otherwise permitted hereunder. However, either party may disclose Confidential Information (a) to its employees, officers, directors, attorneys, auditors, financial advisors and other representatives who have a need to know and are legally bound to keep such information confidential by confidentiality obligations consistent with those of this Agreement; and (b) as required by law (in which case the receiving party will provide the disclosing party with prior written notification thereof, will provide the disclosing party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law. Neither party will disclose the terms of this Agreement to any third party, except that either party may confidentially disclose such terms to actual or potential lenders, investors or acquirers. Each party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. In the event of actual or threatened breach of the provisions of this section, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement.
5. Customer Obligations
Customer is solely responsible for the accuracy, content and legality of all Customer Data ("Customer Data") and agrees to comply with all applicable Laws in its use of the Service. Customer represents and warrants to Company that Customer has all necessary rights, consents and permissions to collect, share and use Customer Data as contemplated in this Agreement, without violation or infringement of (i) any third party intellectual property, publicity, privacy or other rights, (ii) any Laws, or (iii) any terms of service, privacy policies or other agreement governing the customer properties.
Customer specifically agrees not to use the Service to collect, store, process or transmit any Sensitive Personal Information ("Sensitive Personal Information", defined as any personal or sensitive information subject to regulation or protection. Customer acknowledges that Company is not a Business Associate or subcontractor (as those terms are defined in HIPAA) or a payment card processor and that the Service is neither HIPAA nor PCI DSS compliant. Company shall have no liability under this Agreement for Sensitive Personal Information, notwithstanding anything to the contrary herein.
6. Term and Termination
This Agreement is effective as of the Effective Date and will continue until terminated.
Either party may terminate this Agreement (including all related Order Forms) if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay fees or comply with applicable scope of use restrictions) within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).
Upon any expiration or termination of this Agreement, Customer shall immediately cease any and all use of and access to the Service (including any and all related Company technology), cease distributing any Company code installed on customer properties, and delete (or, at Company’s request, return) any and all copies of the documentation, any Company passwords or access codes and any other Company Confidential Information in its possession. Customer acknowledges that following termination it shall have no further access to any Customer Data in the Service, and that Company may delete any such data as may have been stored by Company at any time.
Customer will defend, indemnify and hold harmless Company, its suppliers and licensors, and its respective subsidiaries, affiliates, officers, agents, employees, representatives, and assigns, from any costs, damages, expenses, and liability caused by Customer’s use of the Service, Customer’s violation of this Agreement, or Customer’s violation of any rights of a third party through use of the Service.
Company agrees to use commercially reasonable technical and organizational measures designed to prevent unauthorized access, use, alteration or disclosure of the Service or Customer Data. However, Company shall have no responsibility for errors in transmission, unauthorized third-party access or other causes beyond Company's control.
9. Warranty Disclaimer
THE SERVICE AND ALL RELATED SERVICES ARE PROVIDED "AS IS". NEITHER COMPANY NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. COMPANY DOES NOT WARRANT THAT CUSTOMER’S USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES COMPANY WARRANT THAT IT WILL REVIEW THE CUSTOMER DATA FOR ACCURACY OR THAT IT WILL PRESERVE OR MAINTAIN THE CUSTOMER DATA WITHOUT LOSS. COMPANY SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF COMPANY. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.
10. Limitation of Liability
COMPANY AND ITS SUPPLIERS AND LICENSORS WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES), RESULTING FROM CUSTOMER’S USE OF THE SERVICE OR COMPANY’S PROVISION OF ANY OTHER SERVICES. UNDER NO CIRCUMSTANCES WILL THE TOTAL LIABILITY OF COMPANY AND ITS SUPPLIERS AND LICENSORS OF ALL KINDS ARISING OUT OF OR RELATED TO CUSTOMER’S USE OF THE SERVICE (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS) OR COMPANY’S PROVISION OF ANY OTHER SERVICES, REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, NEGLIGENCE OR OTHERWISE, EXCEED THE AMOUNTS, IF ANY, THAT CUSTOMER HAS PAID TO COMPANY FOR CUSTOMER’S USE OF THE SERVICE FOR THE TWELVE (12) MONTH PERIOD PRIOR TO THE CLAIM.
11. Publicity & Promotion
Customer agrees to allow Company, and hereby does provide Company with the necessary rights and licenses, to use Customer’s name and logo on the Company website, blog and/or in marketing materials, including case studies and as press references, to identify Customer as a customer of Company. Customer agrees to act as a customer reference for the Service and Customer agrees to respond reasonably to all such reference contacts. Customer agrees to participate in reasonable marketing activities that promote the benefits of the Service to other potential customers.
12. Agreement to Arbitrate
If you have any issues with the Service or Company, you must try to resolve the issue first through Company customer support. If the parties are not able to the dispute through Company customer support, Customer and Company agree to resolve any dispute arising under this Agreement or in relation to the Service by binding arbitration in San Francisco, California, or in another location that both parties agree to. It also applies even after you have stopped using your Company account or have deleted it.
13. General Terms
This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement without the advance written consent of the other party, except that Company may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of Company’s assets or voting securities. Any attempt to transfer or assign this Agreement will be null and void.
If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
This Agreement shall be governed by the laws of the State of California and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to the subject matter hereof shall be the state and United States federal courts located in San Francisco, California and both parties hereby submit to the personal jurisdiction of such courts.
No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Customer will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect.
This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. Customer acknowledges that the Service is an on-line, subscription-based product, and that in order to provide improved customer experience Company may make changes to the Service, and Company will update the applicable Documentation accordingly.
Company may use the services of subcontractors and permit them to exercise the rights granted to Company in order to provide the Service under this Agreement. These subcontractors may include, for example, Company’s hosting, infrastructure and CDN providers. Company remains responsible for compliance of any such subcontractor with the terms of this Agreement and the overall performance of the Service as required under this Agreement.
The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.