Last Modified: Thursday November 29, 2018
This Agreement is a legally binding contract between Elastic Projects, Inc. (“Elastic Projects”, “we”, “us”, or “our”) and you, the person accessing and using Services (referred to throughout the Agreement as “Customer,” “you” “your”, “yours” or “yourself”). By clicking to accept the Agreement, you acknowledge that you have read and understood the Agreement and agree to be bound by its terms. If you do not agree to be bound by the terms of the Agreement, you must not click that you accept or access or use the Services.
Important information about the “Customer”
Some customers use our Services in connection with work for their employer, customers may also use our Services for their own, personal purposes. Thus, “Customer” (or “you” or “your”) may be either the business entity (or other organization that you represent) or you as an individual. If you are 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 (e.g. to complete projects for your employer), the business entity or other organization on whose behalf you signed up is the Customer. By signing up on behalf of a 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. If you signed up for a subscription to the Services and are not formally affiliated with a business entity or other organization (e.g. to use the Services for your own, personal purposes unaffiliated with your work for your employer), you, as an individual, are the Customer.
You also understand and agree that if you sign up to use the Services in response to an invite you receive to join another party’s organization, your use of the Services will be governed by the terms of that party’s agreement with us and the terms of only the first 4 paragraphs of these Customer Terms. For example, you may be invited by another party to collaborate with such party on a project they are working on within the Services. When you work on such project within the Services, all materials, information, data, and other content you provide through the Services will be owned by such party under the terms of such party’s agreement with us. However, you represent and warrant to us that you have the right to grant such ownership rights to such party.
- Subscriptions: Specific details regarding your subscription to the Services (such as cost, duration, and license limitations) will be selected or identified when you complete the online sign-up process on our website (the “Sign-up Process”). Once you sign-up for a free account or purchase a subscription to the Services through the Sign-up Process, we will provide you with the necessary information to access the Services and install the related software directly onto your computer hard drive. When you complete the Sign-up Process, you will be able to select the subscription plan that you wish to purchase or sign-up to use a free version of the Services. Your subscription will start on the date we make the Services available to you and continue for the period you select either during the Sign-up Process or at a later time in your Account Settings (“Subscription Period”). After you complete the Sign-up Process, you can access and make certain changes to the details of your subscription, e.g. upgrade or downgrade your subscription plan or add or remove Authorized Users, through the settings options in the accounts of Authorized Users you give administrative permissions to within the Services (“Account Settings”).
- Support. Elastic Projects will use commercially reasonable efforts to provide basic technical support for the Services to Customer via email (“Support Services”).
- Authorized Users: Individuals authorized by Customer to access and use the Services (each an “Authorized User”) may upload, submit, post, create, share, or otherwise make available through the Services: (a) videos, images, music, comments, questions, documents, spreadsheets, design files, and any other content or materials submitted, posted, or otherwise made available by you and, if applicable, your Authorized Users (“User Content”), including the names, voice, and/or likeness contained in the User Content; and (b) information relating to identified or identifiable natural persons (e.g. for the purposes of logging into the Services) (“Personal Data”). Collectively, User Content and Personal Data will be “Customer Information”. Customer will have the sole right and responsibility for managing its and its Authorized Users’ access to the Services and use of the Customer Information. For example, Customer may provision or deprovision access to the Services, enable or disable third party integrations, manage permissions of Authorized Users (e.g. giving certain Authorized Users administrative privileges), manage retention and export settings, transfer, assign, or consolidate organizations, and so on. Customer will also (i) inform Authorized Users of all of Your own policies and practices that are relevant to the Authorized Users’ use of the Services and of any settings within the Services that may impact the processing of Customer Information; and (ii) obtain all rights, permissions and consents from Authorized Users and other Customer personnel or contractors that are necessary (x) to grant the rights and licenses set forth in the Agreement, and (y) for the lawful use and transmission of Customer Information and operation of the Services. Customer is responsible for all Authorized Users’ login credentials, regardless of whether such Authorized User is an administrator or otherwise. Accordingly, you are responsible for all resulting damages, losses, or liability if usernames and passwords are not kept confidential by you or your Authorized Users, including for actions taken on the Services by unauthorized third-parties logging into and accessing the Services through Authorized Users’ accounts.
- Early Release and Beta Products: Occasionally, we look for customers to help us test new services or new features of our existing services. If we wish for you to test early release or beta features/services, will either request whether you would like to test such early release or beta features/services in writing (email shall suffice) or these features will simply be identified within the Services as “beta” or “pre-release,” or “early-release” (or words or phrases with similar meanings) (each, an “Early Release Product”) and you (i.e., your Authorized Users that you give account management capabilities to) will have the option to either use them or refrain from using them. If you choose to use an Early Release Product, you understand and agree that Early Release Products are made available on an “as is,” and “as available” basis and, to the extent permitted under applicable law, without any warranties, indemnities, or contractual commitments of any kind.
Use of the Services and Restrictions
- License to Use and Access: For the duration of the subscription, Elastic Projects grants to 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 and solely for your own internal business purposes. To the extent that we may make software components available, via app stores or other channels, as part of the Services, 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 and in accordance with the Agreement. There are no implied licenses granted to the Services, all of our rights not expressly granted by the license in this Section are retained by us.
- Acceptable Use Policy: Customer agrees, and will ensure that all Authorized Users agree, to comply with Elastic Project’s acceptable use policy, the current version of which is located at https://www.abstract.com/legal/acceptable-use-policy/ (“Acceptable Use Policy”); which may be updated by us from time to time by posting an updated version to the foregoing URL.
- Restrictions on Customer Information: Customer is responsible for the content of any Customer Information and the way Customer and its Authorized Users choose to use the Services to store or process any Customer Information. Customer is therefore also solely responsible for ensuring compliance with all applicable laws that may apply to Customer Information, including but not limited to privacy laws. Unless otherwise agreed to in writing by both parties, Customer may not submit any Customer Information that includes a social security number, passport number, driver’s license number, or similar identifier, credit card or debit card number, or any other information which may be subject to specific data privacy and security laws including, but not limited to, the Gramm-Leach-Bliley Act (GLBA), the Health Insurance Portability and Accountability Act (HIPAA), the Health Information Technology for Economic and Clinical Health Act (HiTECH), the Family Educational Rights and Privacy Act of 1974 (FERPA), or the Children’s Online Privacy Protection Act (COPPA), or any other data which is considered to be sensitive. The Services are also not intended for and should not be used by anyone under the age of 13. Customer must ensure that all Authorized Users are over 13 years old. We do not make any representations as to the adequacy of the Service to process your Customer Information or to satisfy any legal or compliance requirements which may apply to your Customer Information, other than as described herein.
- License Restrictions: Customer agrees that it will not, and will not allow third parties or Authorized Users to, directly or indirectly (a) modify, translate, copy or create derivative works based on the Services, (b) reverse assemble, reverse compile, reverse engineer, decompile or otherwise attempt to discover the object code, source code, non-public APIs or underlying ideas or algorithms of the Services, except as and only to the extent this restriction is prohibited by law, (c) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Services available to any third party, (d) remove or obscure any copyright, trademark or other proprietary notices, legends or Elastic Projects branding contained in or on the Services, (e) use the Services in any way that violates any applicable federal, state, local or international law or regulation, (f) attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Dashboard, or (g) use or access the Services to build or support and/or assist a third party in building or supporting products or services competitive to the Services. Customer also agrees to comply, and will ensure that its Authorized Users comply, with any usage limitations of the Services agreed to during the Sign-up Process and/or as stated in your Account Settings.
- Responsibility: Customer must comply with the Agreement and is fully responsible for Authorized Users’ compliance with the Agreement. To the extent permitted under applicable law, we take no responsibility and assume no liability for any Customer Information that Customer or any Authorized User or third-party submits, posts, or otherwise makes available through the Services. Customer acknowledges and agrees that we are acting only as a passive conduit for Your and its Authorized Users’ online distribution of such Customer Information, except that we may review all conduct of Authorized Users in the Services, including the content of Customer Information, for the purpose of checking compliance with the terms of the Agreement, but we have no obligation to do so. If we believe there is a violation of the Agreement that can be remedied by Your removal of certain Customer Information, we will, in most cases, ask Customer to take direct action rather than intervene. However, we reserve the right to take further action (including suspending your use of or access to the Services or removing certain Customer Information), when we deem it reasonably appropriate if Customer does not take suitable action itself, or if we believe Customer is violating applicable law or there is a credible risk of harm to us, the Services, Authorized Users, or any of our other customers. For example, if we reasonably believe that your Customer Information violates the Acceptable Use Policy or otherwise infringes on the intellectual property rights of any third party, we reserve the right to remove such Customer Information from the Services and/or suspend your access to the Services.
- Fees: Customer will pay for access to and use of the Services as explained during the Sign-up Process and/or as stated in your Account Settings(“Fees”). All Fees must be paid in U.S. dollars. Payment obligations are non-cancelable and, except as expressly stated in these Customer Terms, non-refundable. We may modify our Fees or introduce new fees in our sole discretion; Customer understands that revised or new fees may be required by changes in our business or offerings. Any new or revised fees will only become effective on the renewal of your Subscription Period. If you agree to other payment terms with us, you will pay for your subscription to the Services according to the payment terms we (both parties) agree upon. Fees are based on the number of Authorized User subscriptions you purchase during the Sign-up Process and/or through your Account Settings and not on actual use.
- Payment: You agree that you will pay us for your access to and use of the Services as explained during the Sign-up Process and/or as stated in your Account Settings. All information that you provide in connection with a purchase or transaction or other monetary transaction within the Services must be accurate, complete, and current. All Fees are due in advance of using or accessing the Services. All payments must be made via credit card and you authorize us to charge the Fees (and any other charges you may incur in connection with the Services (such as taxes)) to your provided payment instrument in on a periodic basis in accordance with these Customer Terms, as explained during the Sign-up Process and/or in your Account Settings. Customer is responsible for keeping its payment instrument and all associated information (such as the expiration date of a credit card) current at all times.
- Taxes: Fees are 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. Customer will be responsible for paying all such taxes associated with its purchases, except for those taxes based on our net income.
- Overdue Fees: If you fail to pay any Fees, we may suspend your access to the Services pending payment of such overdue Fees. If you believe that we have charged your payment instrument incorrectly, you must contact us no later than ten (10) days after the date of payment, in order to receive an adjustment or credit. If a payment is not successfully settled, due to expiration, insufficient funds, or otherwise, and you do not promptly update your payment instrument information, (a) we reserve the right to suspend your access to the Services until such time as payment is successfully settled, including past due payments, if any, and (b) you authorize us to continue charging your payment instrument, as it may be updated. If your use of the Services exceeds the capacities or limits selected during the Sign-up Process or your Account Settings or otherwise requires the payment of additional fees, you authorize Elastic Projects to charge such additional fees to your payment instrument.
- Adding and Removing Authorized Users: Authorized Users that are given administrative permission by Customer may add Authorized Users at any time through the Services. Upon adding an Authorized User(s), we will charge your payment instrument for such Authorized User(s) at our then-current price for Authorized Users at the pro-rated rate for the remainder of the then-current Subscription Period. You may decrease the number of Authorized Users at any time through the Services. If you decrease the number of Authorized Users before the Subscription Period ends you will receive a credit, which will be reflected in your Account Settings, for the pro-rated amount of the Fees for those Authorized Users that would have been due for the remainder of the Subscription Period. Any credit you receive will be applied automatically to your next purchase through the Services.
- New Services: During the Subscription Period we may offer new services or modules that are not included in the subscription plan you purchased; you may choose to purchase new services or modules through the Services as they become available but will not be required to do so.
Term and Termination
- Agreement Term: This Agreement will start when you accept it through the Sign-up Process and terminate when your Subscription Period ends.
- Auto-Renewal: Your subscription to the Services will automatically renew for additional periods equal to one (1) year or a period equal to your Subscription Period, whichever is shorter. Either party may choose not to renew your subscription to the Services. If you do not wish to renew your subscription, you must select the appropriate non-renewal options in your Account Settings. If we choose not to renew your subscription, we will notify you and terminate your access to the Services at the end of your then-current Subscription Period.
- Termination: You may choose to downgrade or cancel your subscription to the Services at any time through your Account Settings. Either party may also terminate your subscription to the Services on written 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 written notice of such breach. No refunds will be given for cancellation of your subscription during the Subscription Period. No refunds will be given if your subscription to the Services is downgraded, cancelled, or otherwise terminated (regardless of the reason).
- Effect of Termination: If these Customer Terms terminate for any reason you authorize us to charge your payment instrument or bill you for any unpaid Fees covering the remainder of the then-current Subscription Period. In no event will any termination relieve Customer of the obligation to pay any Fees payable to us. Except for the purpose of exporting Customer Information as described below, upon any termination of the Agreement, all licenses granted hereunder will immediately terminate and you will no longer have the right to access or use the Services. Following termination or expiration of Your subscription, we may, upon request provide you with access to the Services for the sole purpose of exporting your Customer Information (except for comments made through the Services by Authorized Users) for a period of ninety (90) days. After ninety (90) day’s following termination of the Agreement we have no obligation to maintain or provide any Customer Information and will thereafter, unless legally prohibited, delete all Customer Information in our systems or otherwise in our possession or under our control.
- Survival: Sections 2, 3, 4, 5, 6.2, 7, 8, 9, and 12 will survive any termination or expiration of the Agreement.
- Ownership of Elastic Projects Materials: Elastic Projects owns the Services and its technical documentation related to the Services (collectively the “Elastic Projects Materials”). Elastic Projects retains all right, title and interest (including, without limitation, all patent, copyright, trademarks, trade secret and other intellectual property rights) in and to the Elastic Projects Materials, all related and underlying technology and any updates, enhancements, upgrades, modifications, patches, workarounds, and fixes thereto and all derivative works of or modifications to any of the foregoing. There are no implied licenses under the Agreement and any rights not expressly set forth in the Agreement are hereby expressly reserved by Elastic Projects.
- Customer’s License to Us
- Ownership of Customer Information: As between Elastic Projects and Customer, Customer will own all Customer Information.
- License to Personal Data: Customer (for itself and all of its Authorized Users) grants us a worldwide, non-exclusive, limited term license to access, use, process, copy, distribute, perform, export and display Personal Data, only as reasonably necessary (a) to provide and maintain the Services (including the transfer of Personal Data to us); (b) to prevent or address service, security, support or technical issues; (c) as required by law; and (d) as expressly permitted in writing by Customer.
- License to User Content: By submitting, posting, storing, or otherwise making User Content available through the Services, Customer grants us, and represents and warrants that it has all rights necessary to grant (including without limitation any necessary consents and authorizations from individual persons identified in the User Content and licenses from third-parties whose content is included in the User Content), a royalty-free, sublicensable (as necessary to Subprocessors as described in Section 10.4 below), non-transferable (except permitted under Section 12.9), non-exclusive, worldwide license to use, host, store, reproduce, modify (e.g. to make sure your User Content displays properly through our Service), publish, list information regarding, translate, distribute (to the Authorized Users), perform (for Authorized Users), display (to Authorized Users), and make derivative works of the User Content in any form, media, or technology, whether now known or hereafter developed, solely for use in connection with our provision of the Services.
- Usage Data: As we operate the Services, we collect data pertaining to Authorized Users’ interaction with the Services, including information about the performance of the Services and measures of the operation of the Services (“Usage Data”). Notwithstanding anything else to the contrary herein: provided that the Usage Data is aggregated and anonymized, and no personal identifying information of the Customer is revealed to any third party, the parties agree that Elastic Projects is free to use the Usage Data in any manner. Elastic Projects owns all right, title, and interest in and to such Usage Data. For clarity, this section does not give Elastic Projects the right to identify Customer as the source of any Usage Data. Notwithstanding anything to the contrary in the Agreement, we shall not be prohibited or enjoined at any time by Customer from utilizing any “skills or knowledge of a general nature” acquired during the course of performing the Services specified under the Agreement. For purposes of the Agreement, “skills or knowledge of a general nature” includes, without limitation, anything that might reasonably be learned or acquired in connection with similar work performed for another client.
- Feedback. You may from time to time provide suggestions, comments or other feedback with respect to the Services (“Feedback”). Elastic Projects may want to incorporate this Feedback into its Services and this clause provides us with the necessary license to do so. You hereby grant to us and our assigns a royalty-free, worldwide, perpetual, irrevocable, fully transferable and sublicenseable right and license to use, disclose, reproduce, modify, create derivative works from, distribute, display and otherwise distribute and exploit any Feedback as we see fit, entirely without obligation or restriction of any kind, except that Elastic Projects will not identify you as the provider of such Feedback.
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. Some jurisdictions do not allow the disclaimer of certain types of warranties, so the above disclaimers may not apply to you. this 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.
Limitation of Liability
Elastic Projects will not be liable with respect to any cause related to or arising out of this agreement, whether in an action based on a contract, tort (including negligence and strict liability) or any other legal theory, however arising, for (a) indirect, special, incidental or consequential damages, (b) damages based on lost revenues or profits, loss of business or goodwill shall, loss or corruption of data or breaches in system security or (c) any damages that, in the aggregate, exceed the amounts paid or payable to elastic projects within the twelve (12) months immediately preceding the event that gave rise to the liability. These limitations shall apply whether or not a party has been advised of the possibility of such damages and notwithstanding any failure of essential purpose of any limited remedy.
Customer agrees to defend, indemnify, and hold harmless Elastic Projects and its officers, directors, and employees from and against any claim, proceeding, or other action arising out of (a) the allegation that the Customer Information infringes any party’s intellectual property rights, (b) Customer or any Authorized User’s violation of any applicable law, rule, regulation, or third-party right, including without limitation any right of privacy, (c) Customer or any Authorized User’s gross negligence, fraud, or willful misconduct; or (d) any third party’s access and use of the Services with Customer or any Authorized User’s unique username, password or other appropriate security code (provided that such access and use was not our fault).
Confidentiality and Data Security
- Definition: Each party (“Disclosing Party”) may disclose “Confidential Information” to the other party (“Receiving Party”) 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 our pricing and subscription plans related to the Services, as well as non-public business, product, technology and marketing information. Confidential Information of Customer includes Customer Information. If something is labeled “Confidential,” that’s a clear indicator to the Receiving Party that the material is confidential. Notwithstanding the above, Confidential Information does not include information that (a) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party without use or reference to the Disclosing Party’s Confidential Information.
- Protection and Use of Confidential Information: The Receiving Party will (a) protect the Disclosing Party’s Confidential Information using the same degree of care used to protect its own confidential or proprietary information of like importance, but in any case using no less than a reasonable degree of care, (b) limit access to the Confidential Information to those employees, affiliates, Subprocessors (as described in Section 10.4 below), agents, consultants, legal advisors, financial advisors, and contractors (“Representatives”) who need to know such information in connection with the Agreement and who are bound by confidentiality and non-use obligations just as protective of the Disclosing Party’s Confidential Information as the terms of the Agreement; (c) except as expressly set forth herein, will not disclose any of Disclosing Party’s Confidential Information to any third parties without the Disclosing Party’s prior written consent; and (d) will not use the Disclosing Party’s Confidential Information for any purpose other than to fulfill its obligations under the Agreement. Nothing above will prevent either party 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.
- Compelled Access or Disclosure: The Receiving Party may access or disclose Confidential Information of the Disclosing Party if it is required by law; provided, however, that the Receiving Party gives the Disclosing Party prior notice of the compelled access or disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the access or disclosure. If the Receiving Party is compelled by law to access or disclose the Disclosing Party’s Confidential Information, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing access to such Confidential Information as well as the reasonable cost for any support provided in connection with the Disclosing Party seeking a protective order or confidential treatment for the Confidential Information to be produced.
- Applicability of Our Data Processing Addendum: We will process Personal Data only under the instruction and on your behalf; we will not process your Personal Data for other purposes. You acknowledge and agree that processing based on the provisions in the Agreement and in our technical product documentation qualify as your instructions. Personal Data includes “personal data” as that term is defined under the European General Data Protection Regulation (GDPR), and/or “personal information”, “personally identifiable information”, or such other similar term under applicable data privacy laws that applies to the person from which such data emanates. If you are established in, and any of the Personal Data that you submit to us contains the Personal Data of other individuals in, the European Economic Area and Switzerland, or if you are contractually obliged to comply with the GDPR, we will process any such Personal Data that you submit to us when you use the Services in accordance with the Data Processing Addendum, the current version of which is located at https://www.abstract.com/legal/data-processing-addendum/. If there is a conflict between the Agreement and the Data Processing Addendum, the Data Processing Addendum shall prevail. We reserve the right to make changes to our Data Processing Addendum (e.g. to address changes in applicable law). However, we agree that if we make changes to our Data Processing Addendum that will materially decrease our security and privacy obligations contained therein, we will notify you of such changes before they go into effect.
- Our Transfer of Personal Data: We may transfer, store, and otherwise process Customer Information (including Personal Data) in databases and with Subprocessors located in the United States. If you choose to use the Services or allow Authorized Users to use the Services from within any region that has laws governing data collection and use that differ from United States law (including the European Economic Area), you agree that you have obtained the rights and consents necessary for us to transfer, store, and otherwise process such Customer Information to and in the United States or other locations that may not have the same data protection framework as the country from which you or your Authorized Users may be using the Services. When we transfer Personal Data to the United States or our other data facilities, we will protect it as described in the Agreement and, if applicable, the Data Processing Addendum.
- Subprocessors: The parties understand and agree that Elastic Projects uses certain third-party service providers to support the delivery of the Services that may store and process Personal Data about Authorized Users (e.g. Amazon Web Services) (each a “Subprocessor”). We currently use the following Subprocessors to support our delivery of the Services: https://www.abstract.com/help/legal-security/sub-processors/. Prior to engaging any Subprocessor, we perform diligence to evaluate their privacy, security and confidentiality practices, and we execute an agreement implementing applicable obligations to ensure, if applicable, that such Subprocessor is storing and processing Personal Data in conformance with our privacy and security obligations under the Agreement. As our business grows and evolves, the Subprocessors we engage may also change. We will notify you in writing of any additional or replacement Subprocessors, along with posting such updates to the URL above (or a successor site), before we appoint such Subprocessor. Following the appointment of a Subprocessor, you have the right to object to such Subprocessor to us in writing.
- Safeguards: The protection of Personal Data is important to us. Accordingly, we will maintain reasonable administrative, physical, and technical safeguards designed to protect Personal Data. Those safeguards will include measures for preventing unauthorized access, use, modification, deletion and disclosure of Personal Data by our personnel. In the event we have a reasonable, good faith belief that an unauthorized party has accessed Personal Data, we will promptly notify Customer and will use reasonable efforts to cooperate with Your investigation of the incident. If such incident triggers any third-party notice requirements, Customer (not us) shall be solely responsible for the timing, content, cost and method of any such notice and compliance with applicable laws. Customer (not us) bears sole responsibility for adequate security, protection and backup of Personal Data when in Your or its representatives’ or agents’ possession or control. We are not responsible, and Customer is fully responsible, for what Your Authorized Users do with Personal Data. We are custodians of Personal Data.
Additional Terms for Mobile Applications
The following applies to any Services acquired from the Apple App Store (“Apple-Sourced Software”): Customer acknowledges and agree that the Agreement is solely between Customer and us, not Apple, Inc. (“Apple”) and that Apple has no responsibility for the Apple-Sourced Software or content thereof. Your use of the Apple-Sourced Software must comply with the App Store Terms of Service. Customer acknowledges that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apple-Sourced Software. In the event of any failure of the Apple-Sourced Software to conform to any applicable warranty, Customer may notify Apple, and Apple will refund the purchase price for the Apple-Sourced Software (if any); to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Sourced Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by the Agreement and any law applicable to us as provider of the software. Customer acknowledges that Apple is not responsible for addressing any claims by Customer or any third party relating to the Apple-Sourced Software or Your possession and/or use of the Apple-Sourced Software, including, but not limited to: (a) product liability claims; (b) any claim that the Apple- Sourced Software fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation; and all such claims are governed solely by the Agreement and any law applicable to us as provider of the software. Customer acknowledges that, in the event of any third-party claim that the Apple-Sourced Software or your possession and use of that Apple-Sourced Software infringes that third party’s intellectual property rights, we, and not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Agreement. Customer and we acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Agreement as relates to your license of the Apple-Sourced Software, and that, upon your acceptance of the terms and conditions of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement as relates to Your license of the Apple-Sourced Software against Customer as a third- party beneficiary thereof.
- Publicity: Customer grants us the right to use Your company name and logo as a reference for marketing or promotional purposes on our website and in other public or private communications with our existing or potential customers, subject to Your standard trademark usage guidelines as provided to us from time-to-time.
- 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.
- Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
- No Third-Party Beneficiaries. 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.
- Email Communications. All notices under the Agreement will be provided 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, except for legal notices, such as notices of termination, which must be sent to firstname.lastname@example.org. Notices will be deemed to have been duly given (a) the business day after it is sent, in the case of notices through email; and (b) the same day, in the case of notices through the Services.
- Amendment and Waivers. We may change these Customer Terms and the other components of the Agreement except the terms of your subscription to the Services from time to time. If we make a material change to the Agreement, we will provide you with reasonable notice prior to the change taking effect, either by emailing the email address associated with your account or by messaging you through the Services. You can review the most current version of the Customer 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 you (or any Authorized User) accesses or uses the Service after the effective date, that use will constitute Customer’s acceptance of any revised terms and conditions.
- Severability. This 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.
- Assignment. Neither party will 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, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of our 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.
- Governing Law and Venue. This Agreement, and any disputes arising out of or related hereto, will be governed exclusively by the internal laws of the State of California, 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). 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.
- Arbitration. For any dispute arising under the Agreement, the parties agree to 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.
- Entire Agreement. The Agreement, if applicable, 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 the Agreement and any other documents or pages referenced in the Agreement, the following order of precedence will apply: (1) the terms of your subscription (that you select during the Sign-up Process and that are stated in your Account Settings), (2) the Agreement and (3) any other documents or pages referenced in the Agreement. 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.
Additional Terms for Particular Types of Customers
- 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.
- 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.
- Waiver of Certain Terms. The sections in the Agreement titled “Governing Law and Venue,” “Auto-renewal,” and “Indemnification” are hereby waived to the extent they are inconsistent with federal law.
- No Endorsement. We agree that Your seals, trademarks, logos, service marks, trade names, and the fact that Customer 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 your 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.
- 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 “Indemnification” will not apply to Customer only to the extent Your jurisdiction’s laws prohibit Customer from accepting the requirements in those sections.
- 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.
- 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 Information 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.
- 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.