Macrostax Team Terms & Conditions
This Agreement governs Customer’s use of the [Macrostax Team Application] (including all related documentation, the “Application”) through the Macrostax Team web dashboard and the use of the Macrostax Application by Customer’s Authorized Users as described below (collectively, the “Services”). The Application is provided to Customer as a “Software-as-a-Service” (i.e., SAAS), and not sold.
The Application is designed to provide Customer a data center and dashboard, accessible via the Application, to assist Customer in reviewing and organizing personal nutrition goals for Customer’s Authorized Users (sometimes referred to on the Macrostax website as “Active Clients”) and tracking such Authorized User’s personal progress toward those goals. This Agreement governs Customer’s, and Authorized Users, access to and use of the Application. Please read this Agreement carefully before using the Application as this is a legally binding contract between Customer and Macrostax.
BY [CLICKING THE “AGREE” BUTTON/USING THE APPLICATION], CUSTOMER (A) ACKNOWLEDGES THAT CUSTOMER HAS READ AND UNDERSTANDS THIS AGREEMENT; (B) REPRESENT THAT CUSTOMER IS 18 YEARS OF AGE OR OLDER; AND (C) ACCEPTS THIS AGREEMENT AND AGREE THAT CUSTOMER IS LEGALLY BOUND BY ITS TERMS. IF CUSTOMER DOES NOT AGREE TO THESE TERMS, DO NOT DOWNLOAD, INSTALL, OR USE THE APPLICATION.
- Access and Use. Subject to and conditioned on Customer’s and its Authorized Users’ compliance with the terms and conditions of this Agreement, Provider hereby grants Customer a non-exclusive, non-transferable (except in compliance with 13.6) right to access and use the Services during the term of this Agreement, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Customer’s internal use and ordinary course of business. The total number of Authorized Users will not exceed the number set forth in the tier of Services for which Customer has subscribed, except as expressly agreed to in writing by the parties and subject to any appropriate adjustment of the fees payable hereunder.
- Tier definition. The number of Authorized Users that corresponds to the plan tier ranges is defined as the number of Authorized Users that have signed up for the Macrostax Application after being invited by the Customer via the Application. An Authorized User that has been invited by the Customer but has not signed up for the Macrostax Application does not count toward the number of Authorized Users allowed in the Customer’s selected tier.
- Documentation License. Provider hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with 13.6) license to use the Documentation during the term of this Agreement solely for Customer’s internal business purposes in connection with its use of the Services.
- Service and System Control. Except as otherwise expressly provided in this Agreement, as between the parties:
- Provider has and will retain sole control over the method, means, location, operation, provision, maintenance, hosting, and management of the Services and Provider Materials; and
- Customer has and will retain sole responsibility over the operation, maintenance, and management of, and all access to and use of, the Customer Systems, and sole responsibility for all access to and use of the Provider Materials by any Person by or through the Customer Systems or any other means controlled by Customer or any Authorized User, including any: (i) information, instructions, or materials provided by any of them to the Services or Provider; (ii) results obtained from any use of the Services or Provider Materials; and (iii) conclusions, decisions, or actions based on such use.
- Reservation of Rights. Nothing in this Agreement grants any right, title, or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Services, Provider Materials, or Third-Party Materials, whether expressly, by implication, estoppel, or otherwise. All right, title, and interest in and to the Services, the Provider Materials, and the Third-Party Materials are and will remain with Provider and the respective rights holders in the Third-Party Materials.
- Service Management Admin. Customer shall, throughout the term of this Agreement, maintain within its organization an administer to serve as such party’s primary point of contact for day-to-day communications, consultation, and decision-making regarding this Agreement and to receive and use administrative log-in credentials to use the Application. Such service manager shall be responsible for providing all day-to-day administration, management consents and approvals on behalf of such party related to use of the Application or otherwise under this Agreement. If Customer’s service manager ceases to be employed by Customer or Customer otherwise wishes to replace its service manager, such party shall promptly name a new service manager by written notice to the other party.
- Changes. Provider reserves the right, in its sole discretion, to make any changes to the Services and Provider Materials that it deems necessary or useful, including but not limited to: (a) maintain or enhance: (i) the quality or delivery of Provider’s services to its customers; (ii) the competitive strength of or market for Provider’s services; or (iii) the Services’ cost efficiency or performance; or (b) to comply with applicable Law.
- Subcontractors. Provider may from time to time in its discretion engage third parties to perform Services (each, a “Subcontractor”), including but not limited to a third-party data storage provider.
- Suspension or Termination of Services. Provider may, directly or indirectly, and by use of a Provider Disabling Device or any other lawful means, suspend, terminate, or otherwise deny Customer’s, any Authorized User’s, or any other Person’s access to or use of all or any part of the Services or Provider Materials, without incurring any resulting obligation or liability, if: (a) Provider receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Provider to do so; or (b) Provider believes, in its good faith and reasonable discretion, that: (i) Customer or any Authorized User has failed to comply with any material term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any material instruction or requirement of the Specifications; (ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with any of the Services; or (iii) this Agreement expires or is terminated. This Section 2.8 does not limit any of Provider’s other rights or remedies, whether at law, in equity, or under this Agreement.
- Enhancements; Maintenance. Any and all improvements, upgrades, new releases, new versions, and other similar enhancements to the Services, that Provider provides at no additional charge to its other similarly situated customers, shall be included as part of the Services. Provider shall provide bug fixes, corrections, modifications, enhancements, upgrades, and new releases to the Services to ensure: (a) the functionality of the Services is available to Authorized Users; and The fees for the Services shall be inclusive of such fees for regular maintenance.
- Third-Party Materials. The Application may display, include, or make available Third-Party Materials. Customer acknowledges and agrees that Provider is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Provider does not assume and will not have any liability or responsibility to Customer or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to Customer, and Customer access and use them entirely at Customer’s own risk and subject to such third parties’ terms and conditions.
- Use Restrictions; Service Usage and Data Storage.
- Use Restrictions. Customer shall not, and shall not permit any other Person (including but not limited to any Authorized User) to, access or use the Services or Provider Materials except as expressly permitted by this Agreement and, in the case of Third-Party Materials, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, except as this Agreement expressly permits:
- copy, modify, or create derivative works or improvements of the Services or Provider Materials;
- rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Services or Provider Materials to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service;
- reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Services or Provider Materials, in whole or in part;
- bypass or breach any security device or protection used by the Services or Provider Materials or access or use the Services or Provider Materials other than by an Authorized User through the use of his or her own then valid Access Credentials;
- input, upload, transmit, or otherwise provide to or through the Services or Provider Systems, any information or materials that are unlawful or injurious, or contain, transmit, or activate any Harmful Code;
- damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Services, Provider Systems, or Provider’s provision of services to any third party, in whole or in part;
- remove, delete, alter, or obscure any trademarks, Specifications, Documentation, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any Services or Provider Materials, including any copy thereof;
- access or use the Services or Provider Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction, or disclosure of the data of any other Provider customer), or that violates any applicable Law;
- access or use the Services or Provider Materials for purposes of competitive analysis of the Services or Provider Materials, the development, provision, or use of a competing software service or product or any other purpose that is to the Provider’s detriment or commercial disadvantage;
- otherwise access or use the Services or Provider Materials beyond the scope of the authorization granted under this Section 3.1;
- Use Restrictions. Customer shall not, and shall not permit any other Person (including but not limited to any Authorized User) to, access or use the Services or Provider Materials except as expressly permitted by this Agreement and, in the case of Third-Party Materials, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, except as this Agreement expressly permits:
- Customer Obligations.
- Customer Systems and Cooperation. Customer shall at all times during the term of this Agreement: (a) set up, maintain, and operate in good repair and in accordance with the Specifications all Customer Systems on or through which the Services are accessed or used; (b) provide Provider Personnel with such access to Customer’s premises and Customer Systems as is necessary for Provider to perform the Services in accordance with the Availability Requirement and Specifications; and (c) provide all cooperation and assistance as Provider may reasonably request to enable Provider to exercise its rights and perform its obligations under and in connection with this Agreement.
- Effect of Customer Failure or Delay. Provider is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement (each, a “Customer Failure”).
- Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity prohibited by 3.1, Customer shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and Provider Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify Provider of any such actual or threatened activity.
- Authorized Users.
- Customer is responsible and liable for all uses of the Services resulting from access by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Services, and shall cause Authorized Users to comply with such provisions.
- Proper Use; Export Controls. Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Provider’s standard published policies then in effect and all applicable laws and regulations. Customer may not remove or export from the United States or allow the export or re-export of the Services, software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the software and documentation are “commercial items” and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
- Customer Data; Security.
- User Generated Content.
- The Application may provide interfaces and tools for Authorized Users to submit content, including sharing, requests or comments to generate content and make it available to other users and/or to the Provider at such Authorized User’s sole discretion. “User Content” means any content any Authorized Users make available through the Application or Services, or otherwise provided to the Provider or other users, whether online or offline and whether or not solicited by the Provider, or to the Provider or its affiliates through Authorized use of the Application and Services or otherwise.
- For clarity, Authorized Users, and not Provider or Customer, retain all of their ownership rights in their User Content. However, by submitting User Content through the Services, such Authorized Users hereby grant the Provider a worldwide, non-exclusive, royalty-free, sub-licensable and transferable license to use, amend, reproduce, distribute, prepare derivative works of, display, publish, adapt, make available online or electronically transmit, and perform the User Content in connection with the Service and the Provider’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Application (and derivative works thereof) in any media formats and through any media channels. Authorized Users also hereby grant each other user of the Application a non-exclusive license to access their User Content through the Application, and to use, reproduce, distribute, display, publish, make available online or electronically transmit, and perform such User Content as permitted through the functionality of the Service and under this Agreement. The above licenses granted by Authorized Users in User Content they submit to the Application cannot be terminated or deleted (save for any personal information submitted, which will be subject to local privacy law). Authorized Users understand and agree, however, that the Provider may continue to distribute, or perform, server copies of their User Content relating to templates and documents. The above licenses granted by Authorized Users in user comments they submit are perpetual and irrevocable.
- If Customer or any Authorized User provides the Provider with any feedback or suggestions about the Application, or any the Provider products or services, the Provider is free to use the feedback or suggestions however it chooses, without any obligation to account to Customer or such Authorized Users.
- The Provider has no obligation to pre-screen any content. Customers and all Authorized Users use all User Content and interact with other users at their own risk. Without limiting the foregoing, the Provider reserves the right in its sole discretion to pre-screen, refuse, or remove any content. The Provider shall have the right to remove any content that violates this Agreement or is otherwise objectionable (in the Provider’s sole and absolute discretion).
- Risk of Exposure. Provider will employ data privacy and security measures, and maintain a data breach plan, in accordance with required and/or relevant industry standards. Customer recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the Services, Customer assumes such risks. Provider offers no representation, warranty, or guarantee that Customer Data or User Content will not be exposed or disclosed through errors or the actions of third parties.
- Data Accuracy. Provider will have no responsibility or liability for the accuracy of data uploaded to the Services by Customer, including without limitation Customer Data or User Content, User Data and any other data uploaded by Authorized Users.
- Data Deletion. Provider may permanently erase Customer Data , User Content and User Data if Customer’s account is delinquent, suspended, or terminated for 30 days or more.
- Aggregate & Anonymized Data. Notwithstanding the provisions herein to the contrary, Provider may use, reproduce, sell, publicize, or otherwise exploit Aggregate Data in any way, in its sole discretion. (“Aggregate Data” refers to Customer Data, User Content and User Data with the following removed: personally identifiable information and the names and addresses of Customer and any of its users or customers.)
- Customer Control and Responsibility. Customer has and will retain sole responsibility for: (a) all Customer Data and User Content, including its content and use; (b) all information, instructions, and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (c) Customer’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services (“Customer Systems”); (d) the security and use of Customer’s and its Authorized Users’ Access Credentials; and (e) all access to and use of the Services and Provider Materials directly or indirectly by or through the Customer Systems or its or its Authorized Users’ Access Credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.
- Access and Security. Customer shall employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Services; and (b) control the content and use of Customer Data and User Content, including the uploading or other provision of Customer Data or User Content for Processing by the Services.
- User Generated Content.
- Fees and Payment.
- Fees. Customer shall pay Provider the fees as set forth in the Application, which shall be dependent on the plan tier of the Application for which Customer subscribes.
- Payment. Customer agrees to pay all fees or charges to Customer’s account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable.
- Payment Authorization. Customer agrees to the following:
- when Customer provide payment information to the Provider or to one of its third-party payment processors, Customer represents to the Provider that Customer is the authorized user of the card, PIN, key or account associated with that payment, and
- Customer authorizes the Provider to charge Customer’s credit card or to process Customer’s payment with the chosen third-party payment processor for any subscription, product or other fees incurred by Customer.
- Customer agrees to all terms and conditions of use of the Provider’s third-party payment processors, including but not limited to those of Stripe, available here: https://stripe.com/us/legal
For subscriptions subject to automatic renewal after an agreed usage period, where recurring payments are made in exchange for continued use (“Recurring Payment Subscriptions”), by continuing to use the Recurring Payment Subscription Customer agree and reaffirm that the Provider is authorized to process Customer’s payment with any applicable third-party payment processor, for any applicable recurring payment amounts. If Customer has purchased any Recurring Payment Subscriptions, Customer agrees to notify the Provider’s third-party payment processor promptly of any changes to Customer’s credit card account number, its expiration date and/or Customer’s billing address, or payment account number, and Customer agrees to notify the Provider’s third-party payment processor promptly if Customer’s credit card or other payment account expires or is cancelled for any reason.
The Customer may upgrade or downgrade their subscription at any time. However a downgrade does not entitle Customer to any refund of previously paid amounts (provided, however, that the Provider may from time-to-time issue refunds to users if the Provider determines the circumstances merit such refund, in the Provider’s sole and absolute discretion).
A Free Trial period may be offered to the Customer at the time of sign up. This Free Trial duration may change at any time and is offered under the Provider’s sole discretion. The Customer’s subscription will initialize at the conclusion of the Free Trial and the Customer will be charged the agreed-upon fees as set forth by the Application.
If Customer’s use of the Application is subject to any type of use or sales tax or VAT, then the Provider may also charge Customer for those taxes, in addition to the subscription or other fees published.
The European Union VAT (“VAT”) tax amounts collected by the Provider reflect VAT due on the value of any Content and Services, Application or Recurring Payment Subscriptions.
Customer agrees that Customer will not use IP proxying or other methods to disguise the place of Customer’s residence, whether to circumvent geographical restrictions on content, to purchase at pricing not applicable to Customer’s geography, or for any other purpose. If Customer does this, the Provider may terminate Customer’s access to their Account.
- Responsibility for Charges Associated With Customer’s Account. As the Account holder, Customer is responsible for all charges incurred, including applicable taxes, and all purchases made by Customer or anyone that uses Customer’s Account, including Customer’s family or friends. If Customer cancels Customer’s Account, the Provider reserves the right to collect fees, surcharges or costs incurred before cancellation. Any delinquent or unpaid Accounts must be settled before the Provider will allow Customer to register again.
- Third Party Sites. Services may provide links to other third party sites. Some of these sites may charge separate fees, which are not included in and are in addition to any subscription or other fees that Customer may pay to the Provider. Services may also provide access to third-party vendors, who provide content, goods and/or services on Services or the Internet. Any separate charges or obligations Customer incur in Customer’s dealings with these third parties are Customer’s responsibility. the Provider makes no representations or warranties, either express or implied, regarding any third party site. In particular, the Provider makes no representation or warranty that any service or subscription offered via third-party vendors will not change or be suspended or terminated.
- Health, Medical Notice and Disclaimers.
- The Application is designed to provide Customer and Authorized Users with tools to help Authorized Users meet their own stated individual goals. Customer and Authorized Users’ use of these tools, and any actions they take in connection with these tools, is completely at their own risk. Customer and Authorized Users acknowledge that they take full responsibility for their own health, life and well-being, as well as the health, lives and well-being of their family and children (born and unborn, as applicable), and all decisions now or in the future. Provider is not a doctor, medical professional, clinician or a licensed nutritionist, nor does Provider employ any such persons. Provider is not a medical or healthcare organization, and Provider’s staff cannot give anyone medical or healthcare advice or diagnosis, or create or provide nutritional prescriptions or prescriptive diets. Provider does not claim to help cure or treat any disease or condition, medical or otherwise. Provider does not provide medical aid or nutrition advice for the purpose of treating any health or mental condition or disease. Nothing in the Application should be construed as medical or healthcare advice, diagnosis, or to prescribe any course of treatment.
- Any recommendations provided by the Application are not intended to diagnose, treat, cure, or prevent any disease. All statements and information have not been evaluated by the Food and Drug Administration.
- Before using this Application, or participating in any other nutritional program, Authorized Users should consult a physician to assess whether it is safe for them. The information and reports provided in the Application should not be construed as a substitute for nutritional advice by a physician or dietitian. UNDER NO CIRCUMSTANCES SHOULD ANY INFORMATION PROVIDED BY THE APPLICATION REPLACE ANY DIETARY OR OTHER RECOMMENDATIONS, GUIDANCE OR ADVICE GIVEN TO THEM BY ANY PHYSICIAN OR REGISTERED DIETITIAN OR NUTRITIONIST. Any information provided is intended as useful information provided in respect of Authorized User’s stated goals — not as medical advice — nor as nutritionally prescriptive diets or advice. To the maximum extent permitted by applicable law, Customer and Authorized Users expressly acknowledge and agree that Provider is not providing medical advice, diagnosis, or prescribing a course of treatment, nor providing nutritional prescriptions, or prescriptive diets, through information provided within the Application. The information provided in the Application, and/or any suggested meals or recipes provided in the Application, cannot and do not take into account any individualized health issues that any individual may have, and any individualized health dietary recommendations given by a physician.
- If any Authorized User using the Application has any medical condition known to them, including any medical condition diagnosed by a physician or other healthcare provider, are on any form of medication and/or prescription drugs (whether prescribed or unprescribed), or think they may have any medical condition or are experiencing symptoms of any medical condition (including but not limited to those described below), THEY NEED AND MUST CONSULT WITH A PHYSICIAN BEFORE USING THIS APPLICATION. If any Authorized User has any such condition, by using the Application, Customer and Authorized Users hereby represent and warrant that such Authorized Users have consulted with a physician about their use of the Application, and Customer and Authorized Users agree to indemnify, release, and hold harmless Provider and all Provider personnel from any and all damages connected with their failure to consult with a physician and their breach of such representation and warranty. The types of medical conditions with which this Application could interact include, but are not limited to, the following: eating disorder, pregnancy, diabetes, food allergies or intolerances, any type of diabetes, high or low blood pressure, high cholesterol, any other cardiovascular or metabolic issue, thyroid issues, insomnia, dementia, stomach or intestinal ulcers, gastroesophageal reflux disease, irritable bowel syndrome or other digestive issues, any conditions affecting internal organs (including liver, kidney, gallbladder, or pancreas) or other similar conditions.
- Individual results are NOT guaranteed and WILL vary.
- Provider cannot and do not guarantee that any individual will attain a specific or particular result, and Customer and Authorized Users accept the risk that results and risks differ for each individual. Achieving individual goals depends on many variables which are completely out of Provider’s control, including but not limited to an user’s individual background, unique health and genetic profile, starting point, dedication, capacity, life experience, expertise, and level of desire, motivation, and commitment.
- Intellectual Property Rights.
- Provider Materials. Customer acknowledges that, as between Customer and Provider, Provider owns all right, title, and interest, including all intellectual property rights, in and to the Provider IP (as defined below). As used herein, “Provider IP” means the Services, the Provider Materials, and any and all and any and all other information, data, documents, all devices, documents, data, know-how, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by Provider in connection with the Services or otherwise comprise or relate to the Services or Provider’s systems. For the avoidance of doubt, Provider IP includes Aggregate Data and any information, data, or other content derived from Provider’s monitoring of Customer’s access to or use of the Services, but does not include Customer Data. Without limiting the generality of the foregoing, Customer acknowledges that, in the course of performing the Services, Provider may use software and related processes, instructions, methods, and techniques that have been previously developed by Provider (collectively, the “Pre-existing Materials,” which shall include the Services) and that the same shall remain the sole and exclusive property of Provider. With respect to Third-Party Materials, the applicable third-party providers own all right, title, and interest, including all Intellectual Property Rights, in and to the Third-Party Materials. Customer has no right, license, or authorization with respect to any of the Provider Materials except as expressly set forth in 2.1 or the applicable third-party license, in each case subject to 3.1. All other rights in and to the Provider Materials are expressly reserved by Provider. In furtherance of the foregoing, Customer hereby unconditionally and irrevocably grants to Provider an assignment of all right, title, and interest in and to the Resultant Data, including all Intellectual Property Rights relating thereto.
- Consent to Use Customer Data. Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Data as are necessary or useful to Provider, its Subcontractors, and the Provider Personnel to enforce this Agreement and exercise Provider’s, its Subcontractors’, and the Provider Personnel’s rights and perform Provider’s, its Subcontractors’, and the Provider Personnel’s obligations hereunder.
- Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to Provider by mail, email, telephone, or otherwise, suggesting or recommending changes to the Provider IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Provider is free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback. Customer hereby assigns to Provider on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Provider is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Provider is not required to use any Feedback.
- Representations and Warranties.
- Mutual Representations and Warranties. Each party represents and warrants to the other party that:
- it is duly organized, validly existing, and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization;
- it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under this Agreement;
- this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and
- this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.
- Additional Provider Representations, Warranties, and Covenants. Provider represents, warrants, and covenants to Customer that Provider will perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to meet its obligations under this Agreement.
- Additional Customer Representations, Warranties, and Covenants. Customer represents, warrants, and covenants to Provider that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by Provider and processed in accordance with this Agreement, they do not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable Law.
- DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN 9.1 AND 9.2, ALL SERVICES AND PROVIDER MATERIALS ARE PROVIDED “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, PROVIDER, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE APPLICATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, PROVIDER PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
- Mutual Representations and Warranties. Each party represents and warrants to the other party that:
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO CUSTOMER.
- Provider Indemnification.
- Provider shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) incurred by Customer resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party’s US intellectual property rights, provided that Customer promptly notifies Provider in writing of the claim, cooperates with Provider, and allows Provider sole authority to control the defense and settlement of such claim.
- If such a claim is made or appears possible, Customer agrees to permit Provider, at Provider’s sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use the Services. If Provider determines that neither alternative is reasonably available, Provider may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer.
- This Section 10.1 will not apply to the extent that the alleged infringement arises from: (A) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Provider or authorized by Provider in writing; (B) access to or use of the Provider Materials in combination with any hardware, system, software, network, or other materials or service not provided by Provider or specified for Customer’s use in the Documentation; (C) modifications to the Services or Provider Materials not made by Provider or with Provider’s express written consent; (D) Customer Data or User Content; (E) Third-Party Products, or (F) failure to timely implement any modifications, upgrades, replacements, or enhancements made available to Customer by or on behalf of Provider.
- Sole Remedy. THIS SECTION 10 SETS FORTH CUSTOMER’S SOLE REMEDIES AND PROVIDER’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES AND PROVIDER MATERIALS OR ANY SUBJECT MATTER OF THIS AGREEMENT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
- Provider Indemnification.
- Limitations of Liability.
- EXCLUSION OF DAMAGES. IN NO EVENT WILL EITHER PARTY OF ANY ITS LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION, OR DELAY OF THE SERVICES; (c) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (d) COST OF REPLACEMENT GOODS OR SERVICES; (e) LOSS OF GOODWILL OR REPUTATION; OR (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
- CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE AGGREGATE LIABILITY OF PROVIDER ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNTS PAID TO PROVIDER UNDER THIS AGREEMENT IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
- THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO CUSTOMER.
- Exceptions. The exclusions and limitations in 11.1 and 11.2 do not apply to Customer’s obligations under 10.
- Term and Termination.
- Initial Term. The term of Agreement commences when Customer accesses the Application and will continue in effect until terminated by Customer or Provider as set forth in this Section 12.
- Termination. Provider may terminate this Agreement at any time without notice if it ceases to support the Application, which Provider may do in the Provider’s sole and absolute discretion. The Provider may further terminate this Agreement at any time, for any reason, in the Provider’s sole and absolute discretion. In addition, this Agreement will terminate immediately and automatically without any notice if Customer or any Authorized Users violate any of the terms and conditions of this Agreement. In order for Customer to terminate their subscription and this Agreement, Customer must cancel Customer’s subscription following the cancellation instructions in the Application
- Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement:
- all rights, licenses, consents, and authorizations granted by either party to the other hereunder will immediately terminate;
- termination does not entitle Customer to any refund of previously paid amounts (provided, however, that the Provider may from time-to-time issue refunds to users if the Provider determines the circumstances merit such refund, in the Provider’s sole and absolute discretion)
- Customer shall immediately cease all use of any Services or Provider Materials and (i) promptly return to Provider, or at Provider’s written request destroy, all documents and tangible materials containing, reflecting, incorporating, or based on any Provider Materials;
- Provider may disable all Customer and Authorized User access to the Services and/or any Provider Materials;
- Surviving Terms. The provisions set forth in the following sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: 3.1, Section 7, Section 8, 9.4, 10, 11, 12.2, this 12.4, and 13.
- Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
- Notice. Provider’s notice to Customer via email, regular mail, or notices or links displayed in connection with the Application, constitutes acceptable notice to Customer under this Agreement. Provider is not responsible for Customer’s failure to receive notice if email is quarantined by Customer’s email security system (e.g., “junk” or “spam” folder) or if Customer fails to update Customer’s email address. Notice will be considered received forty-eight hours after it is sent if transmitted via email or regular mail. In the event that notice is provided via links displayed in connection with the Application, then it will be considered received twenty-four hours after it is first displayed.
- Interpretation. For purposes of this Agreement: (a) the words “include,” “includes,” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in this Agreement: (x) to sections, exhibits, schedules, attachments, and appendices mean the sections of, and exhibits, schedules, attachments, and appendices attached to, this Agreement; (y) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments, and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein.
- Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
- Entire Agreement. This Agreement and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
- Assignment. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Provider’s prior written consent. No assignment, delegation, or transfer will relieve Customer of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 13.8 is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective successors and permitted assigns.
- Force Majeure.
- No Breach or Default. In no event will Provider be liable or responsible to Customer, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by any circumstances beyond Provider’s reasonable control (a “Force Majeure Event”), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, pandemics, epidemics, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota, or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. Either party may terminate this Agreement if a Force Majeure Event continues substantially uninterrupted for a period of Sixty (60) days or more.
- Affected Party Obligations. In the event of any failure or delay caused by a Force Majeure Event, Provider shall give prompt written notice to Customer stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
- No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
- Amendment and Modification; Waiver. No amendment to or modification of or rescission, termination, or discharge of this Agreement is effective unless it is in writing and signed by each party. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
- Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
- Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Colorado without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Colorado. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Colorado in each case located in the city of Boulder and County of Boulder, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court.
- Waiver of Jury Trial. Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.
- Attorneys’ Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party against the other party arising out of or related to this Agreement, the prevailing party is entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing party.
“Access Credentials” means any user name, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device, used alone or in combination, to verify an individual’s identity and authorization to access and use the Application or Services.
“Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise.
“Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person.
“Agreement” has the meaning set forth in the preamble.
“Authorized Users” means Customer’s clients, team members, customers, and agents (a) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement; and (b) for whom access to the Services has been purchased hereunder.
“Customer” has the meaning set forth in the preamble.
“Customer Data” means information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly, from Customer or an Authorized User by or through the Services; provided, however, that the foregoing shall not include any User Content. For the avoidance of doubt, Customer Data does not include Resultant Data or any other information reflecting the access or use of the Services by or on behalf of Customer or any Authorized User.
“Customer Failure” has the meaning set forth in 4.2.
“Customer Systems” means the Customer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services.
“Documentation” means any manuals, instructions, or other documents, written information, or materials, if any, that the Provider provides or makes available to Customer in any form or medium and which describe the functionality, components, features, or requirements of the Services or Provider Materials, including any aspect of the installation, configuration, integration, operation, use, support, or maintenance thereof.
“Force Majeure Event” has the meaning set forth in 13.7(a).
“Harmful Code” means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system, or network; or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data processed thereby; or (b) prevent Customer or any Authorized User from accessing or using the Services or Provider Systems as intended by this Agreement. Harmful Code does not include any Provider Disabling Device.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
“Losses” means any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.
“Personal Information” means information that Customer or any Authorized User provides that: (i) directly or indirectly identifies an individual (including, for example, names, signatures, addresses, telephone numbers, email addresses, and other unique identifiers); or (ii) can be used to authenticate an individual (including, without limitation, employee identification numbers, government-issued identification numbers, passwords or PINs, user identification and account access credentials or passwords, financial account numbers, credit report information, student information, biometric, genetic, health, or health insurance data, answers to security questions, and other personal identifiers). Notwithstanding the foregoing, (i) Customer’s business contact information is not by itself Personal Information, and (ii) the log-in information, or business contact information, of any Authorized User shall not be considered Personal Information.
“Process” means to take any action or perform any operation or set of operations that the Services are capable of taking or performing on any data, information, or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate, or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose, or otherwise provide or make available, or block, erase, or destroy. “Processing” and “Processed” have correlative meanings.
“Provider” has the meaning set forth in the preamble.
“Provider Disabling Device” means any software, hardware, or other technology, device, or means (including any back door, time bomb, time out, drop dead device, software routine, or other disabling device) used by Provider or its designee to disable Customer’s or any Authorized User’s access to or use of the Services automatically with the passage of time or under the positive control of Provider or its designee.
“Provider Indemnitee” has the meaning set forth in 10.2.
“Provider Materials” means the Services, Specifications, Documentation, and Provider Systems and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by Provider or any Subcontractor in connection with the Services or otherwise comprise or relate to the Services or Provider Systems. For the avoidance of doubt, Provider Materials include Resultant Data and any information, data, or other content derived from Provider’s monitoring of Customer’s access to or use of the Services, but do not include Customer Data.
“Provider Personnel” means all individuals involved in the performance of Services as employees, agents, or independent contractors of Provider or any Subcontractor.
“Provider Systems” means the information technology infrastructure used by or on behalf of Provider in performing the Services and providing the Services to Customers, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Provider or through the use of third-party services.
“Resultant Data” means data and information related to Customer’s use of the Services that is used by Provider in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
“Services” means the software-as-a-service offering described above in the Recitals.
“Specifications” means the specifications for the Services as may be set forth on Provider’s website.
“Subcontractor” has the meaning set forth in 2.7.
“Third-Party Materials” means materials and information, in any form or medium, including any open-source or other software, documents, applications data, content, specifications, products, services, equipment, or components of or relating to the Services that are not proprietary to Provider or provide links to third-party websites or services, including through third-party advertising.