Terms & Conditions
Effective: February 06, 2022
These terms of service (“Customer Terms of Service”) govern your access to and use of the cakechat website, the Cake application, and all associated services (collectively the “Services”) provided by CAKETECH, INC., a Delaware corporation (“Company”) as well as the relationship between yourself, as the “Customer” (as defined below), and the Company. Your access to and use of the Services is conditioned on your acceptance of and compliance with all of the Customer Terms of Service. Accordingly, please carefully review all the Customer Terms of Service before you access or otherwise use the Services. If you do not agree to all of these Customer Terms of Service, please do not access or use the Services.
You may access and use the Services as a Customer only after you have formed a binding contract with the Company on behalf of Customer. For purposes of these Customer Terms of Service, the “Customer” shall be the legal entity whose name is set forth as the organization in the Customer sign-up interface of the Services. These Customer Terms of Service and the terms and conditions of any separate written customer agreement entered into by and between Customer and the Company, if any (a “Customer Agreement”), together form a binding “Contract” between Customer and the Company. As applicable, all terms and conditions of any Customer Agreement are hereby incorporated herein by reference and form part of the Contract.
The binding Contract will be formed once you have agreed to all the Customer Terms of Service by affirmatively clicking your agreement thereto, as indicated on the Customer sign-up interface of the Services. By so clicking your agreement to the Contract, you, the individual whose name is set forth in the Customer sign-up interface of the Services, hereby represent and warrant that as of the date of entering into the Contract by clicking your agreement to the terms and conditions thereof, that you have the requisite authority to enter into a legally binding contract on behalf of Customer and, as such, that you are, by so clicking, entering into the Contract on behalf of the Customer, which shall then become legally binding on the Customer. Thereafter, any changes to the terms and conditions of the Contract shall be as set forth in the modification terms set forth herein.
1.0 The Administrator, Authorized Users, and Accounts
Upon creating the Contract, you, the individual whose name is set forth in the Customer sign-up interface of the Services, shall become the initial administrator of the Customer with respect to the Services and the workspace created for the Customer by the Services and shall have the primary authority over the workspace and the settings, permissions, and options of the Services (the “Administrator”). If at any time the Customer elects to replace you as the Administrator, the Company will provide you with notice following such election and you agree to take any actions reasonably requested by the Company or Customer to facilitate the transfer of authority to a new Administrator. To the extent that any former Administrator is permitted to access and use the Services immediately subsequent to their removal as Administrator, the former Administrator shall do so as an “Authorized User” pursuant to the “User Terms” (as such terms are defined below) then in effect.
The Administrator may authorize, on behalf of Customer, other individuals to access and use the Services (each an “Authorized User”), and each such Authorized User may access and use the Services after agreeing to the Company’s terms and conditions for providing the Services to Authorized Users (the “User Terms”; such terms are located at https://cakechat/UserTerms). The Administrator and each Authorized User may access and use the Services and may submit content or information to the Services, including without limitation messages, information, text, graphics, files or other materials (all such content and information is “Customer Data”).
Customer, through the Administrator, exclusively provides the Company with instructions on how such Customer Data is processed by determining the various settings, permissions, and other options of the Services available to the Administrator. Because Customer, through the Administrator, exclusively determines how the Customer Data is processed through the Services, Customer, through the Administrator, shall have the sole obligation to (a) inform Authorized Users of all Customer policies and practices that are relevant to their use of the Services and of any permissions and settings that may impact the processing of Customer Data; and (b) ensure the transfer and processing of Customer Data under the Contract is done in accordance with all applicable local, state, national, and international laws, rules and regulations.
Customer is also responsible for complying with terms and conditions of the Contract and must also ensure that its Administrator and each of its Authorized Users comply with the Contract and all applicable User Terms.
More particularly, the Customer is solely responsible for ensuring that the Administrator and each Authorized User fully complies with the Company’s Acceptable Use Policy for the Services.
2.0 Acceptable Use Policy of the Services
The following constitutes the Company’s Acceptable Use Policy of the Services. This policy may be updated or modified at any time without prior notice, so please check back regularly for any updates and changes. Any capitalized terms used below but not defined herein have the meaning set forth in the User Terms.
The Customer hereby agrees that it is responsible for ensuring that the Administrator and each Authorized User:
is at least eighteen (18) years of age.
complies with all User Terms, including the terms of this Acceptable Use Policy;
complies with all applicable laws and governmental regulations, including, but not limited to, all intellectual property, data, privacy, and export control laws, and regulations promulgated by any applicable government agencies;
uploads and disseminates only Customer Data to which Customer owns all required rights under law and under contractual and fiduciary relationships (such as proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements) and does so only consistent with applicable law;
uses commercially reasonable efforts to prevent unauthorized access to or use of the Services;
keeps passwords and all other login information confidential;
monitors and controls all activity conducted through their account in connection with the Services; and
promptly notifies the Company if they become aware of or reasonably suspects any illegal or unauthorized activity or a security breach involving Customer’s accounts or teams, including any loss, theft, or unauthorized disclosure or use of a username, password, or account.
The Customer hereby agrees that it is responsible for ensuring that the Administrator and each Authorized User not:
permit any third party that is not an Authorized User to access or use a username or password for the Services;
share, transfer or otherwise provide access to an account designated for one person to another person;
use the Services to store or transmit any Customer Data that may infringe upon or misappropriate someone else’s trademark, copyright, or other intellectual property, or that may be tortious or unlawful;
publish or post other individual’s private or personally identifiable information, such as credit card numbers, street address or Social Security/National Identity numbers, without their express authorization and permission;
upload to, or transmit from, the Services any data, file, software, or link that contains or redirects to a virus, Trojan horse, worm, or other harmful component or a technology that unlawfully accesses or downloads content or information stored within the Services or on the hardware of the Company or any third party;
attempt to reverse engineer, decompile, hack, disable, interfere with, disassemble, modify, copy, translate, or disrupt the features, functionality, integrity, or performance of the Services (including any mechanism used to restrict or control the functionality of the Services), any third party use of the Services, or any third party data contained therein (except to the extent such restrictions are prohibited by applicable law);
attempt to gain unauthorized access to the Services or related systems or networks or to defeat, avoid, bypass, remove, deactivate, or otherwise circumvent any software protection or monitoring mechanisms of the Services;
access the Services in order to build a similar or competitive product or service or copy any ideas, features, functions, or graphics of the Services;
use the Services in any manner that may harm minors or that interacts with or targets people under the age of thirteen;
engage in activity that incites or encourages violence or hatred against individuals or groups or that creates a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person or entity, or to any animal;
impersonate any person or entity, including, but not limited to, a Company representative, an Administrator, the Customer, or any other Authorized User, or falsely state or otherwise misrepresent your affiliation with a person, organization or entity;
use the Services to provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act or other laws and regulations concerning national security, defense or terrorism;
access, search, or create accounts for the Services by any means other than our publicly supported interfaces (for example, “scraping” or creating accounts in bulk);
send unsolicited communications, promotions or advertisements, or spam;
send altered, deceptive or false source-identifying information, including “spoofing” or “phishing”;
sublicense, resell, time share or similarly exploit the Services;
use the Services for consumer purposes, as the Services are intended for business use by businesses and organizations;
use contact or other user information obtained from the Services (including email addresses) to contact Authorized Users outside of the Services without their express permission or authority or to create or distribute mailing lists or other collections of contact or user profile information for Authorized Users for use outside of the Services;
authorize, permit, enable, induce or encourage any third party to do any of the above; or
use the Services for any unlawful purposes or for promotion of any illegal activities.
Under no circumstances shall the Company be responsible for the content of any Customer Data or the way Customer or its Administrator or Authorized Users choose to use the Services to store or process any Customer Data. The Company may review the conduct of the Administrator and any Authorized User on the Services for compliance purposes, but the Company shall have no obligation to do so. If the Company in so reviewing the conduct of the Administrator and any Authorized User, finds a violation of this Acceptable Use Policy, the Company shall notify such Administrator and any Authorized User of such violation. However, if the Company believes, in its sole and absolute discretion, a violation of the Acceptable Use Policy is deliberate, repeated or otherwise presents a credible risk of harm to other users, our customers, the Company, the Services or any third parties, we may suspend or terminate the use and access of the Services by any Administrator or Authorized User immediately without prior notice. The Company will attempt to communicate with the Customer, the Administrator, and/or any applicable Authorized Users to remedy and rectify any violation of this Acceptable Use Policy so that the Customer, the Administrator, and/or any applicable Authorized Users can address and directly remedy and rectify any such violation. However, the Company hereby reserves the right to unilaterally take any additional actions it deems necessary, in its sole and absolute discretion, to remedy and rectify any violation of this Acceptable Use Policy, including without limitation removing any Customer Data which is in violation of this Acceptable Use Policy.
3.0 Subscriptions and Payment Obligations for Subscriptions
A subscription allows the Administrator and/or an Authorized User to access and use the Services. A subscription is required for each Authorized User, including without limitation the Administrator. A subscription may be procured through the Services interface or through a Customer Agreement. Each Authorized User must agree to the User Terms to activate their subscription. Subscriptions commence when the Company makes them available to Customer and continue for the term specified in the Services “check-out” interface or in the Customer Agreement, as applicable. Each subscription is for a single Authorized User for a specified term and is personal to that Authorized User. A Customer may purchase additional or discontinue in-use subscriptions as specified in the Services “check-out” interface or in the Customer Agreement, as applicable.
For Customers that purchase our Services, fees are specified in the Services interface “check-out” or in any applicable Customer Agreement and must be paid in advance. Payment obligations are non-cancelable and, except as expressly stated in the Contract, fees paid are non-refundable. For clarity, in the event Customer downgrades any subscriptions from a paid plan to a free plan, Customer will remain responsible for any unpaid fees under the paid plan, and Services under the paid plan will be deemed fully performed and delivered upon expiration of the initial paid plan subscription term. If we agree to invoice Customer by email, full payment must be received within thirty (30) days from the invoice date. Fees are stated exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including without limitation, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”). Customer will be responsible for paying any and all Taxes associated with Customer’s purchase of the Services, except for those taxes based on the Company’s net income. Should any payment for the Services be subject to withholding tax by any government, Customer will reimburse the Company for such withholding tax.
If any fees are owed to the Company by Customer (excluding amounts disputed reasonably and in good faith) are thirty (30) days or more overdue, the Company may, without limiting our other rights and remedies, downgrade any fee-based Services to free plans until those amounts are paid in full, so long as we have given Customer ten (10) or more days’ prior notice that its account is overdue. Notwithstanding any provision in the Contract to the contrary, Customer hereby acknowledges, understands, and agrees that any such downgrade resulting from the non-payment of fees will result in a decrease in certain features and functionality and potential loss of access to some or all of the Customer Data. Any credits that may accrue to Customer’s account will expire following expiration or termination of the applicable Contract, will have no currency or exchange value, and will not be transferable or refundable. Any credits accrued to a workspace on a free subscription plan will expire if the workspace’s plan is not upgraded to a paid plan within ninety (90) days of accrual, unless otherwise specified in the Services “check-out” interface or in the Customer Agreement, as applicable.
4.0 Obligations of the Company
Subject to the terms and conditions of the Contract, the Company hereby agrees that it shall make the Services available to Customer, its Administrator and its Authorized Users as described in the Contract and shall not use or process Customer Data for any purpose without Customer’s prior written instructions; provided, however, that “prior written instructions” will be deemed to include all use of the Services by the Administrator and the Authorized Users and any and all processing resulting from or otherwise related to such use, as well as any other processing of Customer Data by the Company that otherwise is necessary or required for the performance of the Contract or the provision of the Services to Customer by Company.
Company shall use commercially reasonable efforts to make the Services available for access and use by Customer as much as possible during any given day, excluding Company planned downtime. Company will endeavor to provide Customer with advance notice of any planned downtime, but shall not be under any obligation to do so. Except for any downgrade resulting from failure to pay for the Services as set forth above, the Company will not materially decrease the functionality of the Services during a subscription term. For any breach of a warranty in this section, Customer’s exclusive remedies are those described in the “Termination” section below.
The Company shall institute commercially reasonable internal policies for preventing unauthorized access, use, modification, deletion and disclosure of Customer Data by Company personnel. Before sharing Customer Data with any of any Company’s third party service providers, the Company will ensure that the third party maintains, at a minimum, commercially reasonable data practices for maintaining the confidentiality and security of Customer Data and preventing unauthorized access. However, Customer, not the Company, bears sole responsibility for adequate security, protection and backup of Customer Data when in Customer’s or its representatives’ or agents’ possession or control and Company shall not be responsible for what Customer’s Administrator or Authorized Users do with Customer Data in their possession or control, including without limitation what such parties do with Customer Data in their possession or control while using the Services.
Our Services include a platform that third parties may use to develop applications, integrations, interfaces, and software that complement Customer’s use of the Services (each, a “Third Party Product”). THESE THIRD PARTY PRODUCTS ARE NOT COMPANY SERVICES, SO THE COMPANY DOES NOT WARRANT OR SUPPORT ANY SUCH THIRD PARTY PRODUCT. THE CUSTOMER WILL SOLELY DECIDE WHETHER OR NOT TO ENABLE OR USE ANY SUCH THIRD PARTY PRODUCTS, AND ANY USE OF A THIRD PARTY PRODUCT IS A MATTER SOLELY BETWEEN CUSTOMER AND THE APPLICABLE THIRD PARTY PROVIDER.
If a Third Party Product is enabled for Customer’s workspace, the Customer hereby acknowledges, understands and agrees that Customer Data may be shared with such third party and the Third Party Product may allow the third party access to Customer Data the purposes for which the provider requires access. The Company shall not be responsible for any use, disclosure, modification or deletion of Customer Data that is transmitted to, or accessed by a Third Party Product or for any transmission of information or content transmitted from any such third party by the Third Party Product to the Customer through the Services, which then becomes Customer Data, for which Customer has the sole responsibility.
5.0 Ownership of Customer Data and Proprietary Rights of Customer and Company
As set forth above, all Customer Data that is submitted to the Services on behalf of the Customer is submitted by the Administrator or Authorized Users of the Customer on behalf of Customer. As such, the Customer is solely responsible for all Customer Data submitted to the Services, and Customer retains full ownership of all Customer Data submitted to the Services. However, subject to the terms and conditions of the Contract, Customer, on behalf of itself, the Administrator, and all of its Authorized Users, hereby grants the Company a worldwide, non-exclusive, limited term license to access, use, process, copy, distribute, perform, export and display Customer Data, and any Third Party Products created by or for Customer, including without limitation through any third party service providers to the Company necessary to providing the Services, only as reasonably necessary (a) to provide, maintain, and update the Services; (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. Customer hereby represents and warrants that it has secured all rights in and to all Customer Data from its Administrator and its Authorized Users as may be necessary to grant this license. Customer, on behalf of itself, the Administrator, and all of its Authorized Users, also hereby grants the Company an unlimited, irrevocable, perpetual, sublicensable, transferable, royalty-free license to use any feedback or suggestions provided by Customer, its Administrator or its Authorized Users to the Company regarding the current functionality and features or potential functionality and features of the Services for any purpose without any obligation or compensation to Customer, its Administrator, or any Authorized User.
The Company owns and will continue to have full right, title, interest in, and ownership of the Services, including without limitation all related intellectual property rights related thereto.
Subject to Customer’s ongoing compliance with the terms of the Contract and the User Terms, Company hereby grants Customer a limited, personal, non-sublicensable, non-transferable, non-exclusive, royalty-free license for Customer, its Administrator, and its Authorized Users to use the Services in accordance with the Contract and the User Terms. All of our rights not expressly granted by this license are hereby retained. The Company hereby reserves the right to terminate this license at any time for any reason or for no reason.
The Company may make available software to access the Services via a mobile device or desktop application (“Software”). In order to use the Software you must use a device that is compatible with the Software. The Company does not warrant that the Software will be compatible with your device. The Company hereby grants the Customer, its Administrator, and its Authorized Users a limited, personal, non-sublicensable, non-transferable, non-exclusive, royalty-free license to use a compiled code copy of the Software for their respective personal use. Each of Customer, its Administrator, and its Authorized Users may not: (i) modify, disassemble, decompile or reverse engineer the Software, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Software to any third party or use the Software to provide time sharing or similar services for any third party; (iii) make any copies of the Software; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Software, features that prevent or restrict use or copying of any content accessible through the Software, or features that enforce limitations on use of the Software; or (v) delete the copyright and other proprietary rights notices on the Software. Customer, its Administrator, and each Authorized User agrees that the Company may from time to time issue upgraded versions of the Software, and may automatically electronically upgrade the version of the Software that each such party is using on each such party’s device. Customer, its Administrator, and each Authorized User agrees to the automatic upgrading on each such party’s device, and agree that the terms and conditions of the Contract and the User Terms will apply to any such upgrades. Any third-party code that may be incorporated in the Software is covered by the applicable open source or third-party license, if any, authorizing use of such code. This license is not a sale of the Software or any copy thereof, and the Company or its third party partners or suppliers hereby retain all right, title, and interest in and to the Software and any copy thereof.
7.0 Representations; Disclaimer of Warranties; and Limitation of Liability
Customer represents and warrants that it has validly entered into the Contract and has the legal capacity to do so. Customer further represents and warrants that it is responsible for the conduct of its Administrator and each of its Authorized Users and their compliance with the terms of this Contract and the User Terms.
EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, THE SERVICES AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE”, “WITH ALL FAULTS” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND THE COMPANY 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 THE COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, VIRUS-FREE OR ERROR-FREE.
FURTHER, THE COMPANY OR ITS SUBSIDIARIES, AFFILIATES, DIRECTORS, EMPLOYEES, DISTRIBUTORS, SUPPLIERS, AGENTS, OR RESELLERS (THE “COMPANY GROUP”) DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICES IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. IN ADDITION, ANY SECURITY MECHANISMS IMPLEMENTED BY THE SERVICES HAVE INHERENT LIMITATIONS, AND THE CUSTOMER ALONE MUST DETERMINE THAT THE SERVICE SUFFICIENTLY MEETS CUSTOMER’S REQUIREMENTS, INCLUDING WITHOUT LIMITATION CUSTOMER’S SECURITY REQUIREMENTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY THE COMPANY OR A COMPANY AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY. THE COMPANY AND ITS LICENSORS AND OTHER SUPPLIERS HAVE NO LIABILITY WITH RESPECT TO CUSTOMER’S USE OF THE SERVICES. CUSTOMER BEARS THE ENTIRE RISK AS TO THE SERVICES QUALITY AND PERFORMANCE OF THE SERVICES AND ASSUMES THE ENTIRE COST OF ANY SERVICE AND REPAIR NECESSITATED BY THE SERVICES. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THESE TERMS. NO USE OF THE SERVICES IS AUTHORIZED HEREUNDER EXCEPT UNDER THIS DISCLAIMER.
OTHER THAN IN CONNECTION WITH A PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT WILL EITHER CUSTOMER’S OR THE COMPANY GROUP’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE CONTRACT OR THE USER TERMS (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE LAST EVENT GIVING RISE TO LIABILITY. THE FOREGOING WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS HEREUNDER.
IN NO EVENT WILL EITHER CUSTOMER OR THE COMPANY GROUP HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR IN ANY WAY RELATING TO THE CONTRACT OR THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THE SERVICES, INCLUDING WITHOUT LIMITATION, LOSS OF GOODWILL, WORK STOPPAGE, LOST PROFITS, LOSS OF DATA, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES HOWEVER CAUSED, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY UPON WHICH SUCH CLAIM IS BASED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER APPLIES TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW. ADDITIONALLY, UNDER NO CIRCUMSTANCES SHALL THE COMPANY GROUP BE HELD RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY TO CUSTOMER, FOR ANY LOSS OR DAMAGE CAUSED OR ALLEGED TO HAVE BEEN CAUSED TO CUSTOMER IN CONNECTION WITH THE USE OF OR RELIANCE UPON ANY CONTENT, GOODS, OR SERVICES AVAILABLE ON OR THROUGH ANY EXTERNAL SITES LINKED TO OR FROM THE SERVICES.
Customer is solely responsible for all login credentials, including without limitation usernames and passwords, for Customer’s Administrator account as well the accounts of each of its Authorized Users. Company will not be responsible for any damages, losses or liability to Customer, its Administrator, or its Authorized Users, or anyone else, if such information is not kept confidential by Customer, its Administrator or its Authorized Users, or if such information is correctly provided by an unauthorized third party logging into and accessing the Services.
The limitations set forth in this section apply with respect to all legal theories, whether in contract, tort or otherwise, and to the maximum extent permitted by applicable law. Each of the Company Group and the Customer hereby understand, acknowledge, and agree that the provisions of this section fairly allocate the risks under this Contract between the parties, and that the parties have relied on these limitations in determining whether to enter into this Contract and the pricing for the Services hereunder. Accordingly, Customer’s sole and exclusive remedies in the event of any dispute with the Company Group under or relating to the Contract or the Services are to terminate the Contract and/or discontinue using the Services.
Company will defend Customer from and against any and all third party claims, actions, suits, proceedings, and demands alleging that the use of the Services as permitted under the Contract infringes or misappropriates a third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify Customer for all reasonable attorney’s fees incurred and damages and other costs finally awarded against Customer in connection with or as a result of, and for amounts paid by Customer under a settlement Company approves of in connection with a Claim Against Customer; provided, however, that the Company will have no liability if a Claim Against Customer arises from (a) Customer Data or Third Party Products; and (b) any modification, combination or development of the Services that is not performed by the Company, including without limitation in the use of any application programming interface (API). Customer must provide the Company with prompt written notice of any Claim Against Customer and allow the Company the right to assume the exclusive defense and control, and cooperate with any reasonable requests assisting the Company’s defense and settlement of such matter. This section states the Company’s sole liability with respect to, and Customer’s exclusive remedy against the Company and its officers, employees, contractors, and agents for, any Claim Against Customer.
Customer will defend Company and its officers, employees, contractors, and agents (collectively, the “Company Indemnified Parties”) from and against any and all third party claims, actions, suits, proceedings, and demands arising from or related to Customer’s, Administrator’s or any of its Authorized Users’ use of the Services in violation of the Contract or the User Terms (a “Claim Against the Company”), and will indemnify the Company Indemnified Parties for all reasonable attorney’s fees incurred and damages and other costs finally awarded against a Company Indemnified Party in connection with or as a result of, and for amounts paid by a Company Indemnified Party under a settlement Customer approves of in connection with a Claim Against the Company. The Company must provide Customer with prompt written notice of any Claim Against the Company and allow Customer the right to assume the exclusive defense and control, and cooperate with any reasonable requests assisting Customer’s defense and settlement of such matter. This section states Customer’s sole liability with respect to, and the Company Indemnified Parties’ exclusive remedy against Customer for, any Claim Against the Company.
Notwithstanding anything contained in the two preceding sections, (a) an indemnified party will always be free to choose its own counsel if it pays for the cost of such counsel; and (b) no settlement may be entered into by an indemnifying party, without the express written consent of the indemnified parties (such consent not to be unreasonably withheld), if (i) the third party asserting the claim is a government agency, (ii) the settlement arguably involves the making of admissions by the indemnified parties, (iii) the settlement does not include a full release of liability for the indemnified parties, or (iv) the settlement includes terms other than a full release of liability for the indemnified parties and the payment of money.
9.0 Confidential Information and Confidentiality
Each party (“Disclosing Party”) may disclose “Confidential Information” to the other party (“Receiving Party”) in connection with the Contract, which is defined as any information that reasonably should be understood to be confidential or proprietary given the nature of the information and the circumstances of the disclosure, including without limitation anything labeled “Confidential,” the terms of any Customer Agreement, including without limitation any pricing information thereon, a Disclosing Party’s intellectual property, and any non-public business, product, technology and marketing information of a Disclosing Party. Confidential Information of Customer includes without limitation Customer Data. 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 any reference to any Confidential Information of the Disclosing Party, as evidenced by written records maintained in the ordinary course of business.
The Receiving Party will (a) take at least reasonable measures to prevent the unauthorized disclosure or use of Confidential Information, and limit access to those employees, affiliates and contractors who need to know such information in connection with the Contract; and (b) not use or disclose any Confidential Information of the Disclosing Party for any purpose outside the scope of this Contract. Nothing above will prevent either party from sharing Confidential Information with financial and legal advisors; provided, however, that all such advisors shall be bound to confidentiality obligations at least as restrictive as those set forth in the Contract.
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.
10.0 Term; Termination; and Survival
As further specified below, a free subscription continues until terminated, while a paid subscription has a term that may expire or be terminated. The Contract remains effective, and in force and effect, until all subscriptions ordered under the Contract have expired or been terminated or the Contract itself terminates. Termination of the Contract will terminate all subscriptions and all Customer Agreements, as applicable.
Unless otherwise provided in an applicable Customer Agreement, (a) all subscriptions automatically renew for additional periods equal to one (1) year or the preceding term, whichever is shorter; and (b) the applicable per-unit or per-seat pricing during any automatic renewal term will remain the same as it was during the immediately prior term. Either party can provide the other party notice of non-renewal at least thirty (30) days before the end of a subscription term to stop one or more or all subscriptions from automatically renewing, in which case such non-renewing subscriptions will be deemed to have expired as of the last date of their respective term.
The Company or the Customer may terminate the Contract “for cause” by providing notice to the other party if the other party materially breaches the Contract and such breach is not cured within thirty (30) days after the non-breaching party provides notice of the breach, provided that such notice specified such material breach of the Contract in commercially reasonable detail allowing the other party to so cure any such breach that may be curable. Customer is solely responsible for its Administrator and Authorized Users, including without limitation for any breaches of this Contract caused by its Administrator or Authorized Users. Notwithstanding the foregoing, the Company may terminate the Contract immediately on notice to Customer if the Company reasonably believes that the Services are being used by Customer or its Administrator or Authorized Users in violation of applicable law.
Customer may terminate its free subscriptions immediately without cause. The Company may also terminate Customer’s free subscriptions without cause, but the Company will provide Customer with thirty (30) days prior written notice to any such termination.
Upon any termination of the Contract “for cause” by Customer, the Company will refund Customer any prepaid fees covering the remainder of the term of all subscriptions under the Contract after the effective date of termination. Upon any termination of the Contract “for cause” by the Company, Customer will continue to owe and will pay any unpaid fees covering the remainder of the term of those subscriptions under the Contract after the effective date of termination. In no event will any termination relieve Customer of the obligation to pay any fees payable to the Company for the period prior to the effective date of termination.
During the term of Customer’s contract, Customer will be permitted to export or share certain Customer Data from the Services in accordance with the then existing functionality of the Services; provided, however, that because the Company may have different products with varying features and functionality available and Customer may have different retention options, Customer understands, acknowledges and agrees that the ability to export or share Customer Data may be limited or unavailable depending on the functionality of the Services then in effect; the type of Services plan in effect; and the data retention, sharing, invitation or other settings enabled for the Services by the Customer. Following termination or expiration of Customer’s contract, the Company will have no obligation to maintain or provide any Customer Data and may thereafter, unless legally prohibited, delete all Customer Data in the Company’s systems or otherwise in our possession or under our control.
Survival. Upon any termination or expiration of the Contract, any applicable provisions shall be deemed to survive any such termination or expiration of the Contract, including without limitation sections 5, 6, 7, 8, 9, 10, and 11.
11.0 Miscellaneous Provisions
Force Majeure. Neither the Company 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 such 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; No Third Party Beneficiaries. The parties are independent contractors. The Contract does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. There are no third party beneficiaries to the Contract.
Notices. Except as otherwise set forth herein, all notices under the Contract will be by email, although the Company may instead choose to provide notice to Customer through the Services. All notices and communication to the Company from the Customer should will be sent to [email protected], except for legal notices, such as notices of termination or notices of an indemnifiable claim, which must be sent to both [email protected] and [email protected]. Notices will be deemed to have been duly given (a) the 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.
Waiver. No failure or delay by either party in exercising any right under the Contract will constitute a waiver of that right. No waiver under the Contract will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver.
Severability. The Contract will be enforced to the fullest extent permitted under applicable law. If any provision of the Contract 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 Contract will remain in effect.
Captions and Headings. The captions and headings appearing in the Customer Terms of Service are for reference only and will not be considered in construing the Contract.
Assignment. Neither party may assign or delegate any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party, not to be unreasonably withheld; provided however, the Company may assign or delegate some or all its rights or obligations to other members of the Company Group. Notwithstanding the foregoing, either party may assign the Contract in its entirety, including without limitation all Customer Agreements, without consent of the other party, to a corporate affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Customer agrees to keep Customer’s billing and contact information current at all times by notifying the Company of any changes. Any purported assignment in violation of this section is void. A party’s sole remedy for any purported assignment by the other party in breach of this section will be, at the non-assigning party’s election, termination of the Contract upon written notice to the assigning party. In the event of such a termination of Contract by Customer, the Company will refund Customer any prepaid fees covering the remainder of the term of all subscriptions under the Contract after the effective date of termination. Subject to the foregoing, the Contract will bind and inure to the benefit of the parties and their respective successors and permitted assigns.
Jurisdiction and Governing Law. The Customer irrevocably agrees that all actions or proceedings arising out of, from or related to the Contract shall be litigated in local, state or federal courts having situs within the State of California and shall be venued in the county of Santa Barbara or in the federal courts of the Southern District of California. The Customer further hereby consents and submits to the exclusive personal jurisdiction and the venue of any applicable local, state or federal courts located within said state and hereby waives any right to transfer or change the jurisdiction or venue of any such litigation. All actions or proceedings arising out of, from or related to the Contract shall be governed, construed, and controlled by application of the laws of the State of Delaware, as such laws apply to contracts between Delaware residents performed entirely within Delaware, excluding the United Nations Convention on Contracts for the International Sale of Goods, as to interpretation, enforcement, validity, construction, effect and in all other respects. If any legal action is brought to enforce this Contract, except as may be otherwise expressly set forth herein, the prevailing party will be entitled to recover its reasonable costs and attorney’s fees.
Entire Agreement. The Contract, including without limitation these Customer Terms of Service and all pages referenced herein and any Customer 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, with respect to the Customer and the Administrator, the Contract supersedes the terms of any other online agreement electronically accepted by the Customer, the Administrator, or any Authorized Users. However, to the extent of any conflict or inconsistency between the provisions in any Customer Agreement and the Customer Terms of Service and any other documents or pages referenced herein, the following order of precedence will apply: (1) the terms of any Customer Agreement, if any; (2) the Customer Terms of Service; (3) the User Terms; and (4) finally any other documents or pages referenced in the Customer Terms of Service or the User Terms. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order, vendor onboarding process or web portal, or any other Customer order documentation (excluding any fully executed Customer Agreement) will be incorporated into or form any part of the Contract, and all such terms or conditions shall be deemed to be null and void.