6.2 We may revise these Terms or any additional terms and conditions which are relevant to a particular Service from time-to-time to reflect changes in the law or to the Products or Services. We will post the revised terms on our Website with a “last updated” date at the top of the Terms. PLEASE REVIEW THE WEBSITE ON A REGULAR BASIS TO OBTAIN TIMELY NOTICE OF ANY REVISIONS. IF YOU CONTINUE TO USE THE SERVICES AFTER THE REVISIONS TAKE EFFECT, YOU AGREE TO BE BOUND BY THE REVISED TERMS. You agree that we shall not be liable to you or to any third party for any modification of the Terms.

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6.3 You agree to receive electronically all communications, agreements, and notices that we provide in connection with any of our Services (“Communications”), including by e-mail, text, in-app notifications, or by posting them on the Website or through any of our Services. You agree that all Communications that we provide to you electronically satisfy any legal requirement that such Communications be in writing and you agree to keep your account contact information current.

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7. Definitions Used in Connection with Subscription Plan Services.

“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 by or through our Services. “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. “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, liabilities, 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 Companies. “Permitted Use” means any use Services solely in or for Customer internal business operations, which includes Services to and on behalf of Customer clients. “Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association or other entity. “Company 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 Company or its designee to disable Customer’s access to or use of Products, Services or the Subscription Services automatically with the passage of time or under the positive control of Company or its designee. “Company Materials” means the Product, Information, Service Software, specifications, documentation and Company 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 Company or any subcontractor in connection with the Products or Services or otherwise comprise or relate to the Subscription Services or Company Systems. “Company Systems” means the information technology infrastructure used by or on behalf of Company in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Company or through the use of third-party services. “Representatives” means, with respect to a party, that party’s employees, officers, directors, consultants, agents, independent contractors, service Companies, and legal advisors. “Service Software” means the Company software application or applications and any third-party or other software, and all new versions, updates, revisions, improvements and modifications of the foregoing, that Company provides remote access to and use of as part of Services. “Third Party Materials” means materials and information, in any form or medium, including any software, documents, data, content, specifications, products, equipment or components of or relating to the Services that are not proprietary to Company.

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8. Subscription Services.

8.1 Service and System Control. Except as otherwise expressly provided in these Terms, as between the parties: (a) Company has and will retain sole control over the operation, provision, maintenance and management of the Subscription Services and Company Materials, including the: (i) Company Systems; (ii) selection, deployment, modification and replacement of the Service Software; and (iv) performance of Service maintenance, upgrades, corrections and repairs; and (b) Customer has and will retain sole control 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 Subscription Services and Company Materials by any Person by or through the Customer Systems or any other means controlled by Customer, including any: (i) information, instructions or materials provided by any of them to the Subscription Services or Company; (ii) results obtained from any use of the Subscription Services or Company Materials; and (iii) conclusions, decisions or actions based on such use.

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8.2 Changes. Company reserves the right, in its sole discretion, to make any changes to the Subscription Services and Company Materials that it deems necessary or useful to: (a) maintain or enhance (i) the quality or delivery of Company’s services to its customers, (ii) the competitive strength of or market for Company’s services or (iii) the Subscription Services’ cost efficiency or performance; or (b) to comply with applicable Law.

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8.3 Suspension or Termination of Services. Company may, directly or indirectly, and by use of a Company Disabling Device or any other lawful means, suspend, terminate or otherwise deny Customer’s or any other Person’s access to or use of all or any part of the Subscription Services or Company Materials, without incurring any resulting obligation or liability, if: (a) Company receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires Company to do so; or (b) Company believes, in its good faith and reasonable discretion, that: (i) Customer has failed to comply with, any material term of these Terms,; (ii)accessed or used the Subscription Services beyond the scope of the rights granted or for a purpose not authorized under these Terms; (iii) Customer 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 Subscription Services; or (iv) the term of the Subscription Services expires or is terminated. This Section does not limit any of Company’s other rights or remedies, whether at law, in equity or under these Terms.

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9. Authorization and Customer Restrictions.

9.1 Authorization. Subject to and conditioned on Customer’s payment of the Fees (as applicable when Customer signs up for a Product, Service or Subscription Service) and compliance and performance in accordance with all other terms and conditions of these Terms, Company hereby authorizes Customer to access and use, during the Term, the Product, Service or Subscription Services and such Company Materials as Company may supply or make available to Customer solely for the Permitted Use, on the conditions and limitations set forth in these Terms. This authorization is non-exclusive and non-transferable.

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9.2 Reservation of Rights. Nothing in these Terms grants any right, title or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Product, Service or Subscription Services, Company Materials or Third-Party Materials, whether expressly, by implication, estoppel or otherwise. All right, title and interest in and to the Product, Service or Subscription Services, the Company Materials and the Third-Party Materials are and will remain with Company and the respective rights holders in the Third-Party Materials.

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9.3 Authorization Limitations and Restrictions. Customer shall not, and shall not permit any other Person to, access or use the Product, Service or Subscription Services or Company Materials except as expressly permitted by these Terms 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 these Terms expressly permits: (a) copy, modify or create derivative works or improvements of the Product, Service or Subscription Services or Company Materials; (b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any Product, Service or Subscription Services or Company 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; (c) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Product, Service or Subscription Services or Company Materials, in whole or in part; (d) bypass or breach any security device or protection used by the Product, Service or Subscription Services or Company Materials or access or use the Product, Service or Subscription Services or Company Materials other than by Customer; (e) input, upload, transmit or otherwise provide to or through the Product, Service or Subscription Services or Company Systems, any information or materials that are unlawful or injurious, or contain, transmit or activate any harmful code; (f) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Product, Service or Subscription Services, Company Systems or Company’s provision of services to any third party, in whole or in part; (g) 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 Product, Service or Subscription Services or Company Materials, including any copy thereof; (h) access or use the Product, Service or Subscription Services or Company 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 or that violates any applicable Law; (i) access or use the Product, Service or Subscription Services or Company Materials for purposes of competitive analysis of the Product, Service or Subscription Services or Company Materials, the development, provision or use of a competing software service or product or any other purpose that is intended for the Company’s detriment or commercial disadvantage; or (j) otherwise access or use the Product, Service or Subscription Services or Company Materials beyond the scope of the authorization granted herein.

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10. Fees; Payment Terms.

10.1 Fees. Customer shall pay Company the stated fees, including per project and any fee associated with subscription services including any product type fees or payment terms Customer chooses (collectively known as “Fees”).

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10.2 Taxes. All Fees and other amounts payable by Customer are exclusive of taxes and related assessments. Customer is responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Company income.

 

10.3 Payment. Fees will be charged to the credit card or payment method used by Customer when purchasing a product type or any of our Services on flat fee, per project or a recurring fee basis in the amount specified by Company at the time Customer makes the purchase for Services. Customer will not receive any advance notice of this payment. The prices, features, and options of the Services depend on the Services selected. Company does not represent or warrant that a particular product type, subscription or any of our Services will be offered indefinitely and reserves the right to change the prices for or alter the features and options in a particular product type, subscription or any of our Services without prior notice.

 

10.4 Recurring Charges. When you purchase Subscription Services, you must provide accurate and complete information for a valid payment method, such as a credit card, that you are authorized to use. Customer must promptly notify us of any change in its invoicing address and must update its Account with any changes related to its payment method. BY COMPLETING REGISTRATION FOR A SUBSCRIPTION SERVICE, CUSTOMER AUTHORIZES COMPANY OR ITS AGENT TO CHARGE ITS PAYMENT METHOD ON A RECURRING BASIS (“AUTHORIZATION”) FOR: (a) THE APPLICABLE SUBSCRIPTION SERVICE CHARGES; (b) ANY AND ALL APPLICABLE TAXES; AND (c) ANY OTHER CHARGES INCURRED IN CONNECTION WITH CUSTOMER’S USE OF THE SUBSCRIPTION SERVICES. The Authorization continues through the applicable term and any renewal term (as defined herein, below) until Customer cancels as set forth in these Terms.

 

10.5 Late Payment. If Customer’s automatic recurring payment is declined or unable to be processed for any reason, Company may in its sole discretion may cancel the Subscription Service or permanently restrict Customer’s ability to use a certain payment method if that payment method fails. If Customer fails to make any payment when due then, commencing five (5) business days after Customer’s receipt of a default notice, in addition to all other remedies that may be available:  Customer shall reimburse Company for all costs reasonably incurred by Company in collecting any late payments including bank fees, attorneys’ fees, court costs and collection agency fees.  All amounts payable to Company shall be paid by Customer to Company in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable Law).

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11. Intellectual Property Rights.

11.1 Products, Services and Subscription Services and Company Materials and all rights to title and interest in the Product, Service or Subscription Services and Company Materials, including all Intellectual Property Rights therein, are and will remain with Company and the respective rights holders in the Third-Party Materials. Customer has no right, license or authorization with respect to any of the Products, Services or Subscription Services or Company Materials (including Third-Party Materials) except as expressly set forth herein or the applicable third-party license, in each case subject to the terms contained herein, all other rights in and to Products, Services or Subscription Services and Company Materials (including Third-Party Materials) are expressly reserved by Company and the respective third-party licensors or representatives and affiliates.

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11.2 Customer Data. As between Customer and Company, Customer is and will remain the sole and exclusive owner of all right, title and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted herein. 11.3 Consent to Use Customer Data. Customer hereby irrevocably grants all such rights and permissions in or relating to

Customer Data: (a) to Company, its subcontractors and Company personnel as are necessary or useful to perform the Services for Customer; and (b) to Company as are necessary or useful to enforce these Terms and exercise its rights and perform its obligations to Customer hereunder.

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12. Confidentiality.

12.1 Confidential Information. In connection with the use of Products, Services and Subscription Services, each party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other party (as the “Receiving Party”). “Confidential Information” means information in any form or medium (whether oral, written, electronic or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations.

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12.2 Exclusions. Confidential Information does not include information that (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with these Terms; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with these Terms; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.

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12.3 Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall (a) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with these Terms; (b) except as may be permitted by and subject to its compliance with Section 12.4, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with these Terms; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section; (c) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care; and (d) ensure its Representatives’ compliance with, and be responsible and liable for any of its Representatives’ non-compliance with, the terms of this Section.

 

12.4 Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under these Confidentiality terms; and (b) provide reasonable assistance to the Disclosing Party in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose.

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13. Term and Termination of Subscription Service.

13.1 Term. The term of any Subscription Services will be month to month, automatically renewing on a monthly basis, unless otherwise agreed upon between Customer and Company in writing.

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13.2 Termination. In addition to any other express termination right set forth elsewhere in these Terms: (a) Company may terminate any agreement for Subscription Services, effective on written notice to Customer, if Customer fails to pay any applicable amount when due hereunder, and such failure continues more than ten (10) days after Company’s delivery of written notice.

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14. Disclaimer of Warranties.

14.1 DISCLAIMER OF WARRANTIES. ALL SERVICES AND COMPANY MATERIALS ARE PROVIDED “AS IS” AND COMPANY HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND COMPANY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, COMPANY MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR COMPANY MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, BE DELIVERED AS EXPECTED, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. 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.

If you are a California resident, you hereby waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” This release includes the criminal acts of others. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of these limitations may not apply to you.