Terms and Conditions

 

Effective Date: January 1, 2021

These Terms of Service (Terms) create an agreement (the Agreement) between you and the owner and provider of this software and applicable affiliates (Service Provider, We, Our or Us) regarding your access to and use of the subject services and associated software (Services). All users must accept this Agreement before using the Services. If you accept this Agreement, it will bind you and Us.  If you do not accept to this Agreement, please click “Cancel” or “Back” and do not use the Services.  You and We may execute additional written agreements governing your use of the Services and supplement or amend the Terms (Ancillary Agreements) that become part of the Agreement.

You indicate your agreement to these Terms by clicking on a button indicating your acceptance of these Terms, by executing a document that references them, or by using the Services.

If you will use the Services on behalf of an organization, you represent that you have the authority to do so. In such case, “you” and “your” will refer to that organization.

  1.   Scope of Agreement

This Agreement governs your access to and use of the Services. If you purchased the Services, We agree to provide you the Services as provided in these Terms. If you have not purchased the Services, you agree that We may suspend or terminate your access to and use of the Services or this Agreement at any time without notice, for any reason.

  2.   Use of the Services

During the term of this Agreement, you may access and use the Services only as permitted in this Agreement. We retain all right, title, and interest in and to the Services, including without limitation all software used to provide the Services and all logos, service marks, and trademarks reproduced through the Services, and this Agreement does not grant you any intellectual property rights in the Services. You will not resell, reframe, distribute, use on a timeshare, outsourced, or service bureau basis, or otherwise directly commercialize the sale or lease of the use of the Services. You may need to provide additional information in order to register for or use certain Services. You warrant that the information you provide during the registration process is accurate.

  3.   Beta Services

We may offer you the opportunity to use and evaluate a “beta” version of the Services (Beta Services) to get your evaluation and feedback (Feedback). Beta Services may contain bugs, errors and other problems and you accept the Beta Services “AS-IS.” We give you no warranty of any kind and are not responsible for any sort of problems or issues related to your use of a Beta Services. You may be asked to provide Feedback to use Beta Services. We make no representations, promises or guarantees that the Beta Services will ever be generally released. We may suspend or terminate access to the Beta Service and delete any Content or data on the Beta Service without any liability to you.  You grant us a perpetual, royalty-free license to use Feedback and the feedback collected under Section 6.2 of these.

  4.   Fees and Payments

  4.1. Distributers. We distribute the Services directly to end users and We may distribute though resellers who enter into a contract with you.  This Section 4 applies only if We have a direct contractual relationship with you to provide the Services to you.  If you purchased the Services through a reseller, then your payment obligations will be governed by your contract with the reseller. 

  4.2. Fees for Services. You agree to pay to Us any fees for each Service you purchase or use in accordance with the pricing and payment terms presented to you for that Service. Where applicable, you will be billed using the billing method agreed between you and Us. Fees paid by you are non-refundable, except as provided in these Terms, any applicable Ancillary Agreements, or when required by law.

  4.3. Subscriptions. Some of our Services are billed on a subscription basis (Subscriptions). This means that you will be billed in advance on a recurring, periodic basis (a billing cycle). Billing cycles will be agreed to by you and Us in advance. Your Subscription will automatically renew at the end of each billing cycle unless you cancel auto-renewal through your online account management page, or by contacting our customer support team. You may cancel auto-renewal on your Subscription at any time, in which case your Subscription will continue until the end of that billing cycle before terminating. You may cancel auto-renewal on your Subscription immediately after the Subscription starts if you do not want it to renew.

  4.4. Taxes. Unless otherwise stated, you are responsible for any taxes (other than Our income tax) or duties associated with the sale of the Services, including any related penalties or interest (collectively, Taxes). You will pay Us for the Services without any reduction for Taxes. If We are obliged to collect or pay Taxes, We will send you an invoice for the Taxes, unless you provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority or other documentation providing evidence that no tax should be charged. If you are required by law to withhold any Taxes from your payments to Us, you must provide Us with an official tax receipt or other appropriate documentation to support such payments.

  4.5. Price Changes. Except as We agree in any Ancillary Documents, We may change the fees charged for the Services at any time, provided that, for Services billed on a subscription basis, the change will become effective only at the end of the then-current billing cycle of your Subscription (or as otherwise provided in an Ancillary Agreement). We will provide you with reasonable prior written notice of any change in fees to give you an opportunity to cancel your Subscription before the change becomes effective.

  5.   Privacy

  5.1. Privacy. In the course of using the Services, you may submit content to Us (including your personal data and the personal data of others) or third parties may submit content to you through the Services (your Content). We know that by giving us your Content, you are trusting us to treat it appropriately. Our Privacy Policy, together with any Service-specific data use policies, privacy statements, and privacy notices (collectively, privacy policies), detail how we treat your Content and personal data and We agree to adhere to those privacy policies. You in turn agree that We may use and share your Content in accordance with our privacy policies.

5.2. Confidentiality. We will treat your Content as confidential information and only use and disclose it in accordance with these Terms (including our privacy policies). However, your Content is not regarded as confidential information if such Content: (a) is or becomes public (other than through breach of these Terms by Us); (b) was lawfully known to Us before receiving it from you; (c) is received by Us from a third party without knowledge of breach of any obligation owed to you; or (d) was independently developed by Us without reference to your Content. We may disclose your Content when required by law or legal process, but only after We, if permitted by law, use commercially reasonable efforts to notify you to give you the opportunity to challenge the requirement to disclose.

5.3. Security. We will store and process your Content in a manner consistent with industry security standards. We have implemented appropriate technical, organizational, and administrative systems, policies, and procedures designed to help ensure the security, integrity, and confidentiality of your Content and to mitigate the risk of unauthorized access to or use of your Content.

  6.   Your Content

  6.1. You Retain Ownership of Your Content. You retain ownership of all of your intellectual property rights in your Content. We do not claim ownership over any of your Content. These Terms do not grant us any licenses or rights to your Content except for the limited rights needed for us to provide the Services, and as otherwise described in these Terms.

  6.2. Limited License to Your Content. You grant Us a worldwide, royalty free license to use, reproduce, distribute, modify, adapt, create derivative works, make publicly available (only to the extent it is de-identified and aggregated), and otherwise exploit your Content, but only for the limited purposes of providing the Services to you and as otherwise permitted by Our privacy policies. This license for such limited purposes continues even after you stop using Our Services, with respect to aggregate and de-identified data derived from your Content and any residual backup copies of your Content made in the ordinary course of Our business. This license also extends to any trusted third parties we work with to the extent necessary to provide the Services to you. If you provide Us with feedback about the Services, we may use your feedback without any obligation to you.  Unless you notify us in writing, this limited license also permits us to use de-identified information you provide for purposes of “benchmarking” or collecting and distributing statistical data so long as We do not identify you as the source of any of the benchmarking or statistical data.

  6.3. Customer Listings.  If you purchased the Services directly from Us, then We may identify you (by name and logo) as Our customer on Our website and on other promotional materials. Any goodwill arising from the use of your name and logo will inure to your benefit. If you purchased the Services though a reseller, then this Section does not apply to you.

  6.4. Copyright Claims (DMCA Notices). We respond to notices of alleged copyright infringement in accordance with the U.S. Digital Millennium Copyright Act (DMCA). If you believe that your work has been exploited in a way that constitutes copyright infringement, you may notify Our agent for claims of copyright infringement.

  6.5. Other IP Claims. We respect the intellectual property rights of others, and we expect our users to do the same. If you believe We are infringing on your intellectual property rights, you may report it to us. Claims of copyright infringement should follow the DMCA process outlined in these Terms, or any equivalent process available under local law.

  7.   Service Provider IP

Neither these Terms nor your use of the Services grants you license to use or ownership in the Services or the content you access through the Services (other than your Content) or any intellectual property of any kind owned by or licensed to Us including Our trademarks, service marks, or copyrighted material or trade secrets.

  8.   Account Management

  8.1. Keep Your Password Secure. If We have issued you an account in connection with your use of the Services, you are responsible for safeguarding your password and any other credentials used to access that account. You, and not Us, are responsible for any activity occurring in your account (other than activity that We are directly responsible for that is not performed in accordance with your instructions), whether you authorized that activity. If you become aware of any unauthorized access to your account, you should notify Us immediately. Accounts may not be shared and may only be used by one individual per account.

  8.2. Keep Your Details Accurate. We occasionally send notices to the email address registered with your account. You must keep your email address and, where applicable, your contact details and payment details associated with your account current and accurate. Accounts are controlled by the entity whose email address is registered with the account.

  8.3. Backup. You are responsible for maintaining, protecting, and making backups of your Content. To the extent permitted by applicable law, Service Provider will not be liable for any failure to store, or for loss or corruption of, your Content.

  9.   User Requirements

  9.1. Legal Status. You warrant that you are validly formed and existing under the laws of your jurisdiction of formation, that you have full power and authority to enter into these Terms, and that you have duly authorized your agent to bind you to these Terms. You represent and warrant that you will comply with all laws and regulations applicable to your use of the Services.

  9.2. Embargoes. You may only use the Services if you are not barred under any applicable laws from doing so. If you are located in a country embargoed by United States or other applicable law from receiving the Services, or are on the U.S. Department of Commerce’s Denied Persons List or Entity List, or the U.S. Treasury Department’s list of Specially Designated Nationals, you are not permitted to purchase any paid Services from Us. You will ensure that: (a) your end users do not use the Services in violation of any export restriction or embargo by the United States; and (b) you do not provide access to the Services to persons or entities on any of the foregoing lists.

  10.   Acceptable Uses

  10.1. Legal Compliance. You must use the Services in compliance with, and only as permitted by, applicable law.

 

  10.2. Your Responsibilities. You are responsible for your conduct, Content, and communications with others while using the Services. You must comply with the following requirements when using the Services:

(a) You may not purchase, use, or access the Services for the purpose of building a competitive product or service or for any other competitive purposes.

(b) You may not misuse our Services by interfering with their normal operation, or attempting to access them using a method other than through the interfaces and instructions We provide.

(c) You may not circumvent or attempt to circumvent any limitations that We impose on your account.

(d) Unless We authorize in writing, you may not probe, scan, or test the vulnerability of any Service Provider system or network.

(e) Unless We authorize in writing, you may not use any automated system or software to extract or scrape data from the websites or other interfaces through which we make our Services available.

(f) Unless permitted by applicable law, you may not allow unauthorized personnel access to  or reverse engineer, the Services, or attempt to do so.

(g) You may not transmit any viruses, malware, or other types of malicious software, or links to such software, through the Services.

(h) You may not use the Services to infringe the intellectual property rights of others, or to commit an unlawful activity.

 

(i) Unless We authorize in writing, you may not resell or lease the Services.

 

(j) If your use of the Services requires you to comply with industry-specific regulations applicable to such use, you will be solely responsible for such compliance, unless We have agreed with you otherwise. You may not use the Services in a way that would subject Us to those industry-specific regulations without obtaining Our prior written agreement.

  11.   Suspension and Termination of Services

  11.1. By You. If you terminate a Subscription in the middle of a billing cycle, you will not receive a refund for any period of time you did not use in that billing cycle unless you are terminating for one of the following reasons: (a) we materially breached these Terms and failed to cure that breach within 30 days after you have so notified us in writing or (b) a refund is required by law.

  11.2. By Service Provider. We may terminate your Subscription at the end of a billing cycle by providing at least 30 days’ prior written notice to you. We may terminate your Subscription for any reason by providing at least 90 days’ written notice to you and will provide a pro-rata refund for any period of time you did not use in that billing cycle. We may suspend performance or terminate your Subscription for any of the following reasons: (a) you materially breached these Terms and failed to cure that breach within 30 days after We so notified you in writing; (b) you cease your business operations or become subject to insolvency proceedings and the proceedings are not dismissed within 90 days; or (c) you fail to pay fees for 30 days past the due date. Additionally, We may limit or suspend the Services to you if you fail to comply with these Terms, or if you use the Services in a way that causes legal liability to us or disrupts others’ use of the Services. We may also suspend providing the Services to you if we are investigating suspected misconduct by you. If we limit, suspend, or terminate the Services you receive, We will endeavor to give you advanced notice and an opportunity to export a copy of your Content from that Service. However, there may be time sensitive situations where We may decide that we need to take immediate action without notice. We will use commercially reasonable efforts to narrow the scope and duration of any limitation or suspension under this Section as is needed to resolve the issue that prompted such action. We have no obligation to retain your Content upon termination of the applicable Service.

  11.3 Termination if you purchased the Services from a Reseller. If you purchased the Services through a reseller, then Sections 11.1 and 11.2 do not apply to you; rather, your rights and obligations to terminate and receive a refund are governed by your agreement with the reseller.

  12.   Changes and Updates

  12.1. Changes to Terms. We may change these Terms at any time for a variety of reasons, such as to reflect changes in applicable law or updates to Services, and to account for new Services or functionality. The most current version of these Terms will always be posted on Our website. Notice of amendments may be posted to Our blog or upon your login to your account. Changes will be effective no sooner than the day they are publicly posted. In order for certain changes to become effective, applicable law may require Us to obtain your consent to such changes, or to provide you with sufficient advance notice of them. If you do not want to agree to any changes made to the Terms for a Service, you should stop using that Service, because by continuing to use the Services you indicate your agreement to be bound by the updated terms.

 

  12.2. Changes to Services. We constantly change and improve the Services. We may add, alter, or remove functionality from a Service at any time without prior notice. We may also limit, suspend, or discontinue a Service at its discretion. If We discontinue a Service, we will give you reasonable advance notice to provide you with an opportunity to export a copy of your Content from that Service. We may remove content from the Services at any time in Our sole discretion, although we will endeavor to notify you before we do that if it materially impacts you and if practicable under the circumstances.

  13.   Disclaimers and Limitations of Liability

  13.1. Disclaimers. While it is in Our interest to provide you with a great experience when using the Services, there are certain things we do not promise about them. We try to keep our online Services up, but they may be unavailable from time to time for various reasons. EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED “AS IS” AND SERVICE PROVIDER WE DO NOT MAKE WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OR ANY REPRESENTATIONS REGARDING AVAILABILITY, RELIABILITY, OR ACCURACY OF THE SERVICES.

  13.2. Exclusion of Certain Liability. TO THE EXTENT PERMITTED BY APPLICABLE LAW, WE, OUR AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS, AND LICENSORS WILL NOT BE LIABLE FOR (A) ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES WHATSOEVER, OR (B) LOSS OF USE, DATA, BUSINESS, REVENUES, OR PROFITS (IN EACH CASE WHETHER DIRECT OR INDIRECT), ARISING OUT OF OR IN CONNECTION WITH THE SERVICES AND THESE TERMS, AND WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, EVEN IF SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

  13.3. Limitation of Liability. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE AGGREGATE LIABILITY OF EACH OF US, OUR AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS, AND LICENSORS ARISING OUT OF OR IN CONNECTION WITH THE SERVICES AND THESE TERMS WILL NOT EXCEED THE LESSER OF: (A) THE AMOUNTS PAID BY YOU TO US FOR USE OF THE SERVICES AT ISSUE DURING THE MONTH PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY; AND (B) $1,000.

  13.4. Indemnity. You will indemnify and hold harmless Us and Our affiliates, officers, agents, and employees from all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of a third-party claim regarding or in connection with your use of the Services or your Content or breach of these Terms.

  14.   Contracting Entity

  14.1. Who you are contracting with. Unless otherwise specified in relation to a particular Service, the Services are provided by, and you are contracting with, Us.

  14.2. Service Provider. For any Service We provide, the following provisions will apply to any terms governing that Service:

  • Governing Law. Those terms are governed by the laws of the State of Texas (without regard to its conflict of laws provisions).

  • Jurisdiction. Except if prohibited by applicable law, each party submits to the exclusive jurisdiction of the state courts located in Dallas County, Texas, and the federal courts located in the Northern District of Texas with respect to the subject matter of those terms.

  15.   Other Terms

  15.1. Assignment. You may not assign your rights or obligations under these Terms without Our prior written consent, which may be withheld in Service Provider’s sole discretion. Any attempted assignment in violation of this provision is void.  We may assign these Terms at any time without notice to you as long as Our assignee agrees to perform our obligations under these Terms.

  15.2. Entire Agreement. Except as provided below, these Terms and any Ancillary Agreement constitute the entire agreement between you and Us, and they supersede any other prior or contemporaneous agreements, terms and conditions, written or oral concerning its subject matter. Any terms and conditions appearing on a purchase order or similar document issued by you do not apply to the Services, do not override or form a part of these Terms, and are void.  Notwithstanding the foregoing, if you and Service Provider execute an MSA for advisory or consulting services, the terms of the MSA will control the parties’ rights and obligations regarding the services covered by the MSA.

  15.3. Independent Contractors. The relationship between you and Us is that of independent contractors, and not legal partners, employees, or agents.

  15.4. Interpretation. The use of the terms “includes”, “including”, “such as”, and similar terms, will be deemed not to limit what else might be included.

  15.5. No Waiver. A party’s failure or delay to enforce a provision under these Terms is not a waiver of its right to do so later.

 

  15.6. Precedence. If there is a conflict between these Terms and the provisions of an Ancillary Agreement, the provisions of the Ancillary Agreement will control.

  15.7. Severability. If any provision of these Terms is determined to be unenforceable by a court of competent jurisdiction, that provision will be severed and the remainder of terms will remain in full effect.

 

  15.8. Third Party Beneficiaries. There are no third party beneficiaries to these Terms.

 

  15.9. Survival. The following sections will survive the termination of these Terms: 4, 5, 6.2, 6.3, 13, 14, and 15.

 

  15.10. Dispute Resolution & Arbitration.  If a dispute arises out of or relates to this Agreement or any breach thereof, and if the dispute cannot be settled through negotiation, the parties agree first to try in good faith to settle the dispute by mediation before resorting to arbitration, litigation, or some other dispute resolution procedure. Any controversy or claim arising out of or relating to this Agreement that is not settled by mediation will be settled by binding arbitration. The arbitration shall be conducted by one arbitrator in Dallas County, Texas using the then published Commercial Arbitration Rules and Mediation Procedures of the American Arbitration Association (“AAA”), as modified by this Agreement.  Although the parties agree to use AAA rules, the arbitration will not be administered by the AAA but shall be administered by the arbitrator.  If the parties are not able to agree upon selection of an arbitrator within 20 days of service of a demand for arbitration, the arbitrator shall be selected by a state or federal court judge in Dallas County, Texas.  The arbitrator may not award punitive, consequential, special, or indirect damages, but may award injunctive and other equitable relief. The arbitrator shall award interest from the time of the breach to the time of award at the rate set by Texas law for prejudgment interest.