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Terms of service

Last updated: 15 June 2020


Please read these terms of service and Our Privacy Notice (together, these “Terms”) carefully as they form a contract between You and Us and govern use of and access to the Service(s) and Websites by You, Your Affiliates, Users and End-Users. In the event of a conflict between these terms of service and Our Privacy Notice, these terms of service shall prevail.

By accessing or using the Service(s) or Websites, or authorizing or permitting any User or End-User to access or use the Service(s) or Websites, You agree to be bound by these Terms. If You are entering into these Terms on behalf of a company, organization or another legal entity (an “Entity”), You are agreeing to these Terms for that Entity and representing to Us that You have the authority to bind such Entity and its Affiliates to these Terms, in which case the terms, “You", “Your” or related capitalized terms used herein shall refer to such Entity and its Affiliates. If You do not have such authority, or if You do not agree with these Terms, You must not accept these Terms and may not access or use the Service(s) or Websites.

You, as an individual, must be 18 years or older to access or use the Websites and the Service(s).

1. YOUR RIGHTS

1.1 These Terms are applicable during Your free/paid subscription to the Service(s) through a Service Plan of Your choice.

1.2 Using Our Service(s): Subject to Your compliance with the Terms and solely during the Subscription Term, You have the limited, non-exclusive, and revocable right to access and use the Service(s) for Your internal business purposes. You shall be responsible for use of the Service(s) through Your Account by any third parties. You may subscribe to one or more of the Service(s). They may be subject to separate and distinct Service Plans.

1.3 Using our APIs: Where applicable, our APIs must be used according to the API Policies We implement in this regard.

2. YOUR RESPONSIBILITIES

2.1 Your Account: Subject to term limits and/or any limitation on the number of individual Users available under the Service Plan to which You subscribed, access and use of the Service(s) is restricted to the specified term and the number of individual users permitted under Your subscription to the Service(s). Each User shall be identified using unique login information such as usernames and passwords (“User Login”) and such User Login shall be used only by one individual. If You are a managed service provider and You wish to use the same User Login across Accounts that You manage for Your clients, You acknowledge that it is Your sole responsibility to obtain necessary consents from such clients. Without prejudice to Our obligations under Sections 9 and 10 of these Terms, You are solely responsible for the confidentiality of Service Data and User Login at Your end. You should, therefore, not share Your User Login with any third parties. In any event, unless You notify Us of any unauthorized use or suspicious activity in Your Account, You are responsible for all activities that occur under Your Account. Group Companies will not be liable for any damage or loss that may result from Your failure to protect Your login information, including Your password. Without limiting the foregoing, You are solely responsible for ensuring that Your use of the Service(s) to store and transmit Service Data is compliant with all applicable laws and regulations. You also maintain all responsibility for determining whether the Service(s) or the information generated thereby is accurate or sufficient for Your purposes.

2.2 Your use of the Service(s): You agree not to (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service(s) available to any third party, other than Users and End-Users in furtherance of Your internal business purposes as expressly permitted by these Terms; (b) use the Service(s) to Process data on behalf of any third party other than Your Users and End- Customers; (c) modify, adapt, or hack the Service(s) or otherwise attempt to gain or gain unauthorized access to the Service(s) or related systems or networks; (d) falsely imply any sponsorship or association with Us; (e) use the Service(s) in any unlawful manner, including but not limited to violation of any person’s privacy rights; (f) use the Service(s) to send unsolicited communications, junk mail, spam, pyramid schemes or other forms of duplicative or unsolicited messages; (g) use the Service(s) to store or transmit any content that infringes upon any person’s intellectual property rights; (h) use the Service(s) in any manner that interferes with or disrupts the integrity or performance of the Service(s) and its components; (i) attempt to decipher, decompile, reverse engineer, disassemble, reproduce, or copy or otherwise access or discover the source code or underlying program of any Software making up the Service(s); (j) use the Service(s) to knowingly post, transmit, upload, link to, send or store any content that is unlawful, racist, hateful, abusive, libelous, obscene, or discriminatory; (k) use the Service(s) to store or transmit any “protected health information” as that term is defined in 45 C.F.R. 160.103 unless expressly agreed to otherwise in writing by Us; (l) use the Service(s) to knowingly post, transmit, upload, link to, send or store any viruses, malware, Trojan horses, time bombs, or any other similar harmful software (“Malicious Software”); (m) establish a link to Our Websites in such a way as to suggest any form of association, approval or endorsement on Our part where none exists; (n) use the Service(s) for the purposes of cookie tracking, ad exchanges, ad networks, data brokerages, or sending electronic communications (including e-mail) in violation of applicable law; (o) use of the Service(s) for any purpose prohibited by applicable export laws and regulations, including without limitation, nuclear, chemical, or biological weapons proliferation, or development of missile technology; (p) try to use, or use the Service(s) in violation of these Terms.

2.3 You shall be responsible for any loss of data or attempted or actual access or use of the Service(s) through Your Account in violation of these Terms.

2.4 If We inform You that a specified activity or purpose is prohibited with respect to the Service(s), You will ensure that You immediately cease use of the Service(s) for such prohibited activity or purpose.

3. ACCESS TO THE SERVICE(S)

3.1 You may not be able to access or use the Service(s) (a) during planned downtime for upgrades and maintenance to the Service(s) (of which We will use commercially reasonable efforts to notify You in advance through Our Service(s)) (“Planned Downtime”), or (b) during any unavailability caused by circumstances beyond Our reasonable control, such as, but not limited to, acts of God, acts of government, acts of terror or civil unrest, technical failures beyond Our reasonable control (including, without limitation, inability to access the internet), or acts undertaken by third parties, including without limitation, distributed denial of service attacks.

3.2 We will use commercially reasonable efforts to schedule Planned Downtime for weekends (Pacific Time zone) and other off-peak hours.

4. CHANGES TO THE SERVICE(S) AND WEBSITES

4.1 Our Service(s): We may update the Service(s) from time to time and You may receive notifications of such upgrades, enhancements or updates (“Updates”). Any new or modified features added to or augmenting or otherwise modifying the Service(s) or other updates, modifications or enhancements to the Service(s) are also subject to these Terms and We reserve the right to deploy Updates at any time.

4.2 Websites: We may also change content on Our Websites at any time. However, please note that any of the content on Our Websites may be out of date at any given time, and We are under no obligation to update it. For clarity, this sub-section refers to Our Websites excluding the Service(s). We may discontinue or change any part of Our Websites, that does not affect the Service(s), without notifying You.

4.3 Links To Other Sites and Services: Our Websites and Service(s) may contain links to websites, content and resources provided by third parties (“Third Party Links”). These Third Party Links are governed by their own terms and privacy policies and You agree that We have no control over these Third Party Links and are not responsible for Your access or use of these Third Party Links.

5. INTELLECTUAL PROPERTY RIGHTS

5.1 Ownership of IPR: Except for the rights granted to You under Section 1, all rights, title and interest in and to all Our patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights in or related to the Service(s), including the Websites, and any part of it (collectively, “Intellectual Property Rights”) shall belong to and remain exclusively with Us. We are the owner or the licensee of all Intellectual Property Rights in Our Websites, and the content or material published on it. Those works are protected by copyright laws and treaties around the world. You must not use any part of the content on Our Websites for commercial purposes without obtaining a license to do so from Us or Our licensors. Further, We claim no intellectual property rights over the content You upload or provide to the Service(s).

5.2 Grant of License to Us: We shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to incorporate into the Service(s) or Websites or otherwise use any suggestions, enhancement requests, recommendations or other feedback We receive from You.

5.3 Grant of License to You: Our product and service names, and logos used or displayed on the Service(s) or Websites are Our registered or unregistered trademarks (collectively, “Marks”), and You may only use such Marks to identify You as a user of the Service(s) You have subscribed to.

5.4 Reservation of Rights: All rights not expressly provided to You herein are reserved.

6. DATA FROM THIRD PARTY SERVICES

You understand and agree that We have no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party services from where data is integrated to Our Service(s). You understand and agree that We do not provide any warranties whatsoever for those third party services and We are not liable for any damage or loss caused or alleged to be caused by or in connection with Your enablement, access or use of any such third party services, or Your reliance on the privacy practices, data security processes or other policies of such third party services. You understand that We are not responsible for providing technical support for third party services and that We are not responsible for the data hosting and data transfer practices followed by providers of such third party services. To this extent, You shall address any comments, queries, complaints or feedback about such third party services to the respective developers or publishers.

7. BILLING, PLAN MODIFICATIONS AND PAYMENTS

7.1 Subscription Charges: Unless otherwise specified in the Supplementary terms, except if the Service Plan applicable to Your subscription to the Service(s) is free, all charges associated with Your Account (“Subscription Charges”) are due in full and payable in advance, in accordance with Section 7.2, when You subscribe to the Service(s). Unless specified otherwise in a Form, the Subscription Charges are based on the Service Plans You choose and are payable in full until You terminate Your Account in accordance with Section 8. You will receive a receipt upon each receipt of payment by Us. You may also obtain a payment receipt from within the Service(s).

7.2 Payment methods: You may pay the Subscription Charges through Your credit card, or other accepted payment method as specified in a Form. For credit card payments, Your payment is due immediately upon Your receipt of Our invoice. You hereby authorize Us or Our authorized agents, as applicable, to bill Your credit card upon Your subscription to the Service(s) (and any renewal thereof). For payments through other accepted methods, Your payment is due within thirty (30) days of Our invoice date unless otherwise stated in a Form.

7.3 Renewal: Your subscription to the Service(s) will renew automatically for a Subscription Term equivalent in length to the then expiring Subscription Term. Unless otherwise provided for in any Form, the Subscription Charges applicable to Your subscription to the Service(s) for any such subsequent Subscription Term shall be Our standard Subscription Charges for the Service Plan to which You have subscribed as of the time such subsequent Subscription Term commences. You acknowledge and agree that, unless You terminate Your Account in accordance Section 8, Your credit card will be charged automatically for the applicable Subscription Charges.

7.4 We may use a third party service provider to manage credit card and other payment processing; provided, that such service provider is not permitted to store, retain or use Your payment account information except to process Your credit card and other payment information for Us. You must notify Us of any change in Your credit card or other payment account information, by updating Your Account.

7.5 Refunds: Unless otherwise specified in these Terms or a Form or a Service Plan, all Subscription Charges are non-refundable. No refunds shall be issued for partial use or non-use of the Service(s) by You provided however You shall be eligible for a pro-rated refund of the Subscription Charges for the remainder of the Subscription Term if You terminate Your Account as a result of a material breach of these Terms by Us.

7.6. Late Payments/Non-payment of Subscription Charges: We will notify You if We do not receive payment towards the Subscription Charges within the due date for Your Account. For payments made through credit cards, We must receive payments due within a maximum of five (5) days from the date of Our notice and for payments through other accepted methods, We must receive payments within a maximum of fifteen (15) days from the date of Our notice. If We do not receive payment within the foregoing time period, in addition to Our right to other remedies available under law, We may (i) charge an interest for late payment @ 1.5% per month and/or; (ii) suspend Your access to and use of the Service(s) until We receive Your payment towards the Subscription Charges as specified herein and/or; (iii) terminate Your Account in accordance with Section 8.2.

7.7 Upgrades and Downgrades: You may upgrade or downgrade within a Service Plan or between two Service Plans. You understand that downgrading may cause loss of content, features, or capacity of the Service(s) as available to You before downgrading Your Account. We will not be liable for such loss.

If you upgrade anytime, we will apply a pro-rated credit for your existing Service Plan to the purchase of the new Service Plan. Your new Service Plan will become active instantaneously. You can also downgrade at any time, but your changes will not take effect until the start of your next billing cycle. Subsequent months will be charged in full according to the Subscription Charges for the new Service Plan.

If you change your Subscription Term (from quarterly to yearly or vice versa), the dates of the billing cycle for that business will change.

7.8 Applicable Taxes: Unless otherwise stated, the Subscription Charges do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). You are responsible for paying the Taxes that would be levied against You by government authorities. We will invoice You for such Taxes if We believe We have a legal obligation to do so and You agree to pay such Taxes if so invoiced.

7.9 User Benefits: We may, at Our sole discretion, offer You certain benefits such as discounts on Subscription Charges, extension in Subscription Term for no extra payments from You, with regard to the Service(s). These benefits are specific to Your Account and the Service(s) identified while offering these benefits. They are not transferrable. The benefits may have an expiry date. If they do not have an expiry date, they will expire upon completion of twelve (12) months from their date of offer.

8. SUSPENSION AND TERMINATION

8.1 We shall not be liable to You or any other third party for suspension or termination of Your Account or access to and use the Service(s), if such suspension or termination is in accordance with these Terms.

8.2 Suspension and Termination by Us: We may suspend Your access to and use of Your Account or the Service(s) if You are in violation of the Terms. We will notify You of Your activities that violate these Terms and, at Our sole discretion, provide You with a period of fifteen (15) days (“Cure Period”) to cure or cease such activities. If You do not cure or cease such activities within said Cure Period or if We believe that Your breach of these Terms cannot be cured, Your Account shall be terminated. Further, You acknowledge that in the event You do not upgrade to a paid Service Plan within one (1) year from the date of creation of the Business Account or from the date of the last downgrade to a free Service Plan, whichever is later, We may terminate Your Account. All associated Service Data shall be deleted immediately and immediately upon such terminations.

8.3 Termination by You: You may elect to terminate Your Account associated with a specific Business at any time by clicking ‘Delete This Business’ link in the ‘Settings’ page for your Business when You log in to Our Service(s). Notice that no refunds are provided, and a Business with active paid Service Plan will only be terminated at the end of its current active Subscription Term, after which Your credit card will not be charged again. Any associated Service Data shall be retained for a period of 14 days from the date of termination of Your Account beyond which it shall be deleted during the normal course of operation.

Further, You may elect to terminate Your user Account at any time by clicking ‘Delete User Account’ link in the ‘Settings’ page when you log in to Our Service(s), provided that you are no longer an owner of any Business at the time of this deletion request. User related information will be retained for a period of 14 days from the date of termination beyond which it shall be deleted during the normal course of operation.

8.4 Effect of Terminating Your Account:

8.4.1 Data Export: We strongly recommend that You export all Service Data before You terminate Your Account. You can use Export as JPG/CSV features (where available) to export your Service Data. Following the termination of Your Account either by You or Us, unless otherwise specified elsewhere herein or in the Supplemental Terms, Service Data will be deleted in accordance with Sections 8.2 or 8.3 as applicable to You. Service Data cannot be recovered once it is deleted.

8.4.2 Charges: If Your Account is terminated in accordance with Sections 8.2 or 8.3 of these Terms, in addition to other amounts You may owe Us, You must immediately pay any then unpaid Subscription Charges associated with the remainder of such Subscription Term, unless waived by Us in writing. This amount will not be payable by You , or You may be eligible for a pro-rated refund of the Subscription Charges, as the case may be, in the event You terminate Your subscription to the Service(s) or terminate Your Account as a result of a material breach of these Terms by Us, provided that You provide advance notice of such breach to Us and afford Us not less than thirty (30) days to reasonably cure such breach.

9. CONFIDENTIALITY

9.1 If You choose, or You are provided with, a user identification code, password or any other piece of information as part of Our security procedures, You must treat such information as confidential. You must not disclose it to any third party. We have the right to disable any user identification code or password, whether chosen by You or allocated by Us, at any time, if in Our reasonable opinion, You have failed to comply with any of the provisions of these Terms.

9.2 Confidentiality obligations: Each of us will protect the other’s Confidential Information from unauthorized use, access or disclosure in the same manner as each of us protects our own Confidential Information, and in any event, no less than reasonable care. Except as otherwise expressly permitted pursuant to these Terms, each of us may use the other’s Confidential Information solely to exercise our respective rights and perform our respective obligations under these Terms and shall disclose such Confidential Information solely to those of our respective employees, representatives and agents who have a need to know such Confidential Information for such purposes and who are bound to maintain the confidentiality of, and not misuse, such Confidential Information.

10. DATA PRIVACY AND SECURITY

10.1 Security of Service Data: We use appropriate technical and organizational measures to protect the Service Data that we Process. The measures we use are designed to provide a level of security appropriate to the risk of Processing your Service Data.

10.2 You understand that We and our Group Companies shall Process Service Data in accordance with Applicable Data Protection Laws and the Data Processing Addendum which are incorporated into these Terms by reference and in accordance with Our Privacy Notice. You acknowledge and agree that Group Companies may also access or disclose information about You, Your Account, Users or End-Users, including Service Data, in order to (a) comply with the law or respond to lawful requests or legal process; (b) protect Group Companies’ or Our customers’ or partners’ rights or property, including enforcement of these Terms or other policies associated with the Service(s); (c) act on a good faith belief that such disclosure is necessary to protect personal safety or avoid violation of applicable law or regulation. Further, at Our sole discretion, any suspected fraudulent, abusive, or illegal activity by You may be referred to law enforcement authorities.

11. DATA MIGRATION

During Your Subscription Term, You may request Us to import data into Your Account ("Data Migration"). You hereby understand and acknowledge that We and/or Our Group Companies may access and process Your data in connection with providing You support during such Data Migration.

12. COMMUNICATIONS FROM US

Apart from the communications specified in Our Privacy Notice, We may contact You directly via e-mail to notify You if

a. You are in violation of these Terms;

b. A specific activity or purpose is prohibited with respect to the Service(s), so that You immediately cease use of the Service(s) for such prohibited activity or purpose; or

c. You maintain an unusually high metric of monthly traffic, an exceptionally high number of Users, an unusually high level of support requests or other excessive stress on the Service(s).

13. DISCLAIMER OF WARRANTIES

THE WEBSITES AND THE SERVICE(S), INCLUDING ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. WE EXPRESSLY DISCLAIM ANY AND ALL CONDITIONS, REPRESENTATIONS, WARRANTIES OR OTHER TERMS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT.

YOU ACKNOWLEDGE THAT WE DO NOT WARRANT THAT THE SERVICE(S) OR WEBSITES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE AND YOU FURTHER ACKNOWLEDGE THAT WE DO NOT WARRANT THAT THE ACCESS TO THE SERVICE(S), WHICH IS PROVIDED OVER INTERNET AND VARIOUS TELECOMMUNICATIONS NETWORKS, ALL OF WHICH ARE BEYOND OUR CONTROL, WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE.

THE CONTENT ON OUR WEBSITES IS PROVIDED FOR GENERAL INFORMATION ONLY. IT IS NOT INTENDED TO AMOUNT TO ADVICE ON WHICH YOU SHOULD RELY. YOU MUST OBTAIN PROFESSIONAL OR SPECIALIST ADVICE BEFORE TAKING, OR REFRAINING FROM, ANY ACTION ON THE BASIS OF THE CONTENT ON OUR WEBSITES. NO INFORMATION OR ADVICE OBTAINED BY YOU FROM US OR THROUGH THE SERVICE(S) OR WEBSITES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.

14. LIMITATION OF LIABILITY

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WE, OUR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE TO ANY PERSON FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOST REVENUE, LOST SALES, LOST GOODWILL, LOSS OF USE OR LOST CONTENT, IMPACT ON BUSINESS, BUSINESS INTERRUPTION, LOSS OF ANTICIPATED SAVINGS, LOSS OF BUSINESS OPPORTUNITY) HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, WARRANTY, BREACH OF STATUTORY DUTY,NEGLIGENCE OR OTHERWISE, EVEN IF WE HAVE BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES OR COULD HAVE FORESEEN SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OUR AGGREGATE LIABILITY AND THAT OF OUR AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS, RELATING TO THE SERVICE(S), WILL BE LIMITED TO AN AMOUNT EQUAL TO THE LOWER OF (A) TWELVE MONTHS OF THE SUBSCRIPTION CHARGES FOR THE SERVICE(S) TO WHICH THE CLAIM RELATES; OR (B) THE SUBSCRIPTION CHARGES PAID BY YOU, FOR THE SERVICE(S) TO WHICH THE CLAIM RELATES PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT TO PROVIDE YOU WITH THE RIGHTS TO ACCESS AND USE THE SERVICE(S) IN ACCORDANCE WITH SECTION 1, WE HAVE LIMITED OUR POTENTIAL LIABILITY AND ALLOCATED RISKS BASED ON THE SUBSCRIPTION CHARGES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF WE WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN.

IN JURISDICTIONS WHICH DO NOT PERMIT THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, OUR LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.

THE LIMITATIONS AND EXCLUSIONS ALSO APPLY IF THIS REMEDY DOES NOT FULLY COMPENSATE YOU FOR ANY LOSSES OR FAILS OF ITS ESSENTIAL PURPOSE.

15. INDEMNIFICATION

15.1 If use of the Service(s) by You has become, or in Our opinion is likely to become, the subject of any IP Claim (defined below), We may at Our own option and expense (a) procure for You the right to continue using the Service(s) as set forth hereunder; (b) replace or modify the Service(s) to make it non-infringing; or (c) if options (a) or (b) are not commercially and reasonably practicable as determined by Us, terminate Your subscription to the Service(s) and repay You, on a pro-rated basis, any Subscription Charges You have previously paid Us for the corresponding unused portion.

15.2 Indemnification by Us: Subject to Your compliance with these Terms, We will indemnify and hold You harmless, from and against any claim brought against You by a third party alleging that the Service(s) You subscribed to infringes or misappropriates such third party’s valid patent, copyright, or trademark (an “IP Claim”). We shall, at Our expense, defend such IP Claim and pay damages finally awarded against You in connection therewith, including the reasonable fees and expenses of the attorneys, provided that (a) You promptly notify Us of the threat or notice of such IP Claim; (b) We have or will have the sole and exclusive control and authority to select defense attorneys, defend and/or settle any such IP Claim; and (c) You fully cooperate with Us in connection therewith. We will have no liability or obligation with respect to any IP Claim if such claim is caused in whole or in part by (i) compliance with designs, data, instructions or specifications provided by You; (ii) modification of the Service(s) by anyone other than Us; or (iii) the combination, operation or use of the Service(s) with other hardware or software where the Service(s) would not by themselves be infringing.

15.3 Sections 15.1 and 15.2 state Our sole, exclusive and entire liability to You and constitute Your sole remedy with respect to an IP Claim brought by reason of access to or use of the Service(s) by You.

15.4 Indemnification by You: You will indemnify and hold Group Companies harmless against any claim brought by a third party against Us, and their respective employees, officers, directors and agents arising from or related to use of the Service(s) by You in breach of these Terms or matters which You have expressly agreed to be responsible pursuant to these Terms; provided that We promptly notify You of the threat or notice of such a claim.

16. ASSIGNMENT; ENTIRE AGREEMENT; REVISIONS

16.1 You shall not, directly or indirectly, assign all or any Your rights under these Terms or delegate performance of Your duties under these Terms without Our prior written consent. We may, without Your consent, assign Our agreement with You under these Terms to any member of the Group Companies or in connection with any merger or change of Our control or the sale of all or substantially all of Our assets provided that any such successor agrees to fulfil its obligations pursuant to these Terms. Subject to the foregoing restrictions, these Terms will be fully binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.

16.2 These Terms, together with any Form(s) and Supplemental Terms, constitute the entire agreement, and supersede any and all prior agreements between You and Us with regard to the subject matter hereof. These Terms and any Form(s) shall prevail over the terms or conditions in any purchase order or other order documentation You or any Entity You represent provides (all such terms or conditions being null and void), and, except as expressly stated herein, there are no other agreements, representations, warranties, or commitments which may be relied upon by either party with respect to the subject matter hereof. In the event of a conflict between any Form and these Terms, these Terms shall prevail.

16.3 We may amend these Terms from time to time, in which case the new Terms will supersede prior versions. Please read these Terms of use carefully before You start to use Our Service(s) or Websites, as these will apply to Your use of the Service(s) and Our Websites. Please check these Terms from time to time to take notice of any changes We made, as they will be binding on You. We will notify You not less than ten (10) days prior to the effective date of any amendments to these terms of service and Your continued use of the Service(s) following the effective date of any such amendment may be relied upon by Us as Your acceptance of any such amendment. With respect to amendments only to the Supplemental Terms, We will notify You as aforementioned only if the Supplemental Terms are applicable to You. Our failure to enforce at any time any provision of these Terms does not constitute a waiver of that provision or of any other provision of the Terms.

17. SEVERABILITY; NO WAIVER

If any provision in these Terms is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by applicable law, and the remaining provisions of these Terms shall remain in effect. Our non-exercise of any right under or provision of these Terms does not constitute a waiver of that right or provision of the Terms.

18. EXPORT COMPLIANCE AND USE RESTRICTIONS; FEDERAL GOVERNMENT END USE PROVISIONS

The Service(s) and other Software or components of the Service(s) which We may provide or make available to You or Users may be subject to U.S. (or other territories) export control and economic sanctions laws. You agree to comply with all such laws and regulations as they relate to access to and use of the Service(s), Software and such other components by You and Users. You shall not access or use the Service(s) if You are located in any jurisdiction in which the provision of the Service(s), Software or other components is prohibited under U.S. or other applicable laws or regulations (a “Prohibited Jurisdiction”) and You shall not provide access to the Service(s) to any government, entity or individual located in any Prohibited Jurisdiction. You represent, warrant and covenant that (i) You are not named on any U.S. government (or other government) list of persons or entities prohibited from receiving U.S. exports, or transacting with any U.S. person, (ii) You are not a national of, or a company registered in, any Prohibited Jurisdiction, (iii) You shall not permit Users to access or use the Service(s) in violation of any U.S. or other applicable export embargoes, prohibitions or restrictions, and (iv) You shall comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which You and Your Users are located. If You are a U.S. federal government department or agency or contracting on behalf of such department or agency, this Service(s) is a “Commercial Item” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as those terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Service(s) is licensed to You with only those rights as provided under the terms and conditions of these Terms.

19. RELATIONSHIP OF THE PARTIES

The parties are independent contractors. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the parties.

20. SURVIVAL

Sections 2 (Your Responsibilities), 5 (Intellectual Property Rights), 7 (Billing, Plan Modification and Payments), 8 (Suspension and Termination), 9 (Confidentiality), 10 (Data Privacy and Security), 13 (Disclaimer of Warranties), 14 (Limitation of Liability), 15 (Indemnification), 20 (Survival), 21 (Notices; Consent to electronic communication) and 23 (Governing Law and Dispute Resolution) shall survive any termination of Our agreement with respect to use of the Service(s) by You. Termination of such agreement shall not limit Your or Our liability for obligations accrued as of or prior to such termination or for any breach of these Terms.

21. NOTICES; CONSENT TO ELECTRONIC COMMUNICATIONS

21.1 All notices to be provided by Us to You under these Terms may be delivered in writing (i) by nationally recognized overnight delivery service (“Courier”) or US mail to the contact mailing address provided by You on any while subscribing to the Service(s); or (ii) electronic mail to the e-mail address provided for Your Account.

21.2 Our address for a notice to Us in writing by Courier or US Mail is: Delve AI, Inc., 548 Market St #49064, San Francisco, CA 94104-5401, USA with a CC to legal@delve.ai by electronic mail. All notices shall be deemed to have been given immediately upon delivery by electronic mail, or if otherwise delivered upon receipt or, if earlier, two (2) business days after being deposited in the mail or with a Courier as permitted above.

22. ANTI-CORRUPTION

You agree that You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with these Terms. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Us at legal@delve.ai.

23. GOVERNING LAW AND DISPUTE RESOLUTION

23.1 These Terms shall be governed by the laws of the State of California without regard to conflict of laws principles. You hereby expressly agree to submit to the exclusive personal jurisdiction of the federal and state courts of the State of California, San Francisco County, for the purpose of resolving any dispute relating to the Terms or Your access to or use of the Service(s).

23.2 Any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of these Terms to arbitrate, shall be determined by arbitration in San Francisco, California before three arbitrators. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules. Judgment on the Award may be entered in any court having jurisdiction. ANY ARBITRATION UNDER THESE TERMS SHALL TAKE PLACE ON AN INDIVIDUAL BASIS. CLASS ACTION AND CLASS ARBITRATIONS ARE NOT PERMITTED. YOU UNDERSTAND THAT BY AGREEING TO THESE TERMS, YOU WAIVE YOUR RIGHT TO PARTICIPATE IN CLASS ACTIONS. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.

24. DEFINITIONS

When used in these Terms with the initial letters capitalized, in addition to terms defined elsewhere in these Terms, the following terms have the following meanings:

  • Account: means any accounts or instances created by or on behalf of You for access and use of any of the Service(s).
  • Affiliate: means, with respect to a party, any entity that directly or indirectly controls, is controlled by, or is under common control with such party, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of such person, whether through the ownership of voting securities, by contract, or otherwise.
  • Agent: means an individual authorized to use the Service(s) through Your Account for such Service(s) as an agent and/or administrator as identified through a User Login.
  • API: means the application programming interfaces developed, enabled by or licensed to Us that permits a User to access certain functionality provided by the Service(s).
  • API Policies: means the policies published on the Websites (as specified below) that govern the use of APIs, as updated from time to time.
Service(s)Website
OrgInfohttps://orginfo.io
  • Business: means an individual website or mobile application for which one or more Service(s) have been subscribed for.
  • Applicable Data Protection Law: where You are established in the European Economic Area, means the EU Regulation 2016/679 (General Data Protection Regulation) and any applicable national laws made under it; where You are established in Switzerland, means the Swiss Federal Act of 19 June 1992 on Data Protection (as may be amended or superseded); and where You are established in any other territory, means data protection laws that are applicable in that territory.
  • Competitor Persona by Delve AI: means the AI-based software solution provided by Us to automatically extract marketing related abstractions such as buyer personas, user segments, user intent and user journeys from competitor intelligence data of a specified competitor website or mobile application.
  • Confidential Information: means all information disclosed by You to Us or by Us to You which is in tangible form and labelled “confidential” (or with a similar legend) or which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure. For purposes of these Terms, Service Data shall be deemed Confidential Information. Notwithstanding the foregoing, Confidential Information shall not include any information which (a) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (b) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (c) is already in the possession of the receiving party at the time of disclosure by the disclosing party as shown by the receiving party’s files and records prior to the time of disclosure; (d) is obtained by the receiving party from a third party without a breach of such third party’s obligations of confidentiality; (e) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information, as shown by documents and other competent evidence in the receiving party’s possession; or (f) is required by law to be disclosed by the receiving party, provided that the receiving party shall, to the extent legally permitted, give the disclosing party written notice of such requirement prior to disclosing so that the disclosing party may seek a protective order or other appropriate relief.
  • Data Processing Addendum: means the data processing addendum available at https://www.delve.ai/data-processing-addendum and as updated from time to time, which shall govern Service Data to the extent that it includes Personal Data and involves transferring such Personal Data outside the European Economic Area or Switzerland to any country not deemed by the European Commission as providing an adequate level of protection for personal data.
  • Documentation: means any written or electronic documentation, images, video, text or sounds specifying the functionalities of the Service(s) provided or made available by Us to You or Your Users through the Service(s) or otherwise.
  • End-User: means any person or entity other than You or Your Users with whom You interact using the Service(s).
  • Form: means any service order form referencing these Terms and executed or approved by You and Us with respect to Your subscription to the Service(s), which form may detail, among other things, the monthly visitor traffic limit authorized to use the Service(s) under Your subscription to the Service(s) and the Service Plan(s) applicable to Your subscription to the Service(s).
  • Group Companies: means Delve AI, Inc. together with its Affiliates.
  • Live Persona by Delve AI: means the AI-based software solution provided by Us to automatically extract marketing related abstractions such as buyer personas, user segments, user intent and user journeys from mobile/website traffic data of a Business.
  • OrgInfo: means the API services provided by Us and made available through orginfo.io, to convert IP addresses to enriched company data.
  • Personal Data: means data relating to a living individual who is or can be identified either from the data or from the data in conjunction with other information that is in, or is likely to come into, the possession of the data controller (as defined under data protection laws that are applicable in that territory).
  • Privacy Notice: means Our privacy notice at https://www.delve.ai/privacy as updated from time to time.
  • Processing/To Process: means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction.
  • Service Data: means all electronic data, text, messages or other materials, including Personal Data of Users and End-Users, submitted to the Service(s) by You through Your Account in connection with Your use of the Service(s), including, without limitation, Personal Data.
  • Service(s): mean and include Persona by Delve AI, any new services that We may introduce as a Service to which You may subscribe to and any updates, modifications or improvements to the Service(s), including individually and collectively, Software, the API and any Documentation. You may subscribe to one or more of the Service(s). They may be subject to separate and distinct Service Plans.
  • Service Plan(s): means the pricing plan(s) and the functionality and services associated therewith (as detailed on the Websites) for which You subscribe with respect to any User.
  • Software: means software provided by Us (either by download or access through the internet) that allows You to use any functionality in connection with the Service(s).
  • Subscription Term: means the period during which You have agreed to subscribe to the Service(s) with respect to any individual User.
  • Supplemental Terms: means the Service(s) - specific terms set forth in section 24 below, additionally applicable to You when You enable, access or use such Service.
  • Us: means Delve AI, Inc., a Delaware corporation, or any of its successors or assignees. In these Terms, Us may also be referred to as “We”, and “Our”.
  • User: means those who are designated users within the Service(s), including an Account administrator, Agents and other designated users.
  • Websites: means the websites for various Service(s) and other websites that Delve AI operates.

25. SUPPLEMENTAL TERMS

The Supplemental Terms below may contain terms that are specific to one or more Service(s). For avoidance of doubt, in the event of a conflict or inconsistency between the rest of the Terms and these Supplemental Terms, these Supplemental Terms shall prevail.

A) FOR USE OF INTEGRATIONS; MODIFICATION OF EXISTING FEATURES & NEW FEATURE RELEASE

You acknowledge that (i) when You enable integrations or (ii) where (a) a feature is modified or (b) a new feature is released within the Service(s), You may be shown additional terms governing their usage. Your continued usage of such integrations or such features may be relied upon by Us as Your acceptance of such additional terms.

B) We may offer certain services on Our Websites as closed or open beta services ("Beta Services") during the testing and evaluation period. You agree that We have the sole authority and discretion to determine the period of time for testing and evaluation of Beta Services. You will be under no obligation to acquire a subscription to use any paid services as a result of Your subscription to any Beta Service. We reserve the right to fully or partially discontinue, at any time and from time to time, temporarily or permanently, any of the Beta Services with or without notice to You. We also reserve the right to make the Beta Services available for a subscription fee (which may or may not be lower than the Subscription Charges payable for paid services).

C) FOR USE OF LIVE PERSONA BY DELVE AI

1. For Your use of Live Persona by Delve AI, all references to Service Plan(s) under the Terms shall be construed as referenced to Pricing Subscription(s). “Pricing Subscription(s)” means the pricing and number of monthly visitors associated therewith (as detailed on the Websites) for which You subscribe with respect to any Business.

2. Overage Charges: When the number of visitors for Your Business in any month exceeds the limit on the number of visitors that will be processed each month as set by the Subscription Plan associated with the Business, usage exceeding the prepaid Subscription Plan limit will be charged overage charges as listed on the Websites.

3. Client User Data: If a Business stays in a free Subscription Plan beyond initial 30 days, You acknowledge that We may use demographic and interest data, in aggregated and anonymized form, as enabled and provided via Google Analytics integration by You in our Service(s), to be used to train and refine internal data models used in Our Service(s).

4. Data Export: You acknowledge that Live Persona by Delve AI does not have any feature to export Service Data, except as provided via Export as JPG/CSV features, upon termination of Your Account.

D) FOR USE OF COMPETITOR PERSONA BY DELVE AI

1. For Your use of Competitor Persona by Delve AI, all references to Service Plan(s) under the Terms shall be construed as referenced to Pricing Subscription(s). “Pricing Subscription(s)” means the pricing and size of competitor business, in terms of employee count, (as detailed on the Websites) associated with the website domain or mobile application that You specify.

2. Data Export: You acknowledge that Competitor Persona by Delve AI does not have any feature to export Service Data, except as provided via Export as JPG/CSV features, upon termination of Your Account.

D) FOR USE OF ORGINFO

1. For Your use of OrgInfo, all references to Service Plan(s) under the Terms shall be construed as referenced to Pricing Subscription(s). “Pricing Subscription(s)” means the pricing and number of monthly API lookups associated therewith (as detailed on the Websites) for which You subscribe.

2. Response caching/storage: You must not store data provided by OrgInfo as response(s) to your API lookup(s) in any permanent storage of your application. Further, any caching/local storage that is employed must be limited to 24 hours maximum.

3. Data Export: You acknowledge that OrgInfo does not have any feature to export Service Data, upon termination of Your Account.