Term of Service

Last Updated: February 2, 2022

The following terms govern the agreement between users and members (“You”) and Crystal Commerce, Inc. (“Company,” “we,” or “us”). These terms and conditions, together with any documents they expressly incorporate by reference (collectively, “Terms of Service” or “TOS”), govern your access to and use of the Crystal Commerce ecommerce network (“Network”) and its related services, including any content, functionality, and services offered on or through our online platform and website (collectively, the “Services”), whether as a guest or an account holder.

Please read the Terms of Service carefully before You use or access the Services. By using the Services, You accept and agree to be bound and abide by these Terms of Service and our Privacy Policy, found at [https://www.crystalcommerce.com/privacy-policy/], incorporated by reference herein. If You do not agree to these Terms of Service or the Privacy Policy, You must not access or use the Services.

These Services are offered and available to users who 18 years of age or older, and reside in the United States or any of its territories or possessions, and other jurisdictions as permitted by law. By using these Services, You represent and warrant that You are of legal age to form a binding contract with the Company and meet all of the foregoing eligibility requirements. If You do not meet all of these requirements, You must not access or use the Services.

1. SERVICES 

Our Services  You can order our Services using our online checkout [https://store.crystalcommerce.com].  We’re responsible for providing those Services listed on your Order Confirmation.

The Network offers a wide variety of Services to its users and members.  Your use of our Services are subject to the terms and conditions of this Terms of Service and any policies of Company as in force from time to time as posted on [https://www.crystalcommerce.com/terms-of-service/], including our Code of Conduct.

You will select your specific Member Services via our online order form [https://store.crystalcommerce.com].  We will then send You an order confirmation (“Order Confirmation”) confirming your purchase of the Services.

We will only be responsible for the operation and performance of the Services set forth in the Order Confirmation, and Company expressly disclaims any liability with regards to any products and/or services provided by You.

Payment Processing  

We provide options to Members to use any Merchant Services company you may contract with. For checkout within a CrystalCommerce eCommerce web-store your Merchant services provider must support Authorize.net Payment Gateway, or Bambora Payment Gateway. We also have support for stand alone Paypal Express Payment Gateway.

Use Restrictions  

You may only use the Services as expressly authorized by this TOS.  You agree not to engage in prohibited activities (e.g. illegal activities, activities that interference with the operation of the Services, or activities that are harmful to others).

You shall not use the Services for any purposes beyond the scope of the access granted in this Terms of Service. You shall not at any time, directly or indirectly, permit any Authorized Users (defined below) to: (a) attempt to sell, transfer, assign, rent, lend, lease, sublicense or otherwise provide third parties rights to the Services or access to data provided through the Services; (b) publicly publish, copy, duplicate or replicate the Services; or use any data provided through the Services except for the purpose of promoting and selling Member goods and providing exclusive or non-exclusive transaction referral services to Members as an integrated API Services provider within Company’s Affiliate Program; (c) scrape any data, Content (defined below) or intellectual property, or otherwise trespass or interfere with Company’s Services or systems; (d) “frame,” “mirror,” copy or otherwise enable third parties to use the Service (or any component thereof) as a service bureau or other outsourced service; (e) allow access to the Services by multiple individuals impersonating a single end user; (f) use the Services in a manner that interferes with, degrades, or disrupts the integrity or performance of any Company technologies, services, systems or other offerings, including data transmission, storage and backup; (g) use the Services for the purpose of developing a product or service that competes with Company’s products and services; (h) circumvent or disable any security features or functionality associated with Services, or delete any information from the Services, including without limitation Content provided by You, with the purpose or effect of preventing or interfering with Company’s continued access to such information or Content; or (i) use the Services in any manner prohibited by law. Notwithstanding the foregoing, your account may permit publication of certain data to third parties through the use of publications features made available by Company (e.g. embeddable widgets, iFrames, APIs), and You may use such features, as provided by Company, to publish information to third parties.

Furthermore, the following activities are prohibited:

  • Child exploitation: You may not offer goods or services, or post or upload Materials (defined below) that exploit or abuse children, including but not limited to images or depictions of child abuse or sexual abuse, or that present children in a sexual manner.
  • Harassment, bullying, defamation and threats: You may not offer goods or services, or post or upload Materials, that harass, bully, defame or threaten a specific individual.
  • Hateful content: You may not use the Services to promote or condone hate or violence against people based on race, ethnicity, color, national origin, religion, age, gender, sexual orientation, disability, medical condition, veteran status or other forms of discriminatory intolerance. You may not use the Services to promote or support organizations, platforms or people that: (i) promote or condone such hate; or (ii) threaten or condone violence to further a cause.
  • Illegal activities: You may not offer goods or services, or post or upload Materials, that contravene or that facilitate or promote activities that contravene, the laws of the jurisdictions in which You operate or do business.
  • Intellectual property: You may not offer goods or services, or post or upload Materials that infringe on the copyright or trademarks of others.
  • Malicious and deceptive practices: You may not use the Services to transmit malware or host phishing pages.  You may not use the Services for deceptive commercial practices or any other illegal or deceptive activities.
  • Personal and confidential information: You may not post or upload any Materials that contain personally identifiable information, sensitive personal information, or confidential information, such as credit card numbers, confidential national ID numbers, or account passwords unless You have consent from the person to whom the information belongs or who is otherwise authorized to provide such consent.
  • Impersonation:  You may not impersonate the Company or any third-party.
  • Restricted Items: You may not offer goods or services that are, or appear to be, Restricted Items.  As used in this Terms of Service, “Restricted Items” means [items not legal for sale, exchange, barter, or banned items within your local jurisdiction without proper license or pre-approval].
  • Self-harm: You may not offer goods or services, or post or upload Materials, that promote self-harm.
  • Spam: You may not use the Services to transmit unsolicited commercial electronic messages.
  • Terrorist organizations: You may not offer goods or services, or post or upload Materials that imply or promote support or funding of, or membership in, a terrorist organization.

We may, at any time and without notice, remove any Materials, and suspend or terminate your Account or your access to the Services if You engage in activities that violate the letter or spirit of these prohibitions, including activities outside of your use of the Services.

Company has the right, but not the obligation, to monitor or investigate any Materials and your use of the Services at any time for compliance with this Terms of Service. Our determination of whether a violation has occurred will be final and binding, and any action taken with respect to enforcing this Terms of Services, including taking no action at all, will be at our sole discretion.

Company may modify prohibitions, including the list of Restricted Items, at any time by posting an updates version of this Terms of Service. By continuing to use the Services or access your Account after an updated version of Terms of Service has been posted, You agree to comply with the latest version of the Terms of Service. 

If You feel that a user of the Services has violated this Terms of Service, please contact us at: [legal@crystalcommerce.com]

Suspension of Services  Your unauthorized use or activities may result in suspension or termination of the Services.  We may also need to suspend the Services if third-party services necessary for our own operations become unavailable.

Notwithstanding anything to the contrary in this Terms of Service, Company may temporarily suspend your and any Authorized User’s access to any portion or all of the Services if: 

a. Company reasonably determines that (i) there is a threat or attack on any of Company intellectual property; (ii) your or any Authorized User’s use of Company intellectual property disrupts or poses a security risk to Company intellectual property or to any other customer or vendor of Company; (iii) You, or any Authorized User, is using Company intellectual property for fraudulent or illegal activities; (iv) subject to applicable law, You have ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (v) Company’s provision of the Services to You or any Authorized User is prohibited by applicable law;

b. any vendor of Company has suspended or terminated Company’s access to or use of any third-party services or products required to enable You to access the Services; or

c. in accordance with any suspension otherwise described herein (each, a “Service Suspension”). 

Company shall use commercially reasonable efforts to provide written notice of any Service Suspension to You and to provide updates regarding resumption of access to the Services following any Service Suspension. Company shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Company will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that You or any Authorized User may incur as a result of a Service Suspension.

Changes to the Services  Our Service offerings will continue to grow and change as we do.  If changes to the Services adversely affect your use, You may be able to cancel your use of the Services.

The Services are based on Company’s software platform and will evolve as the platform is updated. Company shall have the right to change the Services or any part thereof at any time. Company shall use reasonable efforts to inform You in advance of any material changes that may affect Your use of the Services in an adverse way. If You do not wish to use the changed Services, You may terminate Your use of the Services and this Terms of Service effective as of the date on which such changes to the Services would take effect by informing Company of the termination prior to such date.

Marketplace Services  Our Services may allow you to create a Webstore in our Marketplace.  You are responsible for the lawful operation of your Webstore.

One of our Services includes the ability for users to create a webstore (“Webstore”) in the Network’s marketplace (“Marketplace”). We also provide a number of related customer Services within the Marketplace.  You maintain the control and operation of your Webstore and we do not assume any responsibility or liability for any business, transactions and activities carried out on your Webstore. You are responsible for determining the theme, contents, focus and business idea of the Webstore. 

You are solely responsible for providing the required terms of use, terms of sale, other terms as well as legally mandated documents (including without limitation privacy policies) applicable to the use of the Webstore provided, or your own Webstore technology by the end-users of the Webstore (together the “Webstore Terms”). You shall ensure that the Webstore Terms are available to the end-users of the Webstore at all times and that such end-users have accepted and shall comply with the Webstore Terms. You may determine the actual terms and conditions of the Webstore Terms, but You are solely responsible for ensuring that such terms and conditions comply with all applicable laws, rules and regulations and the terms and conditions of this Terms of Service at all times.

You are solely responsible and liable for the Webstore and any business, transactions and activities carried out on the Webstore. You are solely responsible for any content created for or posted on the Webstore and understand that Company does not control such content. Without limiting the foregoing, You are solely responsible for operating the Webstore in accordance with all applicable laws, rules and regulations and the terms and conditions of this Terms of Service. Company reserves the right to remove any and all content from the Webstore or temporarily suspend the Webstore when such removal or suspension is necessary to remove content that is not compliant with the terms and conditions of this Terms of Service from the Webstore.

You are solely responsible for ensuring that the data relating to the end-users (“End-User Data”) of the Webstore is collected and processed in accordance with all applicable laws. 

API Services  You can request API Services to enrich your use of our Services.  You agree to use the API Services only as authorized herein.

If your Services expressly include application programming interface (“API”) access (“API Services”), Company shall provide You with access to the API Services specified in the Order Confirmation. 

Data, content, and information made available through the API Service is provided to You only for your own business purposes in connection with your use of the Network. Company may monitor your use of the API Services to ensure quality, improve Company’s products and services, and verify your compliance with the this Terms of Service.  You also agree to provide Company with access to your systems, code base, records and other information and materials to the extent necessary or desirable for Company to verify your compliance with this Terms of Service. Your use of the API Services is subject to the following restrictions: (a) unless otherwise authorized by Company in writing, all calls to the Company API must reference the API Key (“API Key”) issued to You; (b) You agree to keep your API Key confidential and not to share it with any third party; (c); You may not otherwise reproduce, modify, distribute, decompile, disassemble or reverse engineer any portion of the API or its Content, except with prior written consent from Company.

You acknowledge that, as between you and us, (a) we own all right, title, and interest, including all intellectual property rights, in and to the API, and (b) you own all right, title, and interest, including all intellectual property rights, in and to Your IP. You will use commercially reasonable efforts to safeguard the API (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access. You will promptly notify us if you become aware of any infringement of any intellectual property rights in the API and will fully cooperate with us, in any legal action taken by us to enforce our intellectual property rights. If you or any of your employees, contractors, and agents sends or transmits any communications or materials to us by mail, email, telephone, or otherwise, suggesting or recommending changes to the API, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“API Feedback”), all such API Feedback is and will be treated as non-confidential. You hereby assign to us on your behalf, and on behalf of your employees, contractors, and agents, all right, title, and interest in, and we are free to use, without any attribution or compensation to you or any third party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although we are not required to use any Feedback.  As used herein, “Your IP” means any applications developed by you to interact with the API, as well all information and materials, including software, that You developed or acquired prior to or independently of this Agreement, and shall also include derivative works of the foregoing.

For the sake of clarity, use of the API Services does not create any employment relationship (as an employee, contractor, or otherwise) between You the Company.  To learn more about becoming a developer for the Company, see the Software Developer Terms below.

Affiliate Marketing and Referral Services  Our Network allows its users opportunities to cross-promote, market, and sell with others.  Please contact us (info below) to learn more about this program.

We also provide a joint marketing and referral program (the “Affiliate Program”) which allows Members to engage in cross-promotional marketing and sales for their Webstores and Marketplace connected with Webstores.  To join the Affiliate Program, please contact one of our representatives at [support@crystalcommerce.com].  They will help you to determine what marketing, promotional, and referral activities will apply to your participation in the Affiliate Program.  Any such obligations and duties (“Affiliate Terms”) shall be incorporated by reference herein to this Terms of Service.  

If you’re already a member of the Affiliate Program (an “Affiliate”) the following terms and conditions will also apply to You.  

Your marketing and referral efforts while You participate in the Affiliate Program shall be no less than the marketing and referral efforts exerted by a party marketing the applicable goods/services to any other market. 

We may make available to you certain advertising and media (“Affiliate Media”) for display and use by You in connection with the Affiliate Program.  You shall display Affiliate Media according to the Affiliate Media guidelines as provided below and by Company from time to time.  We hereby grant You a non-exclusive, nontransferable, revocable, license (the “Affiliate License”) to use the Affiliate Media as specified under the terms and conditions of this TOS and Affiliate Terms. The term of the Affiliate License shall expire upon the expiration or termination of this TOS, or upon Company’s termination of your status as an affiliate.

You grant to Company a worldwide, non-exclusive, non-assignable, non-sublicensable, royalty-free, paid up, limited license to use and display Your trademarks solely as necessary to perform Company’s obligations under the Affiliate Program, and as may be further described in the Affiliate Terms.  Company will comply with any trademark usage guidelines that You may communicate to Company in writing from time to time.  You will provide Company with copies of any materials bearing any of your trademarks as requested by Company from time to time.  If Company’s use of any of your trademarks, or if any material bearing your trademarks, does not comply with the then-current trademark usage policies provided in writing by You, Company will promptly remedy such deficiencies upon receipt of written notice of such deficiencies from You.  Other than the express licenses granted herein, nothing herein will grant to Company any other right, title or interest in your trademarks.  All goodwill resulting from Company’s use of your trademarks will inure solely to You.  We will not attempt to register or claim any interest in your trademarks.

Your use and display of the Affiliate Media must at all times conform to the following terms, conditions, and specifications:

  • You may only use the Affiliate Media for the purpose of promoting Webstores and their respective products and services offerings.
  • You will not publish or otherwise distribute any advertising materials for Webstores unless Company gives prior written consent to the distribution of such materials.
  • You will not use a Webstore’s or Company’s name (or any name that is confusingly similar) for any purpose except as specifically authorized herein.
  • You will not register any trademark or domain name that incorporates the Company’s name or any third-party Webstore’s name, or that is confusingly similar to same.
  • You will not alter, add to, subtract from, or otherwise modify the Affiliate Media.  If You wish to alter or otherwise modify the Affiliate Media, You must obtain prior written consent from Company for such alteration or modification.

The Federal Trade Commission (“FTC”) has endorsement rules in place for affiliate marketing, and You are required to abide by these rules.  You can read the full FTC rules about affiliate marketing at [https://www.ftc.gov/sites/default/files/attachments/press-releases/ftc-publishes-final-guides-governing-endorsements-testimonials/091005revisedendorsementguides.pdf].  When posting or sharing your content, you should make it known to your readers and followers You will receive compensation if they buy a product or services referred by You.  This declaration should be clear and conspicuous. 

You are obligated to comply with various rules and regulations regarding bulk electronic communications.  You may not, without our prior written consent, (i) generate or send any email messages, text or mobile messages, or other electronic messages (“Electronic Messages”) using or containing and our name or logo, or any variation thereof, or any of our trademarks or products, or any of the Affiliate Media provided to you as part of the Affiliate Program, (ii) send any Electronic Messages that in any way suggests or implies or misleads or is likely to mislead (including without limitation, via the return address, subject heading, header information or message contents) a recipient into believing that we or any related entity was the sender or sponsor of such email or procured or induced you to send such email, (iii) forward, redistribute, or otherwise repurpose any Electronic Messages that we send our customers or members, and (iv) generate or send any unsolicited email (spam) under this Agreement or any email in violation of the CAN-SPAM Act of 2003 (including any amendments or successor laws) or any other applicable laws or regulations.  You will not engage in the distribution of any unsolicited bulk emails (spam) in any way mentioning or referencing Company.

You shall Compensate, or be compensated, for the services performed by Company or You under the Affiliate Program as set forth in your Affiliate Terms.  

In the event Company believes, in its sole discretion, that any Affiliate Program transactions (the “Transactions”) have not been reported accurately, at Company’s request, You will deliver to Company true, complete and accurate statement(s) setting forth revenue collected from the Transactions. Company also shall have the right, at its expense, to review and audit your books and records upon thirty (30) days’ notice, such books and records to be made available by You to Company at Company’s corporate office. 

Services We Do NOT Provide  We do not provide financial, investment, legal, or related licensed professional services.  Please contact a qualified provider for these services.

You understand and agree that Company is not an accounting, financial advisory, financial planning, investment advisory, broker-dealer, or law firm, and is not registered as an accounting, financial advisory, financial planning, retirement planning, investment advisory, broker-dealer, or law firm, nor does it provide any such services. You further understand and agree that You should always seek the advice of a qualified professional with any questions regarding financial, investment, or legal issues or other issues. You should never disregard, avoid, or delay in obtaining advice from a professional services provider or other qualified provider.  

2. YOUR ACCOUNT

 Account registration is required for full access to the Services.  You are responsible for making sure your account information is accurate and secure.

To fully access and use the Services, You must register for a Crystal Commerce account (“Account”) by providing your full legal name, current address, phone number, a valid email address, and any other information indicated as required. We may reject your application for an Account, or cancel an existing Account, for any reason, in our sole discretion.

You acknowledge that Company will use the email address You provide as the primary method for communication.

You are responsible for keeping your password secure. Company cannot and will not be liable for any loss or damage from your failure to maintain the security of your Account and password.

You are responsible for all activity and content such as photos, images, videos, graphics, written content, audio files, code, information, or data uploaded, collected, generated, stored, displayed, distributed, transmitted or exhibited by You or an Authorized User on or in connection with your Account (“Materials”).

Subject to the next paragraph, the person signing up for the Service will be the contracting party (“Account Owner”) for the purposes of our Terms of Service and will be the person who is authorized to use any corresponding account we may provide to the Account Owner in connection with the Services.

If You are signing up for the Services on behalf of your employer, your employer shall be the Account Owner. If You are signing up for the Services on behalf of your employer, then You represent and warrant that You have the authority to bind your employer to our Terms of Service.

You are responsible for both:

  • Making all arrangements necessary for You to have access to the Services.
  • Ensuring that all Authorized Users are aware of these Terms of Service and comply with them.

It is a condition of your use of the Services that all the information You provide on the Services is correct, current, and complete. You agree that all information You provide, including, but not limited to, through the use of any interactive features on the Services, is governed by our Privacy Policy [https://www.crystalcommerce.com/privacy-policy/], and Personal Data Protection Policy [https://www.crystalcommerce.com/personal-data-protection-policy/] and You consent to all actions we take with respect to your information consistent with our Privacy Policy and Personal Data Protection Policy.

You must treat your Account information as confidential, and You must not disclose it to any other person or entity (except Authorized Users). As used in this Terms of Service “Authorized Users” are any people who You have authorized to use your Account.  You agree to notify us immediately of any unauthorized access to or use of your user name or password or any other breach of security. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.

We have the right to disable any user name, password, or other identifier, whether chosen by You or provided by us, at any time if, in our opinion, You have violated any provision of these Terms of Service.

3. FEES AND PAYMENT TERMS  

Access to our Services may require the payment of fees.  Late payments or non-payment may result in suspension or termination of the Services.

Fees may be applicable to the use of the Services. Any fees chargeable for the use of the Services shall be agreed separately between the parties and shall be based on the price lists of Company as in force from time to time.

Company reserves the right to change its price lists. Company shall notify You of a change in the fees charged for the Service at least ten (10) days in advance. Should You wish not to accept such change in fees, You may terminate this Terms of Service in accordance with Section [9] below.

Unless separately agreed otherwise, any fees shall be charged monthly in advance. For invoices sent separately, the payment term is thirty (30) days net from the date of the invoice.

In the event payments are not received by Company within thirty (30) days after becoming due, Company may: (a) charge interest on any such unpaid amounts at a rate of 1.5% per month or, if lower, the maximum amount permitted under applicable law, from the date such payment was due until the date paid; and (b) suspend performance for all Services until payment has been made in full.

All listed fees and any amounts payable are net amounts exclusive of possibly applicable VAT, sales tax, or any other applicable taxes and charges imposed by any government entity in connection with Your use of the Service. You are solely liable for any such taxes and charges.

4. SERVICE LEVELS  

We will endeavor to provide you with an update percentage as high as possible.  You may be entitled to a Service Credit if our uptime falls below the levels promised.

Company will use its reasonable commercial efforts to keep the Services available 24/7 with an uptime percentage as high as possible.

If the Services are available less than [95%] of time during any calendar month, You are entitled to service credit (“Service Credit”) in accordance with the following table by requesting the Service Credit from Company in writing within thirty (30) days from the end of the relevant calendar month:

Service Availability during the Calendar Month

Service Credit as % of the Monthly Fee

< 95%

10%

< 93%

25%

< 90%

50%

Company will deduct the Service Credit from your next invoice. Service Credits are always compensated by way of price reductions from future invoices, and are not paid out as refunds. If this Terms of Service is terminated for any reason, all liability of Company as regards Service Credit shall terminate upon the termination of this Terms of Service. The Service Credits are calculated only based on the fixed monthly fee, and shall not affect any transaction commissions or other forms of payments paid to the Service Provider.

When calculating the monthly availability, any downtime of the Service shall not be taken into account if it is caused by any of the following:

(i) Factors outside of Company’s reasonable control, including any force majeure events;

(ii) any reason attributable to any third party used in provision or in connection to providing the service, e.g. payment gateways, hosting providers, name server provider etc.;

(iii) any actions or inactions by You, any party acting on your behalf, or any other third party;

(iv) planned maintenance.

Service levels and Service Credits set out in this Section 4 are not applied to any Service offerings that are made available to You free of charge. This Section 4 sets out the entire liability of Company and your sole remedy for any downtime of the Services. For the avoidance of doubt, Company assumes no liability as regards any downtime of any Services offerings that are made available to You free of charge.

5. INTELLECTUAL PROPERTY

Documentation License   You have the right to use the Documentation with your use of the Services.

Subject to the terms and conditions contained in this Terms of Service, Company hereby grants to You a non-exclusive, non-sublicenseable, non-transferable license to use the Documentation during the Term solely for your internal business purposes in connection with its use of the Services.  As used in this Terms of Service, “Documentation” means any manuals, instructions, or other documents or materials that Company provides or makes available to You in any form or medium and which describe the functionality, components, features, or requirements of the Services, including any aspect of the installation, configuration, integration, operation, use, support, or maintenance thereof.

Content Use  You have a Content License to use certain intellectual property of the Company in connection with your use of the Services.

Company grants users a Content License in respect to Company’s intellectual property which forms part of the Services.  As used herein, “Content License” means a personal, revocable, worldwide, royalty-free, non-transferrable and non-exclusive licence to use our Content either on or through the Service through a generally available web browser, mobile device or application solely for the purpose of enabling users to use the Service, in the manner permitted by this Terms of Service and does not extend to scraping, spidering, crawling or other technology or software used to access data without our express written consent.  “Content” means any material capable of and in which copyright or other intellectual property protection subsists (such as data files, product catalog, written text, computer software, music, audio files or other sounds, photographs, videos or other images) including, but not limited to, what You may have access to as part of, or through your Service use.

To the extent that any copying, reproduction, distribution, transmission, display, broadcasting or publishing of any Content is expressly permitted (such permission to be interpreted in its most restrictive sense) You may do so, provided that all applicable trademarks, trade names and all copyright, ownership, proprietary and confidentiality notices included on or in relation to the Content are retained and displayed of the Rights Holder without alteration or modification and not in any manner obscured or removed.

You are further required, as a condition of this Content License, to clearly and expressly attribute Company as the Content’s source.

You acknowledge that You do not acquire any ownership rights or rights to use the Content except where explicitly permitted to do so. In the event Company revokes the Content License, You may no longer use the Content unless specifically agreed to in writing.

Reservation of Rights  The Company and any third-parties (as applicable) retain all rights, title, and interest in their respective intellectual property rights.

Company reserves all rights not expressly granted to You in this Terms of Service.  Except for the limited rights and licenses expressly granted under this Terms of Service, nothing in this Terms of Service grants, by implication, waiver, estoppel, or otherwise, to You or any third party any intellectual property rights or other right, title, or interest in or to Company intellectual property, or the protected Intellectual Property of others contained within Company’s Services.

Aggregated Statistics  Company may compile and use anonymized and aggregated data about your use of the Services, however, such Aggregated Data won’t identify You or your Confidential Information.

Notwithstanding anything to the contrary in this Terms of Service, Company may monitor your use of the Services and collect and compile Aggregated Statistics. “Aggregated Statistics” means data and information related to your use of the Services that is used by Company in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services. As between Company and You, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Company. You acknowledge that Company may compile Aggregated Statistics based on your Materials. You agree that Company may (a) make Aggregated Statistics publicly available in compliance with applicable law, and (b) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify You or your Confidential Information.  

End-User Data  You retain all rights, title, and interest in your End-User Data, however, you grant Company a license to use the End-User Data to permit the Company to meet its obligations herein.

Company acknowledges that, as between Company and You, Company owns all right, title, and interest, including all intellectual property rights, in and to the End-User Data you collect the Network. We hereby grant to You a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the End-User Data and perform all acts with respect to the End-User Data as may be necessary for You to meet your obligations herein.

Your Materials  You retain all rights, title, and interest in your Materials, however, you grant Company a license to use the Materials to permit the Company to meet its obligations herein.

Company acknowledges that, as between Company and You, You own all right, title, and interest, including all intellectual property rights, in and to the your Materials. You hereby grant to Company a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display your Materials and perform all acts with respect to your Materials as may be necessary for Company to provide the Services to You , and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display your Materials incorporated within the Aggregated Statistics.

Feedback  We welcome Feedback regarding our Services, but please know that all Feedback You might provide belongs to the Company, and that we’re not obligated to make any changes to the our Services based on the Feedback.

If You or any of your employees or contractors sends or transmits any communications or materials to Company by mail, email, telephone, or otherwise, suggesting or recommending changes to the Company intellectual property, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Company is free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback.  You hereby assign to Company on your behalf, and on behalf of your employees, contractors and/or agents, all right, title, and interest in, and Company is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Company is not required to use any Feedback.

6. LIMITED WARRANTY AND DISCLAIMER

Company warrants that the Services will conform in all material respects to the service levels set forth in Section 4 when accessed and used in accordance with the terms and conditions of this Terms of Service.  Company does not make any representations or guarantees regarding uptime or availability of the Services unless specifically identified in Section 4. The remedies set forth in Section 4 are your sole remedies and Company’s sole liability under the limited warranty set forth in this Section 6. THE FOREGOING WARRANTY DOES NOT APPLY, AND PROVIDER STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS OR SERVICES.

EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN THIS SECTION 6, THE SERVICES ARE PROVIDED “AS IS” AND PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE.  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.  EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN THIS SECTION 6, COMPANY MAKES NO WARRANTY OF ANY KIND THAT THE COMPANY INTELLECTUAL PROPERTY, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, 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.

 

7. INDEMNIFICATION

Company Indemnification  Company shall indemnify You against certain Losses resulting from Third-Party Claims, as described more fully below.

Company shall indemnify, defend, and hold harmless You from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) incurred by You resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Services, or any use of the Services in accordance with this Terms of Service, infringes or misappropriates such third party’s US intellectual property rights, provided that You promptly notify Company in writing of the claim, cooperate with Company, and allow Company sole authority to control the defense and settlement of such claim.

If such a claim is made or appears possible, You agree to permit Company, at Company’s sole discretion, to (a) modify or replace the Services, or component or part thereof, to make it non-infringing, or (b) obtain the right for You to continue use. If Company determines that neither alternative is reasonably available, Company may terminate this Terms of Service, in its entirety or with respect to the affected component or part, effective immediately on written notice to You.

This Section 7 will not apply to the extent that the alleged infringement arises from: (i) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Company or authorized by Company in writing; (ii) modifications to the Services not made by Company; (iii) Your Materials; or (iv) Third-Party products or services.

User Indemnification  You shall indemnify Company against certain Losses resulting from Third-Party Claims, as more fully described below.

You shall indemnify, hold harmless, and, at Company’s option, defend Company from and against any Losses resulting from any Third-Party Claim that your Materials, or any use of the your Materials in accordance with this Terms of Service, infringes or misappropriates such third party’s intellectual property rights and any Third-Party Claims based on your or any Authorized User’s (a) negligence or willful misconduct; (b) use of the Services in a manner not authorized by this Terms of Service; (c) use of the Services in combination with data, software, hardware, equipment or technology not provided by Company or authorized by Company in writing; or (d) modifications to the Services not made by Company, provided that You may not settle any Third-Party Claim against Company unless Company consents to such settlement, and further provided that Company will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.

Sole Remedy 

THIS SECTION 7 SETS FORTH YOUR SOLE REMEDIES AND COMPANY’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. IN NO EVENT WILL COMPANY’S LIABILITY UNDER THIS SECTION 7 EXCEED THE TOTAL FEES PAID BY YOU UNDER THIS TERMS OF SERVICE.

 

8. LIMITATIONS OF LIABILITY  

IN NO EVENT WILL COMPANY BE LIABLE UNDER OR IN CONNECTION WITH THIS TERMS OF SERVICE UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS TERMS OF SERVICE UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO COMPANY UNDER THIS TERMS OF SERVICE.

9. TERM AND TERMINATION

Term 

The term of this Terms of Service begins on the date set forth on the earlier of the date You commence use of the Services, or the date set forth on the first Order Confirmation and, unless terminated earlier pursuant to this Terms of Service’s express provisions, will continue until terminated pursuant to this Terms of Service (the “Term”).

Termination  Either party may terminate this TOS in the event of the other’s material breach or insolvency.  The Company may also terminate if You fail to pay fees when due.

In addition to any other express termination rights set forth in this Agreement:

a. Company may terminate this Terms of Service, effective on written notice to You, if You fail to pay any amount when due hereunder, and such failure continues more than thirty (30) days after Company’s delivery of written notice thereof.

b. Either party may terminate this Terms of Service, effective on written notice to the other party, if the other party materially breaches this Terms of Service, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach; or

c. either party may terminate this Terms of Service, effective immediately upon written notice to the other party, if the other party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

Effect of Termination  You must cease all use of the Services upon termination of this TOS.

Upon expiration or earlier termination of this Terms of Service, You shall immediately discontinue use of the Services.  No expiration or termination will affect your obligation to pay all fees that may have become due before such expiration or termination, or entitle You to any refund.

Any provision of this Terms of Service needed to fulfill its essential purpose shall survive expiration or termination of this Terms of Service.

10. CONFIDENTIALITY  

Each party shall respect the Confidential Information of the other, and only use/disclose the Confidential Information as expressly authorized herein.

Confidential Information

Confidential Information” refers to the following items one party to this Agreement (“Discloser”) discloses to the other (“Recipient”): (a) any document Discloser marks “Confidential”; (b) any information Discloser orally designates as “Confidential” at the time of disclosure, provided Discloser confirms such designation in writing within 5 business days; (c) any source code disclosed by Vendor and any names of actual or potential customers disclosed by Customer, whether or not marked as confidential; and (d) any other nonpublic, sensitive information Recipient should reasonably consider a trade secret or otherwise confidential. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in Recipient’s possession at the time of disclosure; (ii) is independently developed by Recipient without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Recipient’s improper action or inaction; or (iv) is approved for release in writing by Discloser.

Nondisclosure

Recipient shall not use Confidential Information for any purpose other than to facilitate the transactions contemplated by this Agreement (the “Purpose”). Recipient: (a) shall not disclose Confidential Information to any employee or contractor of Recipient unless such person needs access in order to facilitate the Purpose and executes a nondisclosure agreement with Recipient with terms no less restrictive than those of this Section 10; and (b) shall not disclose Confidential Information to any other third party without Discloser’s prior written consent. Without limiting the generality of the foregoing, Recipient shall protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Recipient shall promptly notify Discloser of any misuse or misappropriation of Confidential Information that comes to Recipient’s attention. Notwithstanding the foregoing, Recipient may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. Recipient shall give Discloser prompt notice of any such legal or governmental demand and reasonably cooperate with Discloser in any effort to seek a protective order or otherwise to contest such required disclosure, at Discloser’s expense.

Independent Development

The Disclosing Party acknowledges that the Recipient may be currently or in the future developing information internally, or receiving information from other parties, that may be the same as or similar to the Disclosing Party’s Confidential Information. Accordingly, nothing in this Agreement will be construed as a representation or agreement, or otherwise give rise to an inference, that the Recipient cannot or will not: (a)develop or receive such information; (b)develop or have developed for it products, services, concepts, ideas, systems, or techniques that are similar to or compete with the products, services, concepts, ideas, systems, or techniques contemplated by or embodied in the Confidential Information, provided that the Recipient does not breach any of its obligations under this Agreement in connection with such development; or (c)restrict any assignment or reassignment of, or in any manner to affect or limit, the Recipient’s past, present, and future business activities of any nature, including business activities which may compete with the Disclosing Party.

 

11. Software Developer Terms

We are excited that our users want to help build our Network and improve our Services.  If you are engaged to be a developer for us, the following terms and conditions will also apply to the software and technical services you provide.

If we engage you as a developer, and you accept such engagement to act as an independent contractor in this capacity, then you agree to develop software and provide services related thereto as we may request from time to time.  You agree to provide all such services and Work Product (defined below) hereunder in a timely, professional, and workmanlike manner and in accordance with the terms, conditions, and specifications set forth in this TOS.  You further agree to design, develop, create, test, deliver, install, configure, integrate, customize, and otherwise provide and make fully operational the software we request from you.  You will also provide all Work Product in both object code and source code form within Company’s Github source code repository.

Work Product” means all software, documentation, specifications, and other documents, work product, and materials related thereto, that you provide to us hereunder, together with all ideas, concepts, processes, and methodologies developed in connection therewith, whether or not embodied therein.

The Work Product may include or operate in conjunction with third-party materials. You will identify to us all third-party materials you include in or that are required for use with any Work Product on or prior to delivery of the relevant Work Product and provide to us: (a) a copy of all documentation and third-party license agreements relating to such third-party materials as are available to you; or (b) website or other information specifying where we can access such documentation and third-party license agreements. 

To aid you in your development work, we shall provide you with the resources you need to perform your duties, including providing necessary access to our systems, and all consents, approvals, exception notices, and other communications as may be required.

Subject to all terms and conditions set forth herein, and your provision of the Work Product to our reasonable satisfaction and acceptance, we shall pay you the fees as mutually agreed to in writing between you and us.   

We are and will be the sole and exclusive owner of all right, title, and interest in and to all Work Product, including all intellectual property rights therein. In furtherance of the foregoing: (a) you shall create all Work Product as work made for hire as defined in Section 101 of the Copyright Act of 1976; and (b) to the extent any Work Product or intellectual property right therein does not qualify as, or otherwise fails to be, work made for hire, you shall, and hereby do: (i)assign, transfer, and otherwise convey to us, irrevocably and in perpetuity, throughout the universe, all right, title, and interest in and to such Work Product, including all intellectual property rights therein; and (ii)irrevocably waive any and all claims you may now or hereafter have in any jurisdiction to so-called “moral rights” or rights of droit moral with respect to the Work Product.  

You represent and warrant to us that (a) we will receive good and valid title to all Work Product, free and clear of all encumbrances and liens of any kind; (b) when delivered, the software will contain no harmful code, (c) all Work Product, including all updates, upgrades, new versions, new releases, enhancements, improvements, and other modifications thereof, but excluding third-party materials, is or will be the original creation of Developer; (d) as delivered, installed, specified, or approved by you and used by us or any third party authorized by us, in accordance with this TOS, the Work Product: (i) will not infringe, misappropriate, or otherwise violate any intellectual property right or other right of any third party; and (ii) will comply with all applicable laws.

You shall defend, indemnify, and hold harmless us and our officers, directors, employees, agents, contractors, successors, and assigns (each, an “Indemnitee”) from and against any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers, incurred by Indemnitee resulting from any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise, by a third party that arise out of or result from, or are alleged to arise out of or result from: (a) your breach of any of your representations, warranties, covenants, or obligations under this Agreement; or (b) any negligence or more culpable act or omission (including recklessness or willful misconduct) in connection with the performance or activity required by or conducted in connection with this TOS by you or in connection with performing your services under this TOS.

We may terminate your role as developer for the Company at any time without cause, and without incurring any additional obligation, liability, or penalty under this TOS, by written notice to you.  Upon expiration of your role as a developer, you will promptly deliver all Work Product (irrespective of state of completion) to us, and all materials related to same.

 

12. MISCELLANEOUS  

Click below to read more about our Notice requirements, amendments to this TOS, the law governing this TOS, assignment, and other general terms.

Entire Agreement

This Terms of Service, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Terms of Service, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, this Terms of Service; and (ii) second, any other documents incorporated herein by reference.

Notices

All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the parties at the addresses set forth on the Order Confirmation (or to such other address that may be designated by the party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or email (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Terms of Service, a Notice is effective only: (i) upon receipt by the receiving party; and (ii) if the party giving the Notice has complied with the requirements of this Section.

Force Majeure

In no event shall either party be liable to the other party, or be deemed to have breached this Terms of Service, for any failure or delay in performing its obligations under this Terms of Service (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such party’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.

Amendment and Modification; Waiver

No amendment to or modification of this Terms of Service is effective unless it is in writing and signed by an authorized representative of each party. No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Terms of Service, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Terms of Service will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

Severability

If any provision of this Terms of Service is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Terms of Service or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties shall negotiate in good faith to modify this Terms of Service so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

Governing Law; Submission to Jurisdiction

This Terms of Service is governed by and construed in accordance with the internal laws of the State of Washington without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Washington. Any legal suit, action, or proceeding arising out of or related to this Terms of Service or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Washington in each case located in the city of Seattle and County of King, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.

Assignment

You may not assign any of its rights or delegate any of your obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Company.  Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating party of any of its obligations hereunder. This Terms of Service is binding upon and inures to the benefit of the parties and their respective permitted successors and assigns.

Independent Contractors

Nothing in this Terms of Service shall be construed as creating a partnership, agency, joint venture or any legal entity between Company and You. Company is not acting as your representative or agent with respect to the Services. The relationship between Company and You is one of independent contractors.

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