These Terms of Service (“Terms”) are between Replystream, Inc. (“Company”), and the customer, on behalf of itself and its applicable Affiliates (“Customer”). The authorized party signing or electronically submitting the Order or accessing the Services represents that it has the authority to bind the Customer and understands and agrees to the Order, these Terms, and the applicable Service Descriptions (collectively the “Agreement”).
1. DEFINITIONS. As used in the Agreement, the following defined terms shall apply:
1.1. Affiliate means, with respect to a party, any entity which directly or indirectly controls, is controlled by, or is under common control with such party, where “control” means the power, directly or indirectly, to direct, or to cause the direction of, the management and policies of an entity, whether through majority ownership of voting securities or equity interests.
1.2. Customer Content means any files, documents and other information belonging to Customer or users as uploaded to Customer’s Service account for storage and/or sharing with third parties, and is not related to Company servicing or accessing Customer’s account.
1.3. Effective Date means the earlier of the date (i) Customer starts a free trial, or (ii) Customer completes an Order.
1.4. Order means any initial or subsequent ordering document and/or online request for access to the Services submitted to Company, a Company authorized reseller and/or through Company product websites.
1.5. Services means the generally available Company software, support, training and services offerings (“Services”) as requested by Customer and specified by Company on an Order. Company may update the Services at any time.
1.6. Updates means any corrections, bug fixes, new features or functions added to the Services, but shall not include any new versions that Company markets and sells separately.
1.7. Use Level means the model by which Company measures, prices and offers the Service to Customer as set forth on the applicable price list, websites and/or Orders.
2.1. Right to Use Service. Subject to these Terms, Company will provide the Services set forth in an Order for Customer’s use in accordance with the Agreement and applicable Use Levels. Company hereby grants to Customer a limited, personal, non-exclusive, non-transferable, non sub-licensable right to use any components as may be required to access and use the Services. Updates to the Services are included in the Fees.
2.2. Limitations on Use. Except to the extent permitted by applicable law, Customer agrees, on behalf of itself and its users, not to (i) modify, distribute, prepare derivative works of, reverse engineer, reverse assemble, disassemble, decompile or attempt to decipher any code relating to the Services and/or Company technology; (ii) knowingly or negligently access or use the Services in a manner that abuses or disrupts the Company or any third party, or attempt to gain unauthorized access to any of the above through unauthorized means, (iii) transmit through or post on the Services any material that is deemed abusive, harassing, obscene, slanderous, fraudulent, libelous or otherwise objectionable or unlawful; (iv) market, offer to sell, and/or resell the Services to any unauthorized third party; (v) use the Services in violation of Company policies, applicable laws, ordinances or regulations; (vi) transmit through or post on the Services any material that may infringe the intellectual property rights or other rights of third parties, including trademark, copyright, data privacy or right of publicity; (vii) transmit or post on the Services any material that contains software viruses or other harmful or deleterious computer code, files or programs; (viii) use the Services directly or indirectly for competitive benchmarking or other competitive analysis if Customer is a direct competitor of the applicable Service. Company shall have sole and exclusive discretion to determine applicability of the restrictions set forth above and any violations thereof.
2.3. Proprietary Rights. Except for the limited subscription rights granted herein, Customer has no right, title or interest in or to the Services or any components provided by Company in connection with the Services or any intellectual property rights related thereto. Customer acknowledges that Company or its licensors retain all proprietary right, title and interest in and to, or practiced in connection with, the Services and any components, including, without limitation, all modifications, enhancements, derivative works, configuration, translations, upgrades and interfaces thereto.
3. ORDERS, FEES, PAYMENT AND USAGE.
3.1. Orders. All Orders are subject to acceptance by Company in its discretion. All Customer information provided by or on behalf of Customer must be current, complete and accurate and Customer is responsible for keeping such information updated.
3.2. Fees and Payment. Customer is responsible for all fees applicable to the Services specified on the Order, including any one-time implementation fees (“Fees”). All Fees are due and payable as set forth in the Order. Customer agrees to notify Company of any fee dispute within fifteen (15) days of the invoice date and Customer agrees to work in good faith to promptly resolve any dispute and pay fees within fifteen (15) days following resolution of the dispute.
3.3. Additional Services. Customer may order additional Services at any time. Unless otherwise agreed in the applicable Order, any additional Services ordered by Customer following the Effective Date are subject to these Terms, and shall be coterminous with the Term for existing Services.
3.4. Late Payments. Company reserves the right, in its discretion, to suspend or terminate the Services or any portion thereof for non-payment of undisputed Fees.
3.5. Taxes and Withholding. Customer shall be responsible for all applicable taxes imposed by any government entity or collecting agency based on the Services. If Customer fails to satisfy its Tax obligations herein, Customer agrees to reimburse Company for any Taxes paid on Customer’s behalf and indemnify and hold Company harmless against any claim, liability and/or penalties resulting therefrom.
3.6. Usage. Company reserves the right to review Customer’s use of Services to confirm compliance with applicable Use Levels, and to terminate or suspend Customer’s access for overuse and/or misuse. Customer agrees to pay for any overage in excess of permitted Use Levels.
4. TERM AND TERMINATION.
4.1 Term. These Terms shall apply as long as any Order is in effect. The period that Customer may access and use the Services (“Term”) shall be as specified in the Order and may include a trial period (“Trial Term”), initial period (“Initial Term”) and a renewal period (“Renewal Term”).
4.2. Termination for Cause. Either party may terminate the Agreement (i) if the other party breaches any of its material obligations under the Agreement and fails to cure within thirty (30) days of receipt of written notice from the non-breaching party, or (ii) if the other party becomes insolvent or bankrupt, liquidated or is dissolved, or ceases substantially all of its business, or (iii) immediately for a breach by Customer of Section 2 or Section 5.
4.3. Effect of Termination. Upon termination of the Agreement for any reason, Customer will immediately discontinue all access and use of the Services. Company has no obligation to maintain Customer Content following termination and, in any event, will destroy or delete Customer Content within thirty (30) days of Customer request, subject to compliance with Company policies and applicable law. Neither party shall be liable for any damages resulting from termination of the Agreement; provided, however, termination shall not affect any claim arising prior to the effective termination date.
4.4. Survival. The provisions of Sections 3 (Fees), 4.4 (Effect of Termination), 5 (Customer Content and Customer Accounts), 8 (Indemnification), 9 (Limitation of Liability), and 10.9 (Notices) shall survive any termination of the Agreement.
5. CUSTOMER CONTENT AND CUSTOMER DATA.
5.1. Customer Content. Customer retains all rights to any and all of its Customer Content and Company shall not own or license any data, content, information or material in such Customer Content. Each party shall apply reasonable technical, organizational and administrative security measures to keep Customer Content protected in accordance with industry standards, and Customer shall retain a current copy of Customer Content outside the Services. Company will not monitor Customer’s or its user’s use of the Services, and Company will not view, access or process any Customer Content, except: (i) for the sole purpose of providing the Services, (ii) as directed or instructed by Customer and its users, and/or (iii) for compliance with Company policies, applicable law, regulation, or governmental request. Customer shall comply with all intellectual property laws related to the Customer Content and legal duties applicable to Customer as a data controller by virtue of the submission or storage of Customer Content within the Services, including providing all information or notices Customer is required by law to provide to users and obtain consent of the users, where required. Notwithstanding anything to the contrary, this Section expresses the entirety of Company obligations with respect to Customer Content.
5.2. Customer Data. Customer is solely responsible for (i) the configuration of Customer’s Services account, (ii) the operation, performance and security of Customer’s equipment, networks and other computing resources used to connect to the Services, (iii) ensuring all users exit or log off from the Services at the end of each session, (iv) maintaining the confidentiality of Customer’s accounts, user id’s, conference codes, passwords and personal identification numbers used in conjunction with the Services, and (v) all uses of the Services by Customer and its users. Company reserves the right to suspend the Services or terminate the Agreement if Customer misuses or otherwise shares login information among users. Customer will notify Company immediately of any unauthorized use of its account or any other breach of security. Company will not be liable for any loss that Customer may incur as a result of a third party using its password or account, and Customer may be held liable for any such losses incurred by Company and/or another party.
5.3 Meta Data. Company
6. COMPLIANCE WITH LAWS. In connection with the performance, access and use of the Services under the Agreement, each party agrees to comply with all applicable laws, rules and regulations including, but not limited to, export and import, data protection, and privacy laws and regulations. Specifically, Customer shall provide the relevant persons and/or participants with all information or notices Customer is required by applicable privacy and data protection laws to provide and, if necessary, obtain the consent of or provide choices to such persons and/or participants as required. Notwithstanding any other provision in this Agreement, Company shall have the right to immediately terminate this Agreement for noncompliance with applicable laws.
7. WARRANTIES. COMPANY WARRANTS THAT THE SERVICES WILL CONFORM TO THE SERVICE DESCRIBED ON THE ORDER AND UNDER NORMAL USE. COMPANY DOES NOT REPRESENT OR WARRANT THAT (I) THE USE OF THE SERVICES WILL BE TIMELY, UNINTERRUPTED OR ERROR FREE, OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (II) THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, OR (III) ERRORS OR DEFECTS WILL BE CORRECTED. COMPANY ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY UNDER THIS WARRANTY WILL BE, AT COMPANY SOLE OPTION AND SUBJECT TO APPLICABLE LAW, TO PROVIDE CONFORMING SERVICE OR TO TERMINATE THE NON-CONFORMING SERVICES AND THIS AGREEMENT OR THE APPLICABLE ORDER, AND PROVIDE A PRO-RATED REFUND OF ANY PREPAID FEES FROM THE PERIOD OF NON-CONFORMANCE THROUGH THE END OF THE REMAINING TERM. TO THE EXTENT PERMITTED BY APPLICABLE LAW, COMPANY DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES AND CONDITIONS, THEREFORE SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO CUSTOMERS LOCATED IN SUCH JURISDICTIONS.
8.1. Indemnification by Company. Subject to Sections 8.2. and 8.3. below, Company shall indemnify and defend Customer against any third party Infringement Claim brought against Customer, and pay reasonable attorney’s fees, court costs, damages finally awarded, or reasonable settlement costs with respect to such Infringement Claim; provided that: (i) Customer promptly notifies Company in writing of an Infringement Claim such that Company is not prejudiced by any delay of such notification; (ii) Company will have sole control over the defense and any settlement of any Infringement Claim; and (iii) Customer will provide reasonable assistance in the defense of same. Company will reimburse Customer for reasonable expenses incurred in providing such assistance. Company shall not enter into any settlement agreement which imposes any obligation on Customer without Customer’s prior written consent. For the purposes of this Agreement, “Infringement Claim” means any claim, suit or proceeding brought against a Customer based on an allegation that the Services, as used by Customer in accordance with this Agreement and the applicable documentation, infringes upon any patent, copyright or violates any trade secret rights of any third party.
8.2. Infringement Cures. If Customer’s use of any of the Services is, or in Company’s opinion is likely to be, enjoined as a result of an Infringement Claim, Company shall, at its sole option and expense, either (i) procure for Customer the right to continue to use the Services as contemplated herein, or (ii) replace or modify the Services to make their use non-infringing without degradation in performance or a material reduction in functionality. If options (i) and (ii) above are not reasonably available, Company may, in its sole discretion and upon written notice to Customer, terminate this Agreement, cancel access to the Services and refund to Customer any prepaid, but unused Fees.
8.3. Limitation. Company assumes no liability, and shall have no liability, for any Infringement Claim based on (i) Customer’s access to and/or use of the Services following notice of an Infringement Claim; (ii) any modification of the Services by Customer or at its direction; (iii) Customer’s combination of the Services with third party programs, services, data, hardware, or other materials; or (iv) any trademark or copyright infringement involving any marking or branding not applied by Company or involving any marking or branding applied at Customer’s request.
8.4. Exclusive Remedy. THE FOREGOING STATES COMPANY SOLE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY WITH RESPECT TO ANY INFRINGEMENT CLAIM HEREUNDER.
8.5. Indemnification by Customer. Customer shall indemnify and defend Company against any third party claim brought against Company resulting from a breach of Section 2.2 or 5.2 or alleging that any Customer Content submitted by Customer infringes upon any patent or copyright, or violates trade secret or privacy rights of any party, and shall pay reasonable attorney’s fees, court costs, damages finally awarded, or reasonable settlement costs with respect to any such claim; provided that: (i) Company promptly notifies Customer in writing of such a claim such that Customer is not prejudiced by any delay of such notification, (ii) Customer will have sole control over the defense and any settlement of any such claim, and (iii) Company will provide reasonable assistance in the defense of same. Customer will reimburse Company for reasonable expenses incurred in providing such assistance. Company may participate in the defense or settlement of such a claim with counsel of its own choice and at its own expense; however, Company shall not enter into any settlement agreement or otherwise settle any such claim without Customer’s express prior written consent.
9. LIMITATION ON LIABILITY. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR TO ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL LOSS, EXEMPLARY OR OTHER DAMAGES, WHETHER DIRECT OR INDIRECT, ARISING OUT OF OR RELATING TO: (i) LOSS OF DATA, (ii) LOSS OF INCOME, (iii) LOSS OF OPPORTUNITY, (iv) LOST PROFITS, (v) COSTS OF RECOVERY OR ANY OTHER DAMAGES, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR VIOLATION OF STATUTE, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SOME JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY. EXCEPT FOR (a) A PARTY’S INDEMNIFICATION OBLIGATIONS (b) A BREACH BY CUSTOMER OF SECTIONS 2 OR 5, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL CUMULATIVE LIABILITY OF EITHER PARTY AND THEIR RESPECTIVE LICENSORS AND SUPPLIERS ARISING OUT OF THIS AGREEMENT AND/OR THE TERMINATION THEREOF, SHALL BE LIMITED TO THE SUM OF THE AMOUNTS PAID FOR THE APPLICABLE SERVICE DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY. THE FOREGOING SHALL NOT LIMIT CUSTOMER’S OBLIGATIONS TO PAY ANY FEES AND/OR OTHER SUMS DUE UNDER ANY ORDER.
10. ADDITIONAL TERMS.
10.1. Services Trial. Company may make the Services available to Customer on a Trial Term until the earlier of the (i) end date of the Trial Term stated on the applicable Order, or (ii) the start date of the Initial Term of paid Service. Additional trial terms and conditions may apply and be stated on the Order Form, and any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. Any Customer Content or data Customer enters into the Services, and any customizations made to the Services, during the Trial Term will be permanently lost unless Customer (i) purchases a subscription to the Service on or before the end of the Trial Term, or (ii) exports such data, before the end of the Trial Term. Notwithstanding Section 9 Warranties, during the Trial Term the services are provided “as-is” without any warranty or indemnity, to the extent permitted by law, and all other terms of this Agreement otherwise apply. Company reserves the right to modify or discontinue any trials or promotions at any time without notice
10.2. Suspension of Service. Company may temporarily suspend the Services if Company determines, in its sole discretion, that continued provision would compromise the security of the Services due to, without limitation, hacking attempts, denial of service attacks, mail bombs or other malicious activities, and Company will take action to promptly resolve any such security issues. Company agrees to notify Customer of any such suspension and subsequent reactivation of the Services.
10.3. High-Risk Use. Customer acknowledges that the Services are not designed or intended for access and/or use in or during high-risk activities.
10.4. Assignment. Neither party may assign its rights or delegate its duties under this Agreement either in whole or in part without the other party’s prior written consent, which shall not be unreasonably withheld, except that either party may assign this Agreement as part of a corporate reorganization, consolidation, merger, or sale of all or substantially all of its assets. Any attempted assignment without such consent shall be void. This Agreement will bind and inure to the benefit of each party’s successors or assigns.
10.5. Notices. All legal notices required under this Agreement shall be in writing and delivered in person or by certified or registered express mail to the address last designated on the account for Customer, and the Company contracting entity as specified below, or such other address as either party may specify by notice to the other party as provided herein. Notice shall be deemed given (i) upon personal delivery; (ii) if delivered by air courier or email, upon confirmation of receipt; or (iii) five (5) days after deposit in the mail. Non-legal notices may be provided to the email address specified on the applicable Order and shall be deemed effective on the next business day following the date and time stamp on the sender’s email. Company may also provide Customer with notice postings on the Company website. A copy of all Customer legal notices must also be sent to Company Legal Department, 7414 Hollister Avenue, Goleta, California 93117 USA.
10.6. Entire Agreement; Order of Precedence. This Agreement sets forth the entire agreement and understanding of the parties relating to the Services and supersedes all prior and contemporaneous oral and written agreements. For any conflict between an executed Order, the Service Descriptions and these Terms, the conflict shall be resolved in that order, but only for the specific Services described in the applicable Order. For any conflict between these Terms and any BAA, this Agreement shall control. Nothing contained in any document submitted by Customer shall in any way add to or otherwise modify the Agreement or Company program terms. The Terms may be updated by Company from time to time without notice (but will be identified by its last updated date) and may be reviewed at www.Companyonline.com. Customer’s continued access to and use of the Service constitutes acceptance of the then-current Terms.
10.7. General Terms. Captions and headings are used herein for convenience only, are not a part of this Agreement, and shall not be used in interpreting or construing this Agreement. If any provision of this Agreement is declared by a court of competent jurisdiction to be invalid, illegal, or unenforceable, such provision shall be severed from this Agreement and the other provisions shall remain in full force and effect. The parties are independent contractors and nothing in this Agreement creates a partnership, franchise, joint venture, agency, fiduciary or employment relationship between or among the parties. No person or entity not a party to this Agreement will be deemed to be a third party beneficiary of this Agreement or any provision hereof. Company authorized resellers and distributors do not have the right to make modifications to this Agreement or to make any additional representations, commitments, or warranties binding on Company. No waiver or amendment of any term or condition of this Agreement shall be valid or binding on any party unless agreed to in writing by each party. Company failure to enforce any term of this Agreement will not be construed as a waiver of the right to enforce any such terms in the future. Unless otherwise specified, remedies are cumulative. This Agreement may be executed by electronic signature and in one or more counterparts. No party will be responsible for any delay, interruption or other failure to perform under this Agreement due to force majeure events and acts beyond a party’s reasonable control, but only for so long as such conditions persist. Force majeure events may include: natural disasters; wars; terrorist activities, activities of local exchange carriers, telephone carriers, wireless carriers, and Internet service providers, labor disputes; and acts of government.