License Grant & Restrictions
Subject to the terms and conditions of this Agreement, Service Provider hereby grants Customer a non-exclusive, non-transferable, non-assignable worldwide right to access and use the Service (as defined below) provided hereunder solely for Customer’s own internal business purposes. All rights not expressly granted to Customer are reserved by Service Provider and its licensors.
Limitations on Use
Customer may not release to any third party the results of any evaluation of the Service performed by or on behalf of Customer or for any other benchmarking or competitive purposes without the prior written approval of Service Provider.
Customer shall not (and shall not permit others to) (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the Content in any way; (ii) modify or make derivative works based upon the Service or the Content; (iii) create Internet "links" to the Service or "frame" or "mirror" any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service.
Additionally, Customer shall not use the Service to knowingly: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks.
Customer is responsible for all activity occurring under Customer’s User accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer’s use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. Customer shall: (i) notify Service Provider immediately of any unauthorized use of any password or account or any other known or suspected breach of security with respect to the Service; (ii) report to Service Provider immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by Customer or Customer’s Users; and (iii) not impersonate another Service Provider user or provide false identity information to gain access to or use the Service.
Account Information, Data and Confidentiality
Service Provider does not own any Customer Data. Customer, not Service Provider, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use all Customer Data. Service Provider shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data except as a result of Service Provider’s negligence, gross negligence or willful misconduct. Service Provider shall treat all Customer Data as Confidential Information and not disclose Customer Data to any other party as provided in this Section 4. Customer agrees and acknowledges that (i) Service Provider is not obligated to retain Customer Data for longer than 90 days after termination, and (ii) Service Provider has no obligation to retain Customer Data, and may delete Customer Data.
Except as expressly provided in this Agreement, a party shall not possess, access, use or disclose any of the other party’s Confidential Information except to perform its obligations or exercise its rights under the Agreement. The receiving party shall use reasonable care to protect the other party’s Confidential Information, but in no event less care than it employs in protecting its own Confidential Information. Each party shall be responsible for any breach of confidentiality by its employees and contractors. Promptly after any termination of this Agreement (or at the disclosing party's request at any other time), the receiving party shall return all of the other's tangible Confidential Information. Each party may disclose only the general nature, but not the specific terms, of this Agreement without the prior consent of the other party; provided, either party may provide a copy of this Agreement or otherwise disclose its terms in connection with any financing transaction or due diligence inquiry or legal or regulatory requirement. The restrictions herein will not prevent a party from complying with any law, regulation, court order or other legal requirement that purports to compel disclosure of any Confidential Information. The receiving party will promptly notify the disclosing party upon learning of any such legal requirement, and cooperate with the disclosing party in the exercise of its right to protect the confidentiality of the Confidential Information before any tribunal or governmental agency.
Intellectual Property Ownership
Service Provider alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Service Provider Technology, the Content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any other party relating to the Service. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Service, the Service Provider Technology or the Intellectual Property Rights owned by Service Provider. The Service Provider name, the Service Provider logo, and the product names associated with the Service are trademarks of Service Provider or third parties, and no right or license is granted to use them. Customer shall own all right, title and interest, including Intellectual Property Rights, in and to the Customer Data. Customer grants Service Provider an irrevocable, perpetual, worldwide, royalty-free, nonexclusive license to Customer Data for the purpose of developing, improving, and operating the Services.
Third Party Interactions
During use of the Service, Customer may enter into correspondence with third parties through the Service. Any such activity, and any terms, conditions, warranties or representations associated with such activity, are solely between Customer and the applicable third-party. Service Provider and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between Customer and any such third-party. Service Provider does not endorse any sites on the Internet that are linked through the Service. Service Provider may provide these links to Customer only as a matter of convenience, and in no event shall Service Provider or its licensors be responsible for any content, products, or other materials on or available from such sites. Service Provider provides the Service to Customer pursuant to the terms and conditions of this Agreement. Customer recognizes, however, that certain third-party providers of ancillary software, hardware or services may require Customer’s agreement to additional or different license or other terms prior to Customer’s use of or access to such software, hardware or services.
Charges and Payment of Fees
Customer shall pay all fees or charges (except for any Disputed Fees as defined below) as specified on the www.pomello.com website or the Service Order Form. All payment obligations are non-cancelable and all amounts paid are nonrefundable. Service Provider reserves the right to modify its fees and charges and to introduce new charges at any time. Neither party will disclose any pricing terms or other terms of this Agreement to anyone other than its attorneys, accountants, and other professional advisors under a duty of confidentiality except (a) as required by law, or (b) pursuant to a mutually agreeable press release.
Service Provider charges and collects in advance for the Services. Service provider's fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties, excluding only taxes based solely on Service Provider's income. Customer will be billed, and payments will be made, in U.S. dollars. If Customer believes Customer’s bill is incorrect, Customer must contact Service Provider in writing within 60 days of the date of the invoice containing the amount in question to be eligible to receive an adjustment or credit (“Disputed Fees”). Except as expressly provided herein, all payments are nonrefundable.
Customer agrees to provide Service Provider with accurate billing and contact information, including Customer’s legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact and Administrator. Customer agrees to update this information within 30 days of any change to it. If the contact information Customer has provided is false or fraudulent, Service Provider reserves the right to terminate Customer’s access to the Service in addition to any other legal remedies.
Non-Payment and Suspension
In addition to any other rights granted to Service Provider herein, Service Provider reserves the right to suspend or terminate this Agreement and Customer’s access to the Service if Customer’s account becomes delinquent, excluding any Disputed Fees, and is uncured for a period of thirty (30) days from the date of notice of such delinquency. Delinquent invoices, excluding Disputed Fees, are subject to interest of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is less, from the date due, plus all expenses of collection. If Service Provider initiates termination of this Agreement for cause, as further described in Section 12, Customer will be obligated to pay the balance due through the date of Termination. Customer agrees that Service Provider may charge such unpaid fees to Customer’s credit card or otherwise bill Customer for such unpaid fees.
This Agreement shall remain in full force and effect while Customer uses the Service in strict accordance with the terms, conditions, and limitations of this Agreement. Service Provider may terminate or suspend Customer’s access to the Service or any portion or feature thereof at any time, for any reason (or for no reason), and without warning, which may result in the forfeiture and destruction of all information associated with Customer’s account. Service Provider may also terminate or suspend the Service immediately, without prior notice or liability, if Customer breaches any of the terms or conditions of this Agreement. Upon termination of this Agreement, Customer’s right to use the Service will immediately cease. The Service is subject to modification, restriction, or suspension from time to time at Service Provider’s sole discretion, for any purpose deemed appropriate by Service Provider.
Representations & Warranties
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Service Provider further represents and warrants that (a) it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that; (b) the Service will perform substantially in accordance with the online Service Provider help documentation under normal use and circumstances. Customer further represents and warrants that Customer has not falsely identified itself nor provided any false information to gain access to the Service and that Customer’s billing information is correct.
Customer shall defend, indemnify, and hold harmless Service Provider, its affiliates, and each of its, and its affiliates, employees, contractors, directors, supplier snd representatives, from and against any liabilities, losses, claims, and expenses, including reasonable attorneys’ fees, arising from Customer’s actions in connection with any unauthorized use of the Service or Software, including any claim that such actions violate any applicable law or third party right.
Disclaimer of Warranties
EXCEPT AS PROVIDED UNDER THE TERMS AND CONDITIONS OF THIS AGREEMENT AND ANY EXHIBITS INCLUDED HEREIN, SERVICE PROVIDER AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. SERVICE PROVIDER AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED THROUGH THE SERVICE WILL MEET REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO STRICTLY ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY SERVICE PROVIDER AND ITS LICENSORS.
SERVICE PROVIDER'S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS THAT ARE BEYOND SERVICE PROVIDER’S REASONABLE CONTROL. SERVICE PROVIDER IS NOT RESPONSIBLE FOR DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
Limitation of Liability
EXCEPT FOR A PARTY’S BREACH OF CONFIDENTIALITY OR OBLIGATION OF INDEMNIFICATION, IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. EXCEPT FOR A PARTY’S BREACH OF CONFIDENTIALITY OR OBLIGATION OF INDEMNIFICATION, IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND OTHER THAN AS A RESULT OF SERVICE PROVIDER’S NEGLIGENCE, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
The Customer authorizes the Service Provider to use the Customer's company name, logo or other applicable trademarks, at any time, for the purpose of referencing the company as a customer on the Service Provider's Website or in other promotional marketing materials. If you do not wish to be referenced please contact Pomello at email@example.com.
All notices required to be provided under this Agreement must be delivered in writing by nationally recognized overnight delivery service, by electronic facsimile (fax), by electronic mail as described below, or by US mail to the other party at the address set forth beneath such party’s signature. Customer may give notice to Service Provider by emailing firstname.lastname@example.org and Service Provider may give notice by emailing Customer’s billing contact. All notices shall be deemed to have been given upon receipt or, if earlier, two (2) business days after being deposited in the mail as required above. Either party may change its address by giving timely notice of the new address to the other party pursuant to this Section and identifying in such notice the date on which such change is effective.
Neither party may assign this Agreement to any third party except upon prior written consent, not to be unreasonably withheld, except to (i) a parent or subsidiary of such party, (ii) an acquirer of all or substantially all of the assets of such party, or (iii) in connection with a reorganization or merger. Any purported assignment in violation of this section shall be void. Subject to the foregoing, this Agreement and each and all of the provisions hereof bind and benefit the parties and their respective heirs, executors, administrators, legal representatives, successors and assigns.
This Agreement shall be governed by California law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction. Unless it is a mutually executed order form that references these terms (each, an “Order Form”), no text or information set forth on any other purchase order, preprinted form or document, shall add to or vary the terms and conditions of this Agreement. In the event any terms and conditions set forth on an Order Form conflict with any of the terms and conditions contained herein, the terms and conditions on the Order Form shall control. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between Customer and Service Provider as a result of this Agreement or use of the Service. The failure of either party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing. This Agreement comprises the entire agreement between Customer and Service Provider regarding the subject matter contained herein and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding such subject matter. The following Sections shall survive any expiration or termination of this Agreement: Service Provider’s duty of confidentiality in Section 4, Sections 5, 10 through 15, 18, 19, and 20.
As used in this Agreement:
"Content" means the audio and visual information, documents, software, products, data, and services contained in or made available via the Service;
"Confidential Information" means all financial, business or technical information that is disclosed by or for a party in relation to this Agreement (including all copies and derivatives thereof) and which are marked or otherwise identified as proprietary or confidential at the time of disclosure, or which by their nature would be understood by a reasonable person to be proprietary or confidential but not including any information that the receiving party can demonstrate is provided by a third party without breach of any obligation to the disclosing party, generally available to the public without breach of this Agreement or independently developed by it without reliance on such information;
"Customer Data" means any data, information or material that Customer or Customer’s Users, subscribers or partners may disclose or submit to Service Provider or the Service in the course of using the Service;
"Intellectual Property Rights" means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world;
"Administrator(s)" means those Users designated by Customer who are authorized to create Customer accounts and otherwise administer Customer’s use of the Service;
"Service Provider Technology" means all of Service Provider's proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to Customer by Service Provider in providing the Service;
"Service(s)" means Service Provider's online services described by Service Provider on www.pomello.com, developed, operated, and maintained by Service Provider and accessible via www.pomello.com or another designated web site or IP address, or ancillary online or offline products and services provided or licensed to Customer by Service Provider, to which Customer is being granted access under this Agreement, including the Service Provider Technology, and the Content;
"User(s)" means Customer’s employees, representatives, consultants, contractors or agents who are authorized to use the Service and have been supplied user identifications and passwords by Customer (or by Service Provider at Customer’s request).