Terms of Service
Customer (“Customer,” as listed in the Order (defined below)) and Strikedeck, Inc. (“Strikedeck”), hereby agree to the following:
These Terms of Service (“Terms”) shall apply to Customer’s use of Strikedeck‘s (or related third party) subscription services, packaged professional services, all linked pages, content, products and offline components (“Service(s)”) identified in one or more ordering documents signed by the Customer, including any exhibits or statements thereto (“Order(s)”). These Terms and all Orders (collectively referred to as the “Agreement”) represent the parties’ entire understanding regarding the Services and shall control over any different or additional terms of any purchase order or other non-Strikedeck ordering document, and no terms included in any such purchase order or other non-Strikedeck ordering document shall apply to the Services. In the event of a conflict between these Terms and an Order, the terms of the Order shall control.
II. Right to Use the Services
During the Subscription Term set forth in an Order (“Subscription Term”), Strikedeck grants to Customer, a non-transferable (except pursuant to Section XIII), non-exclusive, non-sublicensable, worldwide right to permit those individuals authorized by Customer or on Customer’s behalf, and who are Customer’s employees, agents or contractors (“Users”), to access and use the Services subject to the terms of the Agreement.
Customer shall be solely responsible for obtaining and maintaining appropriate Customer-side equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, computers, computer operating system and web browser (collectively, “Equipment”).
III. Usage Restrictions and Representations
Except as expressly permitted hereunder, Customer shall not directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation or data related to or provided with the Services (whether proprietary to Strikedeck or third party) (“Software”); (ii) modify, translate, or create derivative works based on the Services or Software; or copy (except for archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or Software; (iii) knowingly or negligently use or access the Services to build or support, and/or assist a third party in building or supporting, products or services competitive to Strikedeck; or (iv) remove any proprietary notices or labels from the Services or Software. Customer shall use the Services and Software only for its own internal business operations, and not for the operation of a service bureau or timesharing service, or otherwise for the benefit of a third party.
Customer shall not knowingly or willfully use the Services in any manner that is intended to damage, disable, overburden, impair or otherwise interfere with Strikedeck’s provision of the Services. Customer shall be responsible for maintaining the security of Customer’s account access passwords. Customer and Strikedeck agree to make every reasonable effort to prevent unauthorized third parties from accessing the Services. Customer shall be liable for all acts and omissions of its Users.
Strikedeck reserves onto itself all rights, title and interest in and to the Services and Software (including all derivatives or improvements thereof) not expressly granted to Customer under this Agreement. Strikedeck shall use commercially reasonable efforts to ensure the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to the Services and Software (including all derivatives and improvements thereof). All suggestions, enhancements requests, feedback, recommendations or other input provided by Customer or any other party relating to the Services or Software shall be owned by Strikedeck, and Customer hereby does and shall make all assignments and take all reasonable acts necessary to accomplish the foregoing ownership. Any rights not expressly granted herein are reserved by Strikedeck.
Customer owns any data, information or material originated by Customer that Customer submits or compiles while using the Services (“Customer Data”). Strikedeck has no ownership rights in or to Customer Data. Customer shall use commercially reasonable efforts to ensure the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to Customer Data (including all derivatives and improvements thereof). Customer Data shall be deemed to be Customer Confidential Information pursuant to Section IX below.
V. Billing and Payment
Customer shall pay all undisputed fees set forth in an Order, net thirty (30) days following the invoice date from Strikedeck. All fees are non-cancelable and non-refundable, except in the event of a material breach of the Agreement by Strikedeck, in which case Customer shall receive a pro-rata refund of prepaid by unused fees. All fees are exclusive of taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties (excluding taxes based on Strikedeck’s income), even if such amounts are not listed on an Order. Customer shall pay all fees in U.S. Dollars or in such other currency as agreed to in writing by the parties.
If at any time Customer exceeds the number of Users, Strikedeck shall notify Customer and Customer shall bring its usage within the limits of such Users. If Customer fails to do so within thirty (30) days of receipt of Strikedeck’s notice, Strikedeck reserves the right to charge and Customer shall pay Strikedeck’s then-current usage fees for such overage.
VI. Term and Termination
The Agreement shall commence upon the Start Date set forth in any Order and, unless earlier terminated as set forth below, continue for the Subscription Term. Subject to such earlier termination, the Subscription Term shall automatically renew for additional, successive periods equivalent to the original Subscription Term length (each, a “Renewal Subscription Term”) unless either party provides the other party with written notice of non-renewal at least ten (10) days before the end of the then-current Subscription Term.
The provisions of Sections V, VI, VII (with respect to disclaimer of warranties), VIII, IX, and XIII shall survive any termination of the Agreement.
In the event of a material breach by either party, the non-breaching party shall have the right to terminate the applicable Order if such breach has not been cured within thirty (30) days of written notice from the non-breaching party specifying the breach in detail. Strikedeck may immediately suspend Customer’s password, account, and access to the Services if: (i) Customer fails to make payment within ten (10) days after Strikedeck has provided Customer with notice of such failure; or (ii) Customer violates Sections II, III, IV, or IX. Any suspension pursuant to the preceding sentence shall not relieve Customer of its payment obligations. If Strikedeck terminates an Order for Customer’s material breach, all fees set forth on such Order shall remain due and payable in accordance with the applicable payment terms described in Section V above.
Upon any termination of an Order, Customer’s right to access and use the Services covered by that Order shall terminate. Notwithstanding the foregoing, at Customer’s request if received within thirty (30) days of termination of the Order, Strikedeck shall permit Customer to access the Services solely to the extent necessary for Customer to retrieve a file of Customer Data then in Strikedeck’s possession. Customer acknowledges and agrees that Strikedeck has no obligation to retain Customer Data, and Strikedeck shall irretrievably delete and destroy Customer Data after thirty (30) days following the termination of the Order.
VII. Representations, Disclaimer of Warranties, Indemnities
Each party represents and warrants to the other party that it has the power and authority to enter into the Agreement. Strikedeck warrants to Customer that it shall use best efforts to: (a) perform the Services substantially in accordance with its documentation under normal use; and (b) provide the Services in a timely, professional and workmanlike manner consistent with generally accepted industry standards. Customer must notify Strikedeck of any of the above-described warranty deficiencies within thirty (30) days from performance of the relevant Services to receive warranty remedies.
For breach of the express warranties set forth above, Customer’s exclusive remedy shall be the re-performance of the deficient Services in a conforming manner, or if Strikedeck cannot re-perform such deficient Services as warranted, Customer shall be entitled to recover the fees paid to Strikedeck attributable to such deficient Services, and such refund shall be Strikedeck’s entire liability.
The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, or because of other causes beyond Strikedeck’s reasonable control, but Strikedeck shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled unavailability of the Services and to minimize the duration and impact of any such downtime.
Strikedeck shall defend, indemnify and hold Customer harmless against any loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with claims, demands, suits, or proceedings (“Claims”) made or brought against Customer during the Subscription Term by a third party alleging that the use of the Service as contemplated hereunder infringes the intellectual property rights of such third party; provided, that Customer (a) promptly gives written notice of the Claim to Strikedeck; (b) gives Strikedeck sole control of the defense and settlement of the Claim (provided that Strikedeck may not settle or defend any Claim unless it unconditionally releases Customer of all liability); and (c) provides to Strikedeck, at Strikedeck’s expense, all reasonable assistance. Strikedeck shall have no obligation under this Section for any infringement to the extent that it arises out of or is based upon (a) use of the Services or Software in combination with other products or services; (b) use of the Services or Software by Customer for purposes outside the scope of the rights granted to Customer; (c) Customer’s failure to use the Services or Software in accordance with this Agreement; or (d) any modification of the Services or Software by Customer not made or authorized in writing by Strikedeck. This Section sets forth Strikedeck’s entire obligation and Customer’s exclusive remedy with respect to any infringement, misappropriation or other violation of third party rights.
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, STRIKEDECK AND ITS THIRD PARTY PROVIDERS HEREBY DISCLAIM ALL EXPRESS, IMPLIED OR STATUTORY WARRANTIES WITH REGARD TO THE SERVICES AND SOFTWARE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND QUALITY. EXCEPT AS EXPRESSLY WARRANTED IN THIS AGREEMENT, STRIKEDECK AND ITS THIRD PARTY PROVIDERS MAKE NO OTHER REPRESENTATIONS OR WARRANTIES REGARDING THE RELIABILITY, AVAILABILITY, TIMELINESS, SUITABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES OR SOFTWARE OR THE RESULTS CUSTOMER MAY OBTAIN BY USING THE SERVICES OR SOFTWARE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, STRIKEDECK AND ITS THIRD PARTY PROVIDERS DO NOT REPRESENT OR WARRANT THAT: (A) THE OPERATION OR USE OF THE SERVICES OR SOFTWARE SHALL BE TIMELY, UNINTERRUPTED OR ERROR-FREE; OR (B) THE QUALITY OF THE SERVICES OR SOFTWARE SHALL MEET CUSTOMER’S REQUIREMENTS. CUSTOMER ACKNOWLEDGES THAT NEITHER STRIKEDECK NOR ITS THIRD PARTY PROVIDERS CONTROLS THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES AND SOFTWARE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. STRIKEDECK IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE TO THE EXTENT RESULTING FROM SUCH PROBLEMS. EXCEPT WHERE EXPRESSLY PROVIDED OTHERWISE BY STRIKEDECK, THE SERVICES AND SOFTWARE ARE PROVIDED TO CUSTOMER ON AN “AS IS” BASIS.
VIII. Limitation of Liability
EXCEPT FOR A PARTY’S BREACH OF CONFIDENTIALITY OR A PARTY’S INTELLECTUAL PROPERTY RIGHTS, OR CLAIMS OF BODILY INJURY OR DEATH, NEITHER PARTY OR ITS THIRD PARTY PROVIDERS SHALL BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE, INACCURACY OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICE OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE LESSER OF $500,000 OR THE FEES PAID BY CUSTOMER IN THE PRECEEDING TWELVE (12) MONTHS. THE PROVISIONS OF THIS SECTION REASONABLY ALLOCATE THE RISKS UNDER THE AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THE AGREEMENT. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the exclusions set forth above may not apply.
IX. Confidential Information
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information” of the Disclosing Party). Such information includes, without limitation, Customer Data, information related to Customer’s account login identifiers and credentials, and the nature and performance of Customer’s marketing programs. The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information; and (ii) not to use (except as expressly permitted in Section X below) or divulge to any third person any such Confidential Information. The Disclosing Party agrees that the foregoing shall not apply with respect to Confidential Information after five (5) years following the termination of the Agreement or any Confidential Information that the Receiving Party can document: (a) is or becomes generally available to the public through no breach of this Agreement; or (b) was in its possession or known by it prior to receipt from the Disclosing Party; or (c) was rightfully disclosed to it by a third party; or (d) was independently developed without use of any Confidential Information of the Disclosing Party; or (e) is required by law. Customer Data shall be destroyed as set forth in Section VI, and, upon Customer’s written request, Strikedeck shall certify to such destruction in writing.
X. Statistical Information
Strikedeck may send Customer written communication by mail to Customer’s address listed on the Order. If Customer has a dispute with Strikedeck, wishes to provide a notice under the Agreement, or becomes subject to insolvency or other similar legal proceedings, Customer shall promptly send written notice to Strikedeck, Inc. at 830 Stewart Dr., Suite 262, Sunnyvale, CA, 94085.
XII. Force Majeure
Neither party shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); or other event outside the reasonable control of the obligated party. Each party shall use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than twenty (20) days, either party may cancel unperformed Services upon written notice. This section does not excuse either party of its obligations to take reasonable steps to follow its normal disaster recovery procedures or Customer’s obligation to pay for the Services provided.
XIII. General Provisions
Any action, Claim, or dispute related to the Agreement shall be governed by California law, excluding its conflicts of law provisions, and controlling U.S. federal law. The Uniform Computer Information Transactions Act shall not apply to the Agreement. The failure of either party to enforce any right or provision in the Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing. Except for actions for nonpayment or breach of either party’s proprietary rights, no action, regardless of form, arising out of or relating to the Agreement may be brought by either party more than two (2) years after the cause of action has accrued.
The Agreement, including all Order(s), represent the parties’ entire understanding relating to the Services, and supersedes any prior or contemporaneous, conflicting or additional communications. Customer’s transmission to Strikedeck of an executed Order shall be sufficient to bind the parties to this Agreement. The Agreement may be amended only by written agreement of the parties. If any provision of the Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed 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 Strikedeck and Customer as a result of the Agreement or use of the Services. Neither party may assign the Agreement without the prior written approval of the other, such approval not to be unreasonably withheld or delayed, provided that such approval shall not be required in connection with a merger or acquisition of all or substantially all of the assets of the assigning company. Any purported assignment in violation of this Section shall be void.