These Terms of Service, as amended from time to time, together with any other terms, agreements and policies referenced herein (which constitute an integral part hereof) (these “Terms”) constitute a legally binding agreement between Tonkean, Inc., a company incorporated under the laws of the State of Delaware (the “Company”) and the customer executing or otherwise accepting the Order Form which refer to these Terms (respectively, the “Customer” and the “Order Form”). The Terms govern the manner in which the Customer and its users (each, a “User”) may install, integrate, use and access the Company’s Platform (as defined below) in a subscription model. The Order Form may be completed and entered-into in various ways, including online form, in-product screen or an offline form delivered by Customer to the Company, including via mail, email or any other electronic or physical delivery mechanism. Execution of the Order Form or use of the Platform by the Customer will conclusively indicate Customer’s acceptance of these Terms. If there is any conflict or inconsistency between these Terms and the Order Form, these Terms shall prevail unless the Order Form specifically states otherwise.
1. The Platform
- Subscription to the Platform. The Platform is a business operations platform as described in https://tonkean.com/ which is provided on a Software-as-a-Service subscription based model (the “Platform”). Customer may access and use the Platform, solely for Customer’s internal business operations (the “Purpose“), as further permitted by these terms.
- Subscription Limitations. The right to install, use and access the Platform as set forth in Section 1.1 above, is granted solely to the Customer and its Users, and is limited, non-transferable, non-exclusive, non-assignable and non-sub-licensable. The Platform may only be used by individuals who: (i) can form legally binding contracts under applicable law, and (ii) are authorized to use the Platform pursuant to Customer’s procedures and policies (if any).
- Modification or Discontinuation of the Platform. The Company may change or update the Platform at any time, including the availability of any feature, content or database, and the Company may impose limitations or restrictions on certain features and services or on the access to the Platform (or any part thereof), without notice or liability, unless the Company considers certain change to be material, in which case the Company will notify Customer by posting an announcement on the Company’s website, through the Platform or by email. Furthermore, the Company may offer alternative or additional features to certain Customers, that may not be offered to others.
2. Free Trial; Pre-Released Services.
- Trial Services. The Company may offer, from time to time, some or all of its services on free trial versions (“Trial Service”). The term of the Trial Service shall be as set forth in the Order Form, unless modified or terminated earlier by either party, for any reason or for no reason. The Company reserves the right to modify, cancel and/or limit this Trial Service at any time and without liability.
- Pre-released Services. The Company may offer, from time to time, certain services in an alpha or beta versions (the “Pre-Released Services”) and will use best endeavors to identify such Pre-Released Services as such. Pre-Released Services are services that are still under development, and as such they may be inoperable or incomplete, and may contain bugs, suffer disruptions and/or not operate as intended and designated, more than usual.
- Governing Terms of Trial Services and Pre-released Services. The Trial Services and Pre-Released Services are governed by these Terms, provided that notwithstanding anything in these Terms or elsewhere to the contrary, in respect of Trial Services and Pre-Released Services (i) Trial Services and Pre-Released Services are licensed hereunder on as “As-Is” “As Available” basis, with no warranties, express or implied, of any kind; (ii) The indemnity undertakings by us set forth in Section 16.1 herein shall not apply; and (iii) IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF COMPANY, ITS AFFILIATES OR ITS THIRD-PARTY SERVICE PROVIDERS, UNDER, OR OTHERWISE IN CONNECTION WITH, THESE TERMS EXCEED US $50. The Company makes no promises that any Trial Service and/or Pre-Released Services will be made available to the Customer and/or generally available.
3. Registration to the Platform
- Account Registration. In order to use the Platform, each User shall register and create an account (the “Account”). In the event that a User is the first user of the Platform on behalf of a Customer, such User will automatically be considered the Customer’s administrator (the “Administrator”), unless and until such time as such role is transferred to another User of the Customer. The Administrator is considered a representative of the Customer for any and all purposes. The Company reserves the right to refuse a User’s registration or to block User’s access to the Platform, at the Company’s discretion.
- Account Information. As part of the registration process, Users may be required to provide the Company with certain personal information (including, name, phone number, organizational or personal e-mail address, etc.) and to select a password. Customer is responsible that each User shall provide the Company with accurate, complete, and updated registration information. Customer shall notify the Company immediately of any breach of security or unauthorized use of an Account. Customer is solely responsible and liable for the activity that occurs in the Accounts and for the use of the Platform by its Users. Without derogating from the aforementioned, Customer is solely responsible for the content and any activity that occurs in each Account, including without limitation, any activity performed in the Account by Customer’s Users. Customer shall (i) not allow anyone other than Customer’s Users to access and use the Accounts; (ii) keep, and ensure that Users keep all Account login details and passwords secure at all times; (iii) ensure that the login details for each User may only be used by that User, and that multiple people may not share the same login details.
- Administrator Control. The Administrator shall have control over all Accounts and may have the ability to: (i) access information about Users’ activities; and (ii) monitor and manage Users’ Accounts. The Administrator may specify additional Users who will gain Administrator privileges.
- Administrator Responsibility. The Administrator is responsible for the internal management and administration of the Platform within the Customer’s Accounts. In addition, the Administrator is responsible for: (i) maintaining the confidentiality of the passwords of the Accounts; (ii) designating those individuals who are authorized to access the Accounts; and (iii) performing monitoring to ensure the protection of Users’ privacy and compliance with applicable law.
4. Customer’s Obligations
- Customer shall provide Company with all reasonable cooperation in relation to these Terms and each Order Form, and shall comply in a timely and efficient manner, and be responsible and liable for the Users’ compliance, with these Terms, the Order Form and all applicable laws and regulations. In the event of any delays by the Customer, Company may adjust any agreed timetable or delivery schedule as reasonably necessary.
- Customer is solely responsible for obtaining, maintaining and operating the User’s devices (including, without limitation, smartphones, tablets and computers), and any related equipment, hardware, software, backup systems, security systems and measures or ancillary services (the “Customer’s Infrastructure”) necessary in order to access and use the Platform. Customer shall be solely responsible and liable for any fees charged by third parties in connection with the Customer’s Infrastructure. Customer’s Infrastructure shall, at minimum, meet the specifications set forth in the Order Form. Customer shall be solely responsible for procuring and maintaining its network connections and telecommunications links, and for all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet. Company shall have no responsibility or obligation in connection with the above. Without limiting the generality of the aforementioned, Company is not responsible for any delays, delivery failures, or any other loss or damage resulting from the hosting, storage or transfer of software or data over communications networks and facilities, including the internet, and to the performance of any third-party communication, hosting or storage provider, and the Customer acknowledges that the Platform may be subject to interruptions, limitations, delays and other risks associated with the use of such hosting, storage and communications facilities.
- Customer is solely responsible for responding to any claims, requests and demands by the Users or any other third party related to the Customer. Company will, to the extent allowed by law, promptly notify Customer of its receipt of a User or such related third-party claim, request or demand and comply with Customer’s reasonable requests regarding the handling of such claim, request or demand. Customer is responsible for all acts or omissions of Users and their use of the Platform.
- Without derogating from Company’s rights under these Terms and under applicable law, Customer shall indemnify and hold harmless Company and its subsidiaries, affiliates, directors, officers, employees, agents, and personnel against any losses, liabilities, damages, and expenses to the extent arising out of or related to (i) Customer’s (or Customer’s Users’) use or misuse of the Platform; (ii) the use or misuse of contents of the Platform by a third party even if using Customer’s (or Customer’s Users’) password(s); (iii) claims of Users or any other third party related to the Customer, including without limitation, to the Customer’s Users; or (iv) a breach by any User or any other third party related to the Customer of these Terms.
5. License to Customer Data
- While using the Platform, certain data may be uploaded or transferred to the Platform to be processed by the Platform on the Customer’s behalf (the “Customer Data”). As between the Customer and the Company, all rights in the Customer Data shall remain with Customer. Users must follow the Customer’s policies, guidelines and procedures concerning any use or transfer of Customer Data via the Platform. Customer hereby grants the Company and its Sub-processors (as defined below) an irrevocable, perpetual, non-exclusive, worldwide, royalty-free, fully paid, sub-licensable right and license to access, use, process, copy, download, store, distribute and display the Customer Data, solely for the purpose of maintaining and providing the Platform and as required to resolve technical and security problems or otherwise as permitted by these Terms or in writing by Customer.
- Customer represents and warrants that (i) Customer owns or has all the necessary licenses, rights, consents, approvals, permissions, power and authority, necessary to grant the Company the aforementioned right and license and to authorize the Company and its Sub-processors to access, use, process, copy, download, store, distribute and display the Customer Data, without infringing or violating any copyrights, privacy rights, publicity rights, trademarks or any other contractual, intellectual property or proprietary of any third party; (ii) any Customer Data and any use thereof do not and shall not violate any applicable laws, including those related to data privacy or data transfer and export or any policies and terms governing such Customer Data; and (iii) no sensitive data that is protected under a special legislation and requires unique treatment (such as protected health information or credit, debit or other payment card data) will be transferred to the Platform.
- Other than Company’s security and data protection obligations expressly set forth in Section 7 herein, Company assume no responsibility or liability for Customer Data, and Customer will be solely responsible for Customer Data and the consequences of using, disclosing, storing, or transmitting it. It is hereby clarified that Company shall not monitor and/or moderate the Customer Data and there shall be no claim against Company of not acting so. Customer shall indemnify and hold harmless Company or anyone on its behalf from any liability, cost, damage and expense (including reasonable legal fees) caused in connection with the Customer Data.
6. Intellectual Property and Right to Use
- Company Intellectual Property. All right, title and interest in the Platform, including without limitation, any content, materials, software, know-how, data files, documentation, code, SDK, API, design, text, media, methodologies, artwork, names, logos, trademarks and services marks (excluding Customer Data), any and all related or underlying technology and any updates, new versions, modifications, improvements, developments or derivatives thereof, belongs to the Company and its licensors and these Terms do not convey to the Customer or the Users any interest in or to the Platform, except for a limited right of use as set forth herein, terminable in accordance with these Terms.
- Prohibited Use. Customer and its Users may not, and may not permit or aid others to: (i) use the Platform for any purpose other than the Purpose; (ii) copy, modify, alter, translate, emulate, create derivative works based on, or reproduce the Platform; (iii) give, publish, sell, distribute, assign, pledge or transfer (by any means), display, sublicense, rent, lease or otherwise share the rights granted under these Terms to any third party, including, but not limited to Customer’s affiliates, or use the Platform in any service bureau arrangement; (iv) reverse engineer, de-compile, decrypt, revise or disassemble the Platform or any part thereof, or extract source code from the object code of the Platform, or access or use the Platform in order to build a competing product or service or for benchmarking purposes; (v) bypass any measures the Company may use to prevent or restrict access to the Platform, and/or take any action intended to circumvent or disable the operation of any security feature or measure of the Platform; (vi) access the Platform or Company’s systems via any means other than through the interface provided by the Company, or via automated means, including by crawling, scraping, caching or otherwise; (vii) use the Platform in any manner that is illegal or not authorized by these Terms; (viii) take any action that imposes or may impose (as determined by the Company in its sole discretion) an unreasonable or disproportionately large load on Company’s (or Company’s service providers’) infrastructure; (ix) interfere or attempt to interfere with the integrity or proper working of the Platform; (x) remove, deface, obscure, or alter Company’s or any third party’s identification, attribution or copyright notices, trademarks, or other proprietary rights affixed to or provided as part of the Platform; (xi) provide any third party access to the Platform; (xii) provide public access to results obtained by the Platform; or (xiii) use the Platform to send unsolicited or unauthorized communications or for any harmful, irresponsible, or inappropriate purpose. Customer will be solely and fully liable for any acts, omissions, or violation of these Terms by its Users and to any losses, damages, liability and expenses incurred by Company or a third party due to any unauthorized use of the Platform by the Customer or by any of its Users or third party on behalf of the Customer.
- Feedback. Customer shall notify the Company of any and all design or functional errors, anomalies, and problems associated with the Platform discovered or brought to its attention by its Users, and may provide the Company suggestions, comments or any other feedback regarding the Platform (the “Feedback”). Any such Feedback shall become the Company’s sole property without any restrictions. The Company may use any Feedback at its sole discretion, free from any right of the Customer or any third party and without any obligation towards Customer. Customer hereby assigns to Company all right, title, and interest worldwide in the Feedback and any intellectual property rights related thereto, and explicitly and irrevocably waives any and all claims associated therewith. Customer shall not provide the Company with any Feedback which infringes any third-party right.
- Intellectual Property Infringements. The Company does not permit copyright infringing activities and infringement of intellectual property rights via the Platform. To file a copyright infringement notification, please send a written communication to firstname.lastname@example.org and the Company will follow with additional instructions. In the event that the Company believes that the Platform, or any part thereof, may infringe intellectual property rights of third parties, then the Company may, in its sole discretion: (i) obtain (at no additional cost to Customer) the right to continue to use the Platform; (ii) replace or modify the allegedly infringing part of the Platform so that it becomes non-infringing while giving substantially equivalent performance; or (iii) if the Company determines that the foregoing remedies are not reasonably available, then the Company may require that use of the (allegedly) infringing Platform (or part thereof) shall cease and in such an event Customer shall receive a prorated refund of any Fees (as defined below) paid for the unused portion of the Subscription Term. THIS SECTION 6.4 STATES COMPANY’S SOLE AND ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY, FOR ANY INTELLECTUAL PROPERTY INFRINGEMENT OR MISAPPROPRIATION BY THE COMPANY AND/OR ANY SUPPORTING SERVICES AND UNDERLYING TECHNOLOGY.
7. Privacy; Data Protection; Anonymous Information
- Anonymous Information. The Company may collect, monitor and freely use Anonymous Information (as defined below), inter alia to provide, develop, maintain, improve, demonstrate and market the Platform. “Anonymous Information” means information about the use of the Platform which does not enable identification of an individual, such as aggregated data, metadata and analytic information.
Company shall make reasonable efforts, during the Subscription Term to implement reasonable industry-standard, technical, and organizational security measures to protect Customer Data as set forth in https://tonkean.com/security/.
9. Third-Party Software and Services
- Sub-processors. Customer acknowledges that the Platform is hosted and made available by certain sub-processors of the Company (the “Sub-processors”). The Company may remove, add or replace its Sub-processors from time to time, at its sole discretion.
- Free Software. The Platform may include third-party “open source” or “Free Software” components that are subject to third-party terms and conditions (“Third-Party Terms”). If there is a conflict between any Third-Party Terms and the terms of these Terms, then the Third-Party Terms shall prevail, but solely in connection with the related third-party component. The Company represents and warrants that it is in compliance with the notice and attribution aspects of the Third-Party Terms. The license terms, copyright notices and available source code with respect to Third-Party Terms can be found at: https://tonkean.com/terms/thirdparty/.
- Other Products and Services. The Platform may contain links to other third-party services or may enable Customer and its Users to access, engage and procure certain services and products provided by third parties (the “Third-Party Services”). Customer acknowledges and agrees that regardless of the manner in which such Third-Party Services may be presented or offered to Customer, Company does not endorse any such Third-Party Services or shall be in any way responsible or liable with respect to any such Third-Party Services. BY ACCESSING AND/OR USING THE THIRD-PARTY SERVICES, CUSTOMER ACKNOWLEDGES THAT ITS ACCESS AND USE OF THE THIRD-PARTY SERVICES ARE AT ITS SOLE DISCRETION AND RISK, AND CUSTOMER IS SOLELY RESPONSIBLE FOR ENSURING SUCH THIRD-PARTY SERVICES ARE IN COMPLIANCE WITH CUSTOMER’S REQUIREMENTS AND ANY APPLICABLE LAW OR REGULATION. COMPANY BEARS NO RESPONSIBILITY AND/OR LIABILITY FOR ANY LINKS OR THIRD-PARTY SERVICES, INCLUDING WITHOUT LIMITATION, SUCH THIRD-PARTY SERVICES’ OPERABILITY OR INTEROPERABILITY WITH COMPANY’S SERVICE, SECURITY, ACCURACY, RELIABILITY, DATA PROTECTION AND PROCESSING PRACTICES AND THE QUALITY OF ITS OFFERINGS, AS WELL AS ANY ACTS OR OMISSIONS BY THIRD PARTIES.
10. Subscription; Payments
- Subscription Term and Fees. The Platform is provided on a subscription basis for the term specified in the Order Form (the “Subscription” and the “Subscription Term”). During the Subscription Term Customer shall pay the Company the applicable fees set forth in the Order Form (the “Fees”). Unless expressly indicated otherwise, Fees are stated in US dollars. Customer hereby authorizes the Company, either directly or through the Company’s payment processing services, to charge the Fees via Customer’s selected payment method, upon the due date. Unless expressly set forth herein, the Fees are non-cancelable and non-refundable. The Company reserves the right to change the Fees at any time, upon notice to Customer, provided that any increase shall only become effective upon the end of the then-applicable Subscription Term.
- Subscription Auto-Renewal. In order to ensure that Customer will not experience any interruption or loss of services, Customer’s Subscription shall automatically renew by default, unless canceled by either the Company or the Customer at least 30 days prior to its expiration, for a renewal period equal in time to the original Subscription Term (excluding any renewal period) at the then applicable Fees.
- Subscription Upgrade. Customer may upgrade its subscription plans by adding more use cases, features or any other upgrade available, during the applicable subscription period, either: (a) by providing Company with written notice specifying the requested upgrade; or (b) by affecting the upgrade through the Platform (collectively, an “Upgrade”). Any such Upgrade is deemed as a new purchase, and therefore the subscription period of the upgraded plan will restart upon the Upgrade in accordance with the terms of the upgraded plan or tier, and Customer will be billed by Company for the additional fees due in respect of such Upgrade. Certain Upgrades may require the Company’s prior written approval, at the Company’s discretion.
- Taxes. The Fees are exclusive of any and all taxes (including without limitation, value added tax, sales tax, use tax, excise, goods and services tax, etc.), levies, or duties, which may be imposed in respect of these Terms (the “Taxes”), except for income tax imposed on the Company. If Customer is located in a jurisdiction which requires Customer to deduct or withhold Taxes or other amounts from any amounts due to the Company, Customer shall promptly notify the Company in writing and the Company shall make reasonable efforts to avoid any such Tax withholding, provided, however, that in any case, Customer shall bear the sole responsibility and liability to pay such Tax and such Tax shall be “grossed up” and added on top of the Fees payable by Customer.
- Payment Terms. The Fees set forth in each Order Form are final. Customer shall pay each invoice according to the payment terms set forth in the Order Form. Unless otherwise set forth in the Order Form, the Fees shall be paid annually, in advance, within thirty (30) days of receipt of an invoice. All Fees are non-cancelable and non-refundable, unless required otherwise by mandatory law. Delinquent payments may bear compounded interest, as of the payment due date and until paid in full, at a rate equal to the lower of: (i) 1.5% per month, or (ii) the highest rate permitted by law. The aforesaid shall not derogate from any other right or remedy to which the Company may be entitled. Customer will be responsible for all reasonable expenses (including reasonable attorneys’ fees) incurred by the Company in collecting any payment. The Platform shall be made available to Customer for the applicable Subscription Term only following receipt by the Company or the amounts due by Customer.
- Credit Card. Credit card details may be needed to complete an order, and the Platform will be available to Customer following successful completion of billing. Customer will be notified accordingly. Customer authorizes the Company to continue to charge its credit card or any replacement card upon the beginning of each billing period for the agreed amount of such period, but failure to charge Customer’s card does not derogate from Customer’s payment obligation.
- Travel Expenses. In addition to the Fees, the Customer shall reimburse the Company within 14 days for all travel expenses incurred by the Company in connection with on-site integration and support by Company’s representatives, including flights, hotels and transportation expenses, against submission of invoices.
- Termination for Cause. A breach of obligations by either party hereto which is not cured within 10 days from receiving notice thereof, shall entitle the non-breaching party to immediately terminate these Terms by written notice. Notwithstanding, if a party files for petition or action for relief under any bankruptcy, reorganization, insolvency or moratorium law or any other law for the relief of, or relating to, debtors, now or hereafter in effect, or makes any assignment for the benefit of creditors or takes or becomes subject to any action in furtherance of any of the foregoing, the other party will be entitled to terminate these Terms immediately by written notice.
- Termination or Suspension by Company. Company may terminate or suspend Customer’s use of and access to the Platform (or any part thereof) immediately, without prior notice or liability, if Customer breaches, or fails to comply with, any of the provisions contained in these Terms, and in each of the following events: (i) the Company believes, in its sole discretion, that Customer or any third party is using the Platform in a manner that may impose a security risk, may cause harm to the Company or any third party, and/or may create any liability to the Company or any third party; (ii) if the Company believes, in its sole discretion, that Customer or any third party is using the Platform in breach of these Terms or applicable laws; or (iii) if the Company is unable to charge the Fees through Customer’s approved payment means or if any payment is or is likely to become overdue. The aforementioned rights are in addition to any rights and remedies that may be available to the Company in accordance with these Terms and/or under any applicable law.
- Termination by Customer. Customer may terminate its Subscription to the Platform by cancelling its Subscription, whereby termination will take effect at the end of the then-current Subscription Term and shall not derogate from Customer’s obligation to pay the applicable Fees for the Subscription Term.
- Effect of Termination. Unless expressly indicated otherwise in these Terms, the termination or expiration of these Terms shall not relieve Customer from its obligation to pay due Fees. Upon termination or expiration of these Terms, Customer’s Subscription and all rights granted to Customer and the Users hereunder shall terminate, and Customer shall cease to have access to the Platform and any Customer Data and shall remove any Platform components from Customer’s systems. Customer is solely responsible to export all available Customer Data prior to such termination or expiration, and following termination or expiration, the Company may delete the Customer Data without retaining any copy thereof. In addition, Customer shall return or destroy, at Company’s choice, Company’s Confidential Information (as defined below) then in Customer’s possession and Customer shall have no claim against the Company in this regard.
- Survival. All the provisions of these Terms which by their nature should survive termination (including, without limitation, confidentiality, ownership and intellectual property, warranty disclaimers and limitations of liability) shall remain in full force and effect following termination thereof, for any reason whatsoever. Termination of these Terms shall not relieve Customer from any obligation arising or accruing prior to such termination or limit any liability which Customer otherwise may have to the Company.
- Confidential Information. For purposes of these Terms, the term “Confidential Information” shall mean any and all non-public business, product, technology and marketing data and information, whether written, oral or in any other medium disclosed or otherwise provided by either party (the “Disclosing Party”) to the other party (the “Receiving Party”), that is either identified as such or should reasonably be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information shall not include any information which the Receiving Party can prove: (a) is publicly available at the time of disclosure or subsequently becomes publicly available through no act or omission of the Receiving Party in breach of these Terms; (b) is already known to the Receiving Party at the time of disclosure; (c) is disclosed to the Receiving Party free from confidentiality obligations by a third party who is not, to the knowledge of the Receiving Party, in breach of an obligation of confidentiality; or (d) was or is independently developed by the Receiving Party without use of or reliance upon the Confidential Information.
- Confidentiality Obligations. Receiving Party undertakes and warrants that: (i) it shall hold the Confidential Information of Disclosing Party in confidence and shall take all reasonable steps to safeguard and protect the Confidential Information including, without limitation, those steps that it takes to protect its own Confidential Information of a similar nature; (ii) it shall not disclose or otherwise provide any Confidential Information to any third party without the prior written consent of the Disclosing Party, except to those of its employees who have a need to know such Confidential Information for the purpose of fulfilling these Terms and provided that such employees are bound by written confidentiality obligations which are at least as restrictive as those contained herein; (iii) it shall not copy or use the Confidential Information for any purpose except to the extent required to perform its obligations, or exercise its rights, hereunder, whilst maintaining the Disclosing Party’s interests; and (iv) if the Receiving Party is requested or legally compelled to disclose any Confidential Information pursuant to the order or requirement of a court, administrative agency, or other governmental body, the Receiving Party shall make best efforts to provide the Disclosing Party prompt notice thereof, and, at the request and expense of the Disclosing Party, uses reasonable efforts to limit such disclosure to the extent requested. Receiving party’s obligations with respect to Confidential Information shall expire seven (7) years from the date of termination or expiration of the last Subscription Term, unless under applicable law a longer period of protection applies.
- Company reserves the right to access, read, preserve, and disclose any information that it obtains in connection with the Platform as the Company reasonably believes necessary to: (i) satisfy any applicable law, regulation, legal process, subpoena or governmental request, (ii) enforce these Terms, including to investigate potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to Customer’s support requests, and/or (v) protect the rights, property or safety of the Company, its users or the public.
13. Warranty and Disclaimer
- THE COMPANY DOES NOT WARRANT, UNDERTAKE OR GUARANTEE THAT ANY ACTION OR RECOMMENDATION BY THE PLATFORM WILL SATISFY CUSTOMER’S NEEDS OR WILL BE OPTIMAL UNDER THE CIRCUMSTANCES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER THROUGH OR FROM THE PLATFORM SHALL CREATE ANY WARRANTY OR IMPOSE ANY LIABILITY NOT EXPRESSLY STATED IN THESE TERMS. IN ADDITION, THE COMPANY DOES NOT ASSUME ANY LIABILITY WITH RESPECT TO PROCESSES AUTOMATED BY THE PLATFORM AND THE OUTCOME OF SUCH PROCESSES IN CASE OF FAILURE OF THE PLATFORM. CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT ACCESS TO AND USE OF THE PLATFORM, AS WELL AS ANY RELATED SERVICES PROVIDED BY THE COMPANY, ARE AT CUSTOMER’S SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND RESULTS IS SOLELY WITH CUSTOMER.
- EXCEPT AS EXPLICITLY SET FORTH HEREIN, THE PLATFORM AND ANY RELATED SERVICES ARE SUPPLIED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WITHOUT WARRANTIES, GUARANTEES OR REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, COMMON LAW OR OTHERWISE, REGARDING THE PLATFORM AND CUSTOMER’S USE THEREOF, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, AVAILABILITY, SECURITY, COMPATIBILITY OR NON-INFRINGEMENT. COMPANY DOES NOT WARRANT THAT THE USE OF THE PLATFORM WILL BE UNINTERRUPTED, ERROR-FREE OR WILL MEET CUSTOMER’S SPECIFIC REQUIREMENTS OR EXPECTATIONS, OR THAT ANY PROCESS, ACTION, INFORMATION OR ADVICE OBTAINED BY CUSTOMER AS A RESULT OF THE USE OF THE PLATFORM WILL BE ACCURATE, RELIABLE, EFFECTIVE, PROPER, LAWFUL OR OTHERWISE IN ACCORDANCE WITH THE CUSTOMER’S EXPECTATIONS.
- CUSTOMER IS RESPONSIBLE TO ASSURE THAT THE PLATFORM WILL NOT INTERFERE WITH THE OPERATION OF THE CUSTOMER’S PROCESSES, SUCH THAT THE CUSTOMER’S OPERATIONS SHALL PROPERLY FUNCTION EVEN IF THE PLATFORM, OR ANY PART THEREOF, IS DISABLED.
- WITHOUT DEROGATING FROM THE FOREGOING, COMPANY ASSUME NO LIABILITY OR RESPONSIBILITY FOR: (I) ANY ERRORS, MISTAKES, OR INACCURACIES OF THE PLATFORM, (II) ANY UNAUTHORIZED ACCESS TO OR USE OF CUSTOMER’S SERVERS OR DEVICES AND ANY INFORMATION STORED THEREIN, (III) ANY INTERRUPTION OR CESSATION OF TRANSMISSION, LOSS OR LEAK OF DATA OR OTHER COMMUNICATIONS (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, INCLUDING VIRUSES AND TROJAN HORSES WHICH MAY BE TRANSMITTED TO OR THROUGH THE PLATFORM THROUGH THE ACTIONS OF ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE PLATFORM.
14. Limitation of Liability
NOTWITHSTANDING ANYTHING IN THESE TERMS OR ELSEWHERE TO THE CONTRARY AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW:
- IN NO EVENT SHALL COMPANY, ITS SHAREHOLDERS, DIRECTORS, OFFICERS, AFFILIATES, AGENTS, MEMBERS OR EMPLOYEES BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY, FOR ANY: (I) SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR INDIRECT DAMAGES; (II) LOSS OF OR DAMAGE TO CUSTOMER’S SYSTEMS, DEVICES, DATA, INFORMATION, GOODWILL, PROFITS, SAVINGS, OR PURE ECONOMIC LOSS; (III) THE FAILURE OF INDUSTRY STANDARD SECURITY MEASURES AND PROTECTIONS; AND/OR (IV) THE COST OF PROCURING ANY SUBSTITUTE GOODS OR SERVICES; REGARDLESS OF (A) WHETHER COMPANY, ITS AFFILIATES OR THIRD-PARTY PROVIDERS, HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE REASONABLY FORESEEABLE; OR (B) THE THEORY OR BASIS OF LIABILITY (SUCH AS, BUT NOT LIMITED TO, BREACH OF CONTRACT OR TORT).
- CUSTOMER SPECIFICALLY AGREES THAT COMPANY IS NOT RESPONSIBLE OR LIABLE FOR ANY UNLAWFUL, IMPROPER OR OTHERWISE OBJECTIONABLE CONDUCT OF ANY PARTY ON OR THROUGH THE PLATFORM, OR FOR ANY INFRINGEMENT OR VIOLATION OF THE RIGHTS OF ANY PERSON OR ENTITY IN CONNECTION THEREWITH.
- TO THE MAXIMUM EXTENT PERMITTED BY LAW, COMPANY’S AGGREGATE AND CUMULATIVE LIABILITY FOR ALL DIRECT CLAIMS, DAMAGES AND LOSSES (WHETHER IN CONTRACT, TORT OR OTHERWISE), IS LIMITED TO THE FEES PAID TO THE COMPANY FOR USE OF THE PLATFORM IN THE SIX (6) MONTHS PRECEDING THE CAUSE OF THE CLAIM.
- By Company. Company hereby agrees to defend and indemnify Customer against any damages awarded against Customer by a court of competent jurisdiction, or paid in settlement, in connection with a third-party claim, suit or proceeding that the grant of right to use the Platform within the scope of this Agreement infringes any valid U.S. patent. Company shall have no obligations or liability hereunder in case (i) the Platform is used in an unlawful manner or in violation of this Agreement; (ii) features are provided at the request of the Customer; (iii) the Platform is used in combination with other products, equipment, software, or data not provided by the Company; (iv) the alleged infringement is resulting from processes developed by the Customer or at the Customer’s request within the Platform; or (v) the alleged infringement is based on the Customer Data and any other content provided by Customer or its Users or use of the Platform by the Customer. SECTIONS 6.4 AND 16.1 STATE THE COMPANY’S SOLE AND ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY, FOR ANY INTELLECTUAL PROPERTY INFRINGEMENT OR MISAPPROPRIATION BY THE COMPANY AND/OR THE PLATFORM AND UNDERLYING TECHNOLOGY.
- By Customer. Without derogating from Company’s rights under this Agreement and under applicable law, Customer hereby agrees to defend and indemnify Company against any damages awarded against Company by a court of competent jurisdiction, or paid in settlement, in connection with (i) a third party claim, suit or proceeding that use of the Customer Data and any other content provided by Customer and/or the Users, or the use of the Platform by the Customer and/or the Users infringes any intellectual property rights of a third party; or (ii) a claim by a User.
- General. The defense and indemnification obligations of the indemnifying Party under this Section 16 are subject to: (i) the indemnifying Party being given prompt written notice of the claim; (ii) the indemnifying Party being given immediate and complete control over the defense and/or settlement of the claim; and (iii) the indemnified Party providing cooperation and assistance, at the indemnifying Party’s expense, in the defense and/or settlement of such claim and not taking any action that prejudices the indemnifying Party’s defense of, or response to, such claim.
- Compliance. The Customer is solely responsible for the Customer and the User’s compliance with applicable laws.
- Amendments. The Company reserves the right to change these Terms at any time by posting a new version at: https://tonkean.com/terms/. In the event of a material change, Company shall notify the Customer by posting a notice in the Platform or in the Company’s website, or by sending the Customer an email. Any such modifications shall become effective immediately upon posting.
- Export Control. The Platform may be subject to Israeli, U.S. or foreign export controls, laws and regulations (the “Export Controls”), and Customer agrees and confirms that: (i) Customer is not located or uses, exports, re-exports or imports the Platform (or any portion thereof) in or to, any person, entity, organization, jurisdiction or otherwise, in violation of the Export Controls; (ii) Customer is solely responsible for complying with applicable Export Controls which may impose additional restrictions, prohibitions or requirements on the use of the Platform.
- Customer’s Reference. Customer acknowledges and agrees that the Company has the right to use Customer’s name and logo to identify Customer as a customer of Company or user of the Platform, on Company’s website, marketing materials or otherwise by public announcements. Customer may revoke such right, at any time, by contacting Company at: email@example.com. The publication of any additional content related to the Customer’s use of the Platform (other than mere reference to the Customer as set forth above) shall require the Customer’s prior approval (which may not be unreasonably withheld or delayed). Customer agrees that the Company will publish a case study on the Customer’s use of the Platform, subject to the Customer’s approval of the content of the case study (which may not be unreasonably withheld or delayed).
- Force Majeure. Neither Company nor Customer will be liable by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of a party, which may include denial-of-service attacks, interruption or failure of the Internet or any utility service, failures in third-party hosting services, strikes, shortages, riots, fires, acts of God, war, pandemic, terrorism, and governmental action.
- Governing Law; Jurisdiction. These Terms and its performance shall be governed by the laws of the State of California, without regard to conflict of laws’ provisions that would result in the application of the laws of any other jurisdiction. The parties hereto submit the exclusive jurisdiction to the competent courts in San Francisco County, California.
- Class Action Waiver. WHERE PERMITTED UNDER APPLICABLE LAWS, CUSTOMER AND COMPANY AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER PARTY ONLY IN ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION. Unless both Customer and the Company agree, no arbitrator or judge may consolidate more than one person’s claims or otherwise preside over any form of a representative or class proceeding.
- General. The headings used in these Terms are for convenience only and shall in no case be considered in construing this Agreement. The schedules and exhibits attached hereto are incorporated herein by this reference.
- Entire Agreement. These Terms (and the other terms, agreements and policies referenced herein) constitute the entire agreement between Customer and the Company with respect to Customer’s use of the Platform, and supersede all prior or contemporaneous understandings regarding such subject matter.
- Assignment. Company may assign at any time any of its rights and/or obligations hereunder to any third party without Customer’s consent. Customer may not assign any of its rights or delegate any obligations hereunder, in whole or in part without the prior written consent of Company, and any attempt by a Customer to do so shall be deemed null and void.
- Relationship of the Parties; No Third-Party Beneficiaries. The parties are independent contractors. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. There are no third-party beneficiaries to these Terms.
- Notice. All notices or reports permitted or required under this Agreement shall be made by personal delivery, by express courier service (such as FedEx or UPS) that requires proof of delivery, certified or by registered mail, return receipt requested, or by electronic mail, and shall be deemed effective (a) if mailed, 5 business days after mailing; (b) if made by personal delivery or sent by messenger or express courier service, upon delivery; and (c) if sent via electronic mail, upon transmission and electronic confirmation of receipt or (if transmitted and received on a non-business day) on the first business day following transmission and electronic confirmation of receipt.
- Severability. In the event that a court of competent jurisdiction finds any provision of these Terms to be illegal, invalid or unenforceable, the remaining provisions will remain in full force and effect, and such provision shall be reformed only to the extent necessary to make it valid, enforceable and legal.
- No Waiver. The failure of the Company to enforce any right or provision in these Terms will not constitute a waiver of such right or provision unless acknowledged and agreed by Company in writing.
For any questions or queries about these Terms or the Platform in general, please do not hesitate to contact us at the following e-mail address: firstname.lastname@example.org.
Last Updated: September 2022