Privacy and Terms of Service
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Terms Of Service
If you are using a Podium Service on behalf of a company, organization, or other entity, then “Client” or “you” means that entity, and you are binding that entity to this Agreement. You represent and warrant that you have the legal power and authority to enter into this Agreement and that, if the Client is an entity, this Agreement is entered into by an employee, agent, or other authorized representative with all necessary authority to bind that entity to this Agreement.
This Agreement includes and hereby incorporates by reference any Subscription Documentation executed between you and Podium, as well as any policies or exhibits linked to or referenced herein. If you have entered into a separate written agreement with Podium concerning specific Services, the terms of such agreement control if there is any conflict between the terms of such agreement and these Terms. Please note that we may modify this Agreement as described in Section 16.10 below.
Other terms are defined in other Sections of this Agreement.
2.4.2. Podium Voice. If Client uses the Podium Voice, Client agrees to be bound by the Podium Voice Service Terms.
2.4.5. Podium Developer Platform. If Client uses the Podium Developer Platform, Client agrees to be bound by the Podium Developer Terms.
Podium may, from time to time, contract with a third party to facilitate certain features of the Services, including as described in Section 16.6 of this Agreement. Podium may also allow or facilitate Client to make arrangements with other third-party providers that provide products or services in connection with, but which are not included in, the Services as described in this Agreement (“Third-Party Provider(s)”). If Client elects to use any Third-Party Provider(s) or any applications, integrations, add-ons, software, code, online services, systems, and other products that are not Podium Technology (“Third-Party Products”) in connection with the Services, such Third-Party Provider(s) or Third-Party Products may make Third-Party Content available to Client and may access Client’s instance of the Services, including Client Data. Client agrees and acknowledges that use of such Third-Party Provider(s) or Third-Party Products may require Client to enter into separate terms and conditions with such third-party. Unless Podium expressly agrees otherwise in a signed writing, Podium (a) is not a party to any such terms; (b) will not be liable thereunder; (c) does not warrant or support Third-Party Providers, Third-Party Products; or Third-Party Content; and (d) disclaims all responsibility and liability for these providers and items and their access to the Services, including their modification, deletion, disclosure, or collection of Client Data. Podium is not responsible in any way for Client Data once it is transmitted, copied, or removed from the Services.
TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT WILL PODIUM OR ITS SUPPLIERS BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, INTERRUPTION OF BUSINESS, LOST PROFITS, COSTS OF DELAY, REPUTATIONAL HARM, OR ANY INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, HOWEVER CAUSED, EVEN IF INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL PODIUM’S OR ITS SUPPLIERS’ TOTAL LIABILITY EXCEED IN AGGREGATE THE AMOUNT ACTUALLY PAID BY CLIENT TO PODIUM FOR THE APPLICABLE SERVICE(S) OR RELATED SERVICE(S) IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM. FOR FREE ACCESS SUBSCRIPTIONS OR BETA RELEASES, PODIUM’S TOTAL LIABILITY WILL NOT EXCEED IN AGGREGATE FIFTY U.S. DOLLARS ($50.00 US). NOTWITHSTANDING THE FOREGOING, NONE OF THE LIMITATIONS IN THIS SECTION 14 EXCLUDES EITHER PARTY’S LIABILITY FOR FRAUD OR FOR DEATH OR PERSONAL INJURY TO THE EXTENT CAUSED BY A PARTY’S NEGLIGENCE. IN ADDITION, THE LAWS IN SOME JURISDICTIONS MAY NOT ALLOW SOME OF THE LIMITATIONS OF LIABILITY IN THIS SECTION. IF ANY OF THESE LAWS IS FOUND TO APPLY TO THIS AGREEMENT, THIS SECTION 14 WILL APPLY TO THE MAXIMUM EXTENT NOT PROHIBITED BY SUCH LAW. EACH PARTY ACKNOWLEDGES AND AGREES THAT THIS SECTION 14 IS A FUNDAMENTAL BASIS OF THE BARGAIN AND A REASONABLE ALLOCATION OF RISK BETWEEN THE PARTIES AND WILL SURVIVE AND APPLY TO ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, ANY PODIUM TECHNOLOGY, OR ANY RELATED SERVICES, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE), EVEN IF ANY LIMITED REMEDY IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 14 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
If a dispute arises between the parties related to this Agreement or the Services provided therefrom, and the dispute cannot be settled through informal negotiations, the parties agree to resolve their dispute (referred to herein as “Claim(s)”) as follows:
You can also visit our Privacy Center to learn more about privacy at Stripe.
This Licensing and Services Agreement (“Agreement”) is entered into on , (“Commencement Date”) by and between AGS Acquisition Corp., an Illinois corporation (“AGS”), and , a(n) corporation (“Client”).
- Whereas, AGS developed an internet model branded as “FittleBug” that facilitates the relationship and scheduling between consumers and service providers (the “Model”)
- Whereas, AGS offers to customers limited licenses to use the Model. In all instances the Model must reside on AGS designated servers.
- Whereas, AGS customers electing to license the Model will maintain and utilize their own internet domain name and web presence which will link to their respective Models.
- Whereas, Client seeks to operate an independent service business utilizing the Model
- Whereas, AGS agrees to grant Client a limited license to utilize the Model and agrees to provide certain implementation, training, and web hosting services to Client, and Client seeks to retain said license and services from AGS, in accordance with the terms and conditions set forth in this Agreement.
Therefore, in consideration of the covenants and conditions set forth herein, and for other consideration, the receipt and sufficiency of which is hereby acknowledged, AGS and Client agree as follows:
- Recital. The above recitals are incorporated by reference and made a part of this Agreement.
- Model Ownership. AGS, or third party-licensors, own and retain all rights, title and interest (including all copyrights, trademarks, patents, trade secret rights, and other intellectual property rights) in and to all aspects of the Model. Client’s access to and/or use of all or any aspect of the Model does not transfer to Client any title to the intellectual property in the Model, and Client will not acquire any rights to use any aspect of Model except as expressly set forth in this Agreement. Client shall retain in the same form as provided by AGS, all copyright, trademark and other proprietary notices contained in any aspect of the Model. Client may not sell, modify, reproduce, display, publicly perform, prepare derivative works based upon, distribute, or otherwise use any aspect of the Model except as expressly provided in this Agreement.
- Limited License Granted Client.
Subject to: (i) Client’s payment of the fees described below; and (ii) the other terms and conditions of this Agreement, AGS hereby grants Client, and Client accepts, a limited, non-transferable, non-exclusive, terminable, license to use the Model in connection with the operation of its independent service business, subject to the terms and conditions of this Agreement (“Limited License”). The Limited License includes any updates, enhancements, modifications, revisions, additions, replacements or conversions of the Model. The Limited License allows Client to utilize the Model in connection with the operation of Client’s individual service business (“Client Business Model”), subject to the terms and conditions of this Agreement. Client represents and warrants each shareholder, officer, director, employee, agent, representative and other person utilizing the Model pursuant to the Limited License (“Authorized User”) shall abide by the terms and conditions of this Agreement and shall be subject to all limitations and obligations of Client under this Agreement. Client is liable for any breach of this Agreement by an Authorized User.
- Prohibited Uses. Without expanding the scope of the Limited License, Client may not without AGS’s prior written consent:
- Use the Model except as expressly permitted herein;
- Lease, loan, sub-license, or resell the Model;
- Transfer or assign any of the rights granted to Client under this Agreement;
- Duplicate, reverse engineer, decompile, or disassemble any aspect of Model;
- Modify or create derivative works based in whole or in part on any aspect of Model;
- Remove any proprietary notices appearing on any aspect of the Model;
- Interfere with or disrupt networks connected to any aspect of the Model;
- Attempt to gain unauthorized access to any aspect of the Model, or the computer systems and networks connected to the same;
- Interfere with any other persons’ use and enjoyment of any aspect of the Model;
- Utilize the Model in any way that is unlawful, harmful, threatening, harassing, tortious, defamatory, obscene, libelous, invasive of another’s privacy, or otherwise objectionable;
- Upload any information regarding another person without being authorized by that person;
- Upload content, data, or information that contains a virus, corrupted file, or other harmful component;
- Impersonate any person or entity, including but not limited to AGS personnel, or falsely state or otherwise misrepresent any affiliation with any person or entity, or upload any content, data, or information under a fictitious name; or
- Intentionally or unintentionally violate, encourage or assist another to violate any ordinance, statute, regulation, rule, or law in connection with Client’s use of the Model.
- User ID and Password. AGS will provide Client with a unique user identification and password allowing Client to access the Client Business Model (“User ID and Password”) administrative functionality. Client is responsible for ensuring the confidentiality of the User ID and Password, and for all activities that occur under the User ID and Password. In the event Client forgets the User ID and Password, Client may contact AGS at 630-444-2000 and/or [email protected], or such other phone number and/or email address hereafter provided to Client by AGS.
- Client access to the Client Business Model. Client understands and acknowledges the Client Business Model is available only through the worldwide web through AGS. Client is solely responsible for acquiring and maintaining the hardware, software, internet access, and any other equipment, and services of any kind necessary to access and utilize the Client Business Model, and for all associated fees, costs, and expenses. If the Model is lost or damaged, AGS will provide a replacement copy at no additional charge.
- Changes in the Model. AGS may in its sole and absolute discretion change, modify, alter, enhance, or discontinue any aspect of the Client Business Model at any time without notice. Client’s sole remedy in the event Client is dissatisfied with any such change, modification, alteration, enhancement, or discontinuance of any aspect of the Client Business Model is to terminate this Agreement in accordance with Section 10.c. below. Under no circumstances shall Client be entitled to a refund of any fees or other amounts paid AGS in accordance with this Agreement.
- AGS Services. In addition to the Limited License granted hereunder, AGS shall provide Client certain implementation, training, and hosting services defined in this Section 8.
- Hosting Services.
- Hosting Services Defined. AGS agrees to: (a) host the Client Business Model and related web pages on its server (“AGS Server”); and (b) back up the Client Business Model nightly while this Agreement remains in effect (collectively “Hosting Services”). Client acknowledges the AGS Server is provided to Client on a non-exclusive basis.
- Access Not Guaranteed. While the AGS Server will generally be available and operational twenty-four (24) hours a day, seven (7) days a week, Client acknowledges AGS makes no representations or guarantees regarding the operation and availability of the Hosting Services. Without limiting the foregoing, the Hosting Services may not be operational or available, and may fail or be interrupted do to scheduled maintenance, repairs, upgrades, security breaches, interruption of telecommunication or digital transmission links, Internet failures, and other causes not anticipated by AGS and/or beyond AGS’s control.
iii. Warranty Disclaimer. Client understands and agrees the Hosting Services are provided on an “as-is,” “as-available” basis without any warranties to the maximum extent possible pursuant to applicable law. AGS disclaims all warranties, express, implied, or statutory, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose. Without limiting the foregoing provisions, AGS makes no warranty that the Hosting Services will be error-free or free from interruptions or other failures or that the Hosting Services will meet client’s requirements.
- Upgrades. AGS reserves the right, but shall have no obligation, to upgrade or substitute the AGS Server and take other actions with regard to the AGS Server it reasonably believes are necessary or in the best interest of AGS’s business.
- Limited Services. AGS is responsible only for providing the Hosting Services defined in Section 8.a.i. above. AGS shall not provide any equipment, supplies, materials, or services not specifically identified as Hosting Services in Section 8.b.i. Whether specific equipment, supplies, materials, or services are included within the definition of Hosting Services shall be determined by the AGS in its sole and absolute discretion.
- Implementation & Training Services. Upon receipt of a signed Agreement and the initial License and Hosting Fee payment, AGS will forward to Client the necessary documents to assist in the gathering and submitting of the appropriate Client data for input into the Client Business Model. Upon the receipt of all necessary data, AGS will prepare the Client Business Model to be available for productive use within two business days. AGS will provide initial training on administration of the Client Business Model not to exceed a total of three hours. AGS will provide reasonable additional training assistance via phone, email or webinar through the first year of this Agreement.
- Additional Services. Upon Client’s request and AGS’s acceptance, AGS may provide other services separate from and in addition to the Implementation, Training, and Hosting Services described above (“Additional Services”). AGS may from time to time make available to Client generic marketing materials to assist in the marketing of their model.
- Fees and Taxes.
- Introductory Monthly License and Hosting Fee. AGS offer two types of contracts – Plan “A” and Plan “B”.
Under Plan “A” – Client shall pay AGS a non-refundable $200 per month for unlimited number of transactions, plus a one (1) time non-refundable set up fee of $200. Payment will be made automatically from Clients provided credit card at the time of License on the same day each month until canceled. Once monthly payment is paid, AGS provides no refunds for the month of service. Client will be responsible for the set up and cost of the necessary PayPal PRO or Advanced, Stripe or any other account to work with the Plan “A” model of FittleBug. The License and Hosting Fee for the second and subsequent years shall be subject to AGS’s then current pricing. Client shall make all payments to AGS’s chosen electronic payment account or by such other method as AGS communicates to Client in writing.
Under Plan “B” Client shall pay AGS a non-refundable $50 per month, a one (1) time non-refundable set up fee of $200, and 15% of each total revenue including any relevant taxes for each transaction processed through FittleBug. Client will NOT be responsible for the set up and cost of the necessary PayPal PRO account to work with the Plan “B” model of FittleBug. The License and Hosting Fee for the second and subsequent months shall be subject to AGS’s then current pricing. The Client may switch between Plan A and B for a one time $100 transfer fee per occurrence.
- Fees for Additional Services. In the event Client requests and AGS agrees to provide, any Additional Services, Client shall pay AGS an additional fee based on the time spent by AGS in furtherance of the Additional Services at AGS’s hourly rate of One Hundred Ten and No/100 Dollars ($110.00) per hour. AGS will submit a monthly invoice to Client for hourly fees and expenses currently due in connection with the Additional Services, and Client shall pay the balance due within ten (10) days of the date of said invoice.
- Failure to Pay Fees. In the event Client fails to make timely payment of any amounts due AGS under this Agreement, Client shall reimburse AGS for all expenses including, but not limited to, legal fees incurred in connection with any action (regardless of whether a formal complaint is filed) pursued by AGS to recover amounts due from Client.
- Taxes. Client shall pay or reimburse AGS for all sales, use, transfer, privilege, excise, and all other taxes and all duties, whether international, national, state or local, however designated, which are levied or imposed by reason of the performance by AGS under this Agreement; excluding, however, income taxes on profits which may be levied against AGS.
- Added Functionality. During the Term of this Agreement, in the event AGS develops or otherwise acquires additional functionality and/or options which enhance the Model (“Model Addition”), AGS shall, in each instance, notify Client of the Model Addition and the cost associated with licensing and adding the Model Addition to the Client Business Model (“Addition Cost”). If Client chooses to license and incorporate any Model Addition to the Client Business Model, the Prorated cost of the remaining Hosting and License Fee will be increased by the Additional Cost following implementation of the Model Addition and through the end of the Agreement Term.
- Term and Termination.
a. Term. The term of this Agreement shall commence on the Commencement Dated stated above and shall continue for one (1) year(“Term”) unless terminated prior thereto, or extended, in accordance with this Section 10. b. Early Termination by AGS. AGS may terminate this Agreement at any time and for any reason or no reason by providing written notice of termination to Client and refunding a pro rata portion of the License and Hosting Fee for any period paid by Client but not yet completed as of the date of termination. AGS shall have no other obligation to Client if AGS terminates this Agreement under this provision prior to the end of Term. AGS may also terminate this Agreement without any liability at anytime by giving written notice to Client in the event Client breaches any of the representations, warranties, or provisions contained in this Agreement.
c. Early Termination by Client. Client may terminate this Agreement on thirty (30) days written notice to AGS in the event of a breach of any provision of this Agreement by AGS, provided that, during the thirty (30) day notice period, AGS fails to cure such breach.
- Extension of Term. Unless either party notifies the other of it’s intent to terminate the Agreement in writing at least thirty (30) days prior to the expiration of the current Term, the Agreement will automatically be extended for an additional one (1) year period and Client shall pay to AGS the then current annual License and Hosting Fee.
- Effect of Termination. Upon expiration or termination of this Agreement, Client’s License and access to the Client Business Model shall end. Except for information AGS may retain for its own internal uses Client acknowledges that all other information and data related to Client, and Client’s customers, contractors, vendors, and prospects, if any, cannot be saved outside of the Client Business Model or transferred from the Client Business Model and is usually destroyed upon termination of this Agreement. AGS is not liable for any losses or
damages suffered by Client as a result of the destruction or loss of such information or data. Expiration or termination of this Agreement shall not relieve Client of Client’s obligation to pay fees due under this Agreement. Nothing herein shall be construed as obligating AGS to destroy or return any information it may possess regarding Client, and Client’s customers, contractors, vendors, and prospects.
- Client Responsibility. Other than the Hosting Services specified in paragraph 8.b.i., Client assumes sole responsibility for everything necessary or required for the proper and secure functioning of the Client Business Model. Without limiting the foregoing, Client assumes sole responsibility for: (a) the administration, marketing, and operations of Client’s service business; (b) the accuracy of the contents contained on, and the proper use of, the Client Business Model; (c) ensuring the contents of the Client Business Model do not infringe on or violate any applicable statute, ordinance, law, regulation or the rights of any third party; and (d) providing all data transmitted to, gathered by, or related to the Client Business Model. Client shall not place or cause to be placed on the AGS Server content which violates any applicable law or regulation or any proprietary, contract, privacy or other third party right, or which may expose AGS to civil or criminal liability. AGS reserves the right to exclude or remove any content from the AGS Server and the Client Business Model if AGS determines, in its sole and absolute discretion, said content may violate any law, violate or infringe any third party right, potentially expose AGS to civil or criminal liability, or is otherwise deemed inappropriate.
- Limitation of liability. Client understands and agrees that under no circumstances, shall AGS, or any of its directors, officers, employees, suppliers, agents, and other representatives be liable for any direct or indirect losses or damages arising out of or in connection with this Agreement; the Hosting Services; the Set Up Services; the Training Services; the Client Business Model; third parties accessing or using the Client Business Model; the actions or inactions of Client or AGS; the interruption or failure of the AGS Server; or any security breach. This is a comprehensive release of liability that applies to all losses and damages of any kind, including, without limitation, direct, indirect, general, special, incidental, consequential, exemplary, statutory, contractual, or damages or losses of any other kind or type. This limitation of liability applies whether the alleged liability is based on contract, negligence, tort, strict liability, or any other basis and even if AGS knew or should have known of the possibility of such damages. The foregoing provisions shall be enforceable to the maximum extent permitted by law.
- Waiver of claims. Client hereby waives any and all claims, demands, actions, or causes of action of any kind Client may have directly or indirectly against AGS or its affiliates, or any of their respective managers, directors, officers, members, shareholders, employees, contractors, agents or other representatives resulting from, arising out of, or in anyway connected with or related to this Agreement, the Hosting Services; the Set Up Services; the Training Services; the Client Business Model; third parties accessing or using the Client Business Model; the actions or inactions of Client or AGS; the interruption or failure of the AGS Server; or any security breach.
- Indemnification and Insurance. Client agrees to defend, indemnify, and hold harmless AGS and its directors, officers, employees, suppliers, agents, and other representatives against any and all claims, demands, actions, causes of action, losses, damages and expenses (including reasonable attorneys’ fees and costs incurred in defending such claims), directly or indirectly resulting from, arising out of, or in any way related to this Agreement; the Hosting Services; the Set Up Services; the Training Services; the Client Business Model; third parties accessing or using the Client Business Model; the actions or inactions of Client or AGS; the interruption or failure of the AGS Server; or any security breach. Client shall carry and maintain insurance sufficient to cover its obligations under this indemnification provision and elsewhere in this Agreement, and shall provide evidence of said insurance upon AGS’s request.
- Relationship of the parties. AGS and Client are, and will act as, independent contractors. Nothing in this Agreement is intended to or shall be construed to constitute an agency, joint venture, partnership, or fiduciary relationship between the parties; and neither party shall have the right or authority or shall hold itself out as having the right or authority to bind the other party.
- Ownership. All trademarks, service marks, trade names, logos or other words or symbols identifying the Model or AGS’s business (the “Marks”) are and will remain the exclusive property of AGS or its licensors, whether or not specifically recognized or perfected under local law. Client will not take any action that jeopardizes AGS’s or its licensors’ proprietary rights or acquires any right in the Marks, except the limited use rights specified in Section 16(b). Client will not register, directly or indirectly, any trademark, service mark, trade name, copyright, company name or other proprietary or commercial right that is identical or confusingly similar to the Marks. Upon AGS’s request, Client will execute the instruments that may be appropriate to register, maintain or renew the registration of the Marks in AGS’s or its licensors’ name.
- Use. Client will use the Marks exclusively to advertise and promote the Model. All advertisements and promotional materials will (i) clearly identify AGS or its licensors as the owner of the Marks, and (ii) conform to AGS’s then-current trademark and logo guidelines. Before publishing or disseminating any advertisement or promotional materials bearing a Mark, Client will deliver a sample of the advertisement or promotional materials to AGS for prior approval. If AGS notifies Client that the use of the Mark is inappropriate, Client will not publish or otherwise disseminate the advertisement or promotional materials until they have been modified to AGS’s satisfaction.
- Client Information and Data. During the course of this Agreement, AGS shall have access to and possess information and data regarding Client, Authorized Users, and third parties (“Authorized User Information and Data”). To the extent Client possesses a proprietary interest in Authorized User Information and Data, Client hereby grants AGS a non-exclusive, perpetual, worldwide, royalty free, license to utilize in any manner and for any purpose any and all Authorized User Information and Data.
- Legal Compliance. Client shall at all times comply with all applicable local, state, and federal statutes, ordinances, regulations, rules, and other laws of any kind.
- Client compliance with the CAN-SPAM Act (15 USC 7701-7713). Without limiting Client’s obligations under paragraph 18, all e-mail sent or initiated by Client in any way related to the Client Business Model and/or this Agreement shall comply with the requirements of 15 USC 7701-7713 (“CAN-SPAM Act”). Without limiting the foregoing, Client shall not send any e-mails after being notified by AGS or the email recipient that the recipient requested not to receive any future e-mail from AGS or Client.
- Drafting and construction. No inference or presumption shall arise against or in favor of either Party because it did or did not draft this Agreement or any provision hereof.
- Survival. The parties agree that paragraphs 2, 9.d, 10-14, 16, 17, and 21-27 shall survive the termination of this Agreement.
- Waiver. If one party agrees to waive its right to enforce any term of this Agreement, it does not waive its right to enforce such term, or any or all other terms, of this Agreement at any other time.
- Governing Law and Choice of Forum. This Agreement was entered into in the State of Illinois, and shall be governed by and construed in accordance with Illinois law. Any claim or dispute
related to or arising out of this Agreement shall reside in the courts of the State of Illinois, and in particular in either the Kane County Circuit Court or the U.S. District Court for the Northern District of Illinois.
- Severability. If any provision of this Agreement is invalidated or held unenforceable, the invalidity or unenforceability of that provision shall not affect the validity or enforceability of any other provision of this Agreement. In addition, the parties agree that as to any provision found to be invalid or unenforceable, the same shall not be void, but shall be reformed and enforced to the
maximum extent permissible under applicable law, as if originally executed in that form by the parties.
- Amendments. No amendment, change, waiver, or discharge hereof shall be valid unless in writing and signed by AGS and Client.
- Entire Agreement. This Agreement constitutes the entire agreement between Client and AGS and there are no representations, understandings or agreements which are not fully expressed in this Agreement. All prior agreements, verbal or written, are of no effect once this Agreement is executed.
- Acknowledgement. The undersigned hereby represent and acknowledge they have read the foregoing Agreement, they know its contents, and they are executing this Agreement as a free and voluntary act and on behalf of the named parties. The undersigned further represent they are duly authorized to execute this document on behalf of the named parties.
These terms of service (“Terms of Service”) apply to the online business applications provided by ServiceMonster LLC (collectively referred to as the “Service”). Service features and capabilities may vary depending on the version or level of the Service provided with these Terms of Service. As used in the Terms of Service, the terms “you”, “your” or “user” all refer to the person using the Service in any way.
1. Permitted Uses and Restrictions on Use
Subject to these terms and conditions of the Terms of Service, ServiceMonster LLC (“ServiceMonster”) or its subcontractors will provide the Service that allows you to manage your company and business-related data on the World Wide Web. By logging into and using the Service, you indicate that you accept these Terms of Service. In order to use the Service, you must obtain access to the World Wide Web at your own expense. In addition, you must provide all equipment necessary to make such connection to the World Wide Web, including a computer and modem or other access device.
2. Your Registration Obligations
A. In consideration of your use of the Service, you agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the Service’s registration form(s) (“Registration Data”) and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that we have reasonable grounds to suspect is untrue, inaccurate, not current or incomplete, ServiceMonster may suspend or terminate your account and refuse current or future use of the Service (or any portion thereof).
B. Acceptable Use Policy. By submitting data, files, software, text or other content (“Content”) to ServiceMonster in connection with this Service, you warrant that: (i) you are the owner of such Content, or have been granted all the rights necessary from the owner of Content to submit such Content to ServiceMonster, and (ii) the use of Content by ServiceMonster and its members will not infringe or misappropriate the intellectual property rights of or otherwise violate the rights of any third party.
3. Access, Passwords and Security
You may designate as many users as your level of subscription to the Service will allow, and you may provide and assign access and passwords to such users. You will be responsible for the confidentiality and use of your access number(s), password(s), and account number(s). You will be responsible for all electronic communications, including account registration and other account holder information, email and financial, accounting, and other data; including any Content (“Electronic Communications”) entered through or under your access number(s), password(s) or account number(s). ServiceMonster will deem any Electronic Communications it receives under your access number(s), password(s) or account numbers(s) will have been sent by you, and act in-kind. You agree to immediately notify ServiceMonster if you become aware of any loss or theft or unauthorized use of any of your access number(s), password(s) and/or account number(s).
4. Member Conduct
You agree not to use the Service for:
A. Impersonation of any person or entity, including but not limited to, a ServiceMonster official, guide or host, or falsely state or otherwise misrepresent your affiliation with a person or entity;
B. Interference with or disruption of the Service, including interference with servers or networks connected to the Service;
C. Violation of any applicable law or regulation, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission and any rules of any securities exchange;
D. Providing instructional information about, or otherwise inciting illegal activities;
E. The use, viewing, or copying any portion of the service for purposes of creating or modifying a competing product or service.
5. General Practices Regarding Use, Storage and Service Access
You acknowledge that ServiceMonster may establish practices and limits concerning use of the Service, including without limitation establishing the maximum amount of storage space you have on the Service at any time, as well as limiting the number of times (and the maximum duration for which) you may access the Service in a given period of time. You agree that ServiceMonster has no responsibility or liability for the deletion or failure to store any Content maintained or transmitted by the Service. As a condition of use for this Service, you agree that, in the event of an error with the Service, a representative of ServiceMonster shall be permitted to access your Content as necessary to resolve the problem. You acknowledge that ServiceMonster reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
6. Consumer Information and Privacy
6.1 Privacy. ServiceMonster recognizes the account owner of record as the exclusive owner of the data entered by either the account owner or an authorized user of the account into ServiceMonster. The use of this service does not entitle, in whole or in part, the sale or distribution of your Content by ServiceMonster to another person, company or entity. It may be necessary, however, for a representative of ServiceMonster to access your Content to resolve any problems you, or others, may encounter. ServiceMonster reserves the right to obtain system metadata and analytics for the purpose of member support, marketing, or business operations of ServiceMonster.
6.1.1 Personal Contact Information. ServiceMonster may use the phone and email information you provide to contact you via phone, text messages, and email about your service or any interest you have shown in our services. If you do not have a ServiceMonster subscription, you may contact us via email or phone if you would like us to forgo future contact attempts.
6.2 Healthcare Information. You acknowledge and agree that the Service, related Services, and Content are not “HIPAA ready” or “HIPAA compliant” and will not assist with or ensure compliance with HIPAA. You are solely responsible for using the Service, related Services, and Content in a manner consistent with all applicable federal and state privacy laws relating to medical or health information.
7. Modifications to the Service
Modifications to the Service. ServiceMonster reserves the right at any time to temporarily or permanently modify or discontinue the Service (or any part thereof) at reasonable notice to you. You agree that ServiceMonster shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service. At any time ServiceMonster may specify the version(s) of related products required in order to use the Service (e.g. supported browser versions).
8. Modifications to the Terms of Service.
You agree that ServiceMonster may modify the Terms of Service to comply with any other agreements that ServiceMonster is currently bound by or will be bound by in the future, and/or with applicable law, as well as to adjust to changing business circumstances. Your continued use of any of the Service shall constitute your acceptance of the Terms of Service with the new modifications. If you do not agree to such changes, you may terminate the Terms of Service by immediately terminating all access and use of the Service. You agree that such termination will be your exclusive remedy if you do not wish to abide by any changes to the Terms of Service.
You agree to pay the then-current non-refundable fees associated with the level of Service you choose. Additional fees may apply for (a) additional user licenses (b) optional add-on features to the Service. Additional fees may apply in the event you elect to transfer from one level of the Service to another. When you subscribe and provide payment information, your chosen payment method will be charged, and will automatically be debited monthly or annually depending upon the schedule of payments chosen upon subscribing. You will be charged to maintain the service unless you notify us to cancel the Service prior to the beginning of the next renewal period. ServiceMonster reserves the right to modify its fees with or without notice for future purchases or changes to your current Service.
10. Termination Policy
You may terminate your Service at any time either by (a) directly terminating your subscription though the Service, or (b) by providing electronic mail correspondence, issued from the account holder’s email account of record. Failure to notify us with the account holder’s electronic mail account on record may result in non-termination and continued charges for the Service.
Upon termination your pre-paid non-refundable credits will allow you to access to the Service until the next renewal period, at which time, your account will be suspended.
You acknowledge and agree that ServiceMonster may suspend or terminate your account and/or deny you access to, use of, or submission of Content for, all or part of the Service, without prior notice, if you engage in any conduct that ServiceMonster believes, in its sole discretion: (a) violates any term or provision of the Terms of Service, (b) violates the rights of ServiceMonster or third parties, (c) is otherwise inappropriate for continued access and use of the Service. In addition, ServiceMonster reserves the right to terminate inactive membership accounts. You agree that upon termination, either by you or us, we will maintain your content for 30 days, after which, we may delete all Content and information related to your account at any time as determined by ServiceMonster and may bar your access to your account and the Service including, but not limited to, access to any of your Content entered into or used in connection with the Service immediately upon cancellation. Upon request, ServiceMonster will provide, through mail or electronic mail, a copy of your Content. If you choose to request a copy of your content, you must do so within 30 days of cancelation. Should you decide to return to ServiceMonster after a cancellation, if you are outside of the 30-day window mentioned above, you will need to create a new account. Further, you agree that ServiceMonster shall not be liable to you or any third-party for any termination of your access to the Service. You agree to defend, indemnify, and hold ServiceMonster harmless from and against all claims, losses, liability costs and expenses (including but not limited to attorneys’ fees) arising from your violation of the Terms of Service, state or federal laws or regulations, or any third party’s rights, including but not limited to infringement of any copyright, violation of any proprietary right and invasion of any privacy rights. This obligation will survive the termination of Service.
The Service may provide links to other World Wide Web sites or resources. You acknowledge and agree that ServiceMonster is not responsible for the availability of such external sites or resources, and publication of these links is not an endorsement nor is ServiceMonster responsible or liable for any Content, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that ServiceMonster shall not be responsible or liable, directly, or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Content, goods or services available on or through any such site or resource.
13. ServiceMonster Proprietary Rights
You acknowledge and agree that the Service contains proprietary and confidential information that is protected by applicable intellectual property and other laws. You further acknowledge and agree that Content contained in sponsor advertisements or information that may have been presented to you through the Service or advertisers is protected by copyrights, trademarks, Service marks, patents or other proprietary rights and laws.
12. No Resale, Etc. of the Service
You agree not to copy, sell, resell, rent or sublicense (including offering the Service to third parties on an applications service provider or time-sharing basis), lease, loan, redistribute, or create a derivative work of any portion of the Service, use of the Service, or access to the Service. You agree not to access the Service by any means other than through the interface that is provided by ServiceMonster for use in accessing the Service.
13. Disclaimer of Warranties
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
A. YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE AND ANY CONTENT OR ADD-ON FEATURES THROUGH THE SERVICE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. SERVICEMONSTER AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
B. SERVICEMONSTER AND ITS SUPPLIERS MAKE NO WARRANTY THAT THE SERVICE AND ANY CONTENT OR ADD-ON FEATURES THROUGH THE SERVICE
(i) WILL MEET YOUR REQUIREMENTS OR RESULT IN REVENUES OR PROFITS,
(ii) WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) WILL PROVIDE THE RESULTS THAT OBTAINED FROM THE USE OF THE SERVICE TO BE ACCURATE OR RELIABLE, AND (iv) WILL PROVIDE THE QUALITY OF ANY PRODUCTS, SERVICE, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE TO MEET YOUR EXPECTATIONS. SERVICEMONSTER AND ITS SUPPLIERS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THE TERMS OF SERVICE OR THE SERVICE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, UNLESS SUCH REPRESENTATIONS AND WARRANTIES ARE NOT LEGALLY EXCLUDABLE. SERVICEMONSTER EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES THAT YOUR USE OF THE SERVICE WILL SATISFY ANY STATUTORY OR REGULATORY OBLIGATIONS, OR WILL ASSIST WITH, GUARANTEE OR OTHERWISE ENSURE COMPLIANCE WITH ANY APPLICABLE LAWS OR REGULATIONS, INCLUDING BUT NOT LIMITED TO THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996 (“HIPAA”), THE GRAMM-LEACH-BLILEY ACT OF 1999, THE SARBANES-OXLEY ACT OF 2002, OR OTHER FEDERAL OR STATE STATUTES OR REGULATIONS. YOU ARE SOLELY RESPONSIBLE FOR ENSURING THAT YOUR USE OF THIS SERVICE, RELATED SERVICES OR CONTENT IS IN ACCORDANCE WITH APPLICABLE LAW.
c. ANY CONTENT OR MATERIAL TRANSFERRED FROM, DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE OR ADD-ON FEATURES THROUGH THE SERVICE ARE DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA AND/OR CONTENT THAT RESULTS FROM THE TRANSFER OR DOWNLOAD OF ANY SUCH MATERIAL.
d. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM SERVICEMONSTER OR THROUGH OR FROM THE SERVICE OR ADD-ON FEATURES THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS OF SERVICE.
14. Representations and Warranties.
You represent that, to the best of your knowledge and belief, your use of the Service does not directly or indirectly infringe the legal rights of a third party. You further represent and warrant that all information provided by you in connection with your registration is accurate and reliable.
15. Limitation of Liability
(a) YOU EXPRESSLY UNDERSTAND AND AGREE THAT SERVICEMONSTER AND ITS SUPPLIERS SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, CONTENT OR OTHER INTANGIBLE LOSSES (EVEN IF SERVICEMONSTER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE, CONTENT AND/OR ANY INFORMATION; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICE RESULTING FROM ANY GOODS, CONTENT, INFORMATION OR SERVICE PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (v) ANY OTHER MATTER RELATING TO THE SERVICE.
(b) YOU ALSO AGREE THAT SERVICEMONSTER WILL NOT BE LIABLE FOR ANY (i) INTERRUPTION OF BUSINESS, (ii) ACCESS DELAYS OR ACCESS INTERRUPTIONS TO THIS SITE OR THE WEB SITE(S) YOU ACCESS THROUGH THIS SERVICE; (iii) CONTENT NON-DELIVERY, MIS-DELIVERY, CORRUPTION, DESTRUCTION OR OTHER MODIFICATION; (iv) EVENTS BEYOND SERVICEMONSTER’S REASONABLE CONTROL;
(c) IN NO EVENT SHALL SERVICEMONSTER’S MAXIMUM AGGREGATE LIABILITY EXCEED THE TOTAL AMOUNT PAID BY YOU TO SERVICEMONSTER FOR THE SERVICE, BUT IN NO EVENT GREATER THAN THREE HUNDRED DOLLARS ($300.00). BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES, OUR LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW.
16. Exclusions and Limitations
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 13 AND 15 MAY NOT APPLY TO YOU.
17. General Information
The Terms of Service constitutes the entire agreement between you and ServiceMonster and governs your use of the Service, superseding any prior agreements between you and ServiceMonster (including, but not limited to, any prior versions of the Terms of Service) with respect to its subject matter. You also may be subject to additional terms and conditions that may apply when you use affiliate or other ServiceMonster services, third-party content or third-party software. Except as otherwise provided herein, the Terms of Service shall be governed by the laws of the State of Washington without regard to its conflict of law provisions. Except as otherwise provided in the Terms of Service, you and ServiceMonster agree to submit to the personal and exclusive jurisdiction of the courts located within the county of Whatcom, Washington. The Terms of Service does not limit any rights that ServiceMonster may have under trade secret, copyright, patent, trademark or other laws. The failure of ServiceMonster to exercise or enforce any right or provision of the Terms of Service shall not constitute a waiver of such right or provision. If any provision of the Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms of Service remain in full force and effect. You agree that any claim or cause of action arising out of or related to use of the Service or the Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred. The section titles in the Terms of Service are for convenience only and have no legal or contractual effect. The Terms of Service will inure to the benefit of ServiceMonster and its successors and assigns.
All representations, warranties, Sections, 11, 13, 14, 15, 16, 17 and 18 in the Terms of Service shall survive the termination of the Terms of Service.