Last Updated: April 11, 2017
Welcome, and thank you for your interest in Contiq, Inc. (“Contiq”) and our website at www.contiq.com (the “Site”) and other services provided by us. These Terms of Service are a legally binding contract between you (the “Customer”) and Contiq regarding your use of the Site and the Service.
PLEASE READ THE FOLLOWING TERMS CAREFULLY
Contiq is a provider of a service that allows users to access, analyze, and present sales and marketing content held throughout an enterprise, along with related services (the “Service”). [Will there be any applications?]
2.1 Provision of Service. Subject to these Terms, Contiq will make the Service available to the Customer.
2.2 Accounts and Registration. To access the Service, Customer must register for an account (“Account”). When Customer registers for an Account, Customer may be required to provide Contiq with some information, including contact information. Customer agrees that the information Customer provides to Contiq is accurate and that Customer will keep it accurate and up-to-date at all times. When Customer registers for an Account, Customer will be asked to provide a password. Customer is solely responsible for maintaining the confidentiality of Customer’s Account and password, and Customer accepts responsibility for all activities that occur under Customer’s Account. If Customer believes that Customer’s Account is no longer secure, then Customer must immediately notify Contiq at [insert support email address here].
2.3 Contiq Basic. If Customer wishes to access Contiq Basic (a “Free Version”), Customer must register for an Account as set forth in Section 2.2, and follow the instructions on the account home page to begin accessing the Free Version of the Service. [Please confirm the process for accessing Contiq Basic] Customer’s use of a Free Version is limited to 1 authorized user. [Is this limitation accurate, or will Free Version users be allowed to authorize employees to access the service as is the case with the Paid Version? Are there any additional constraints (save differing service capabilities) that apply to the Free Version only?] Customer may not allow third parties to access the Service.
2.4 Contiq Professional or Contiq Enterprise. If Customer wishes to access Contiq Professional or Contiq Enterprise (each, a “Paid Version”), Customer must register for an Account as set forth in Section 2.2 and submit a purchase order through Customer’s Account for the applicable Paid Version. [Please confirm this process; will a purchase order be submitted through Customer’s account?] Customer may authorize the number of employees set forth in the purchase order to access the Service (“Authorized Employees”). [Is this accurate? Will there be a cap on authorized employees?] Authorized Employees may use the Service solely for its intended purpose in accordance with these Terms. Customer shall be liable for any breach of these Terms by Authorized Employees. Customer may not allow third parties to access the Service.
2.5 Infrastructure. Contiq may host the Service using a third party hosting service provider. The Service may periodically be unavailable due to maintenance. Contiq makes no service-level guarantees in connection with the hosting of the Service. [Please confirm that you would not like to make any service level guarantees]
3 FEES AND PAYMENT
3.1 Fees. If Customer accesses a Paid Version of the Service, Customer shall pay Contiq the fees specified in an applicable purchase order, according to the payment terms specified in that order. All amounts paid are non-refundable. [Please confirm the terms surrounding payment. Will there be a link that specifies the applicable fees? How will payment be set up? Will customers enter in their credit card information? Will there be automatic billing/recurring payments?]
3.2 Taxes. All fees are exclusive of applicable sales, excise, use or similar taxes. Customer shall pay all such taxes either directly or to Contiq, as required by applicable law or regulation.
4.1 Access to Third Party Accounts. To the extent Customer desires to use the Service in connection with materials located on Customer’s Dropbox, Box, Google Drive, or other third-party accounts (collectively, “Third Party Accounts”), Customer hereby grants Contiq permission to access the Third Party Accounts solely in connection with Contiq’s provision of the Service to Customer.
4.2 Content License and Ownership. Customer retains ownership of any content accessed through Customer’s Third Party Accounts or content Customer has uploaded to the Service in connection with Customer’s use of the Service (collectively, “Customer Content”). [Are there any situations where Customers would upload content to the website, not in connection with their use of the Service? E.g. a support forum] Subject to these Terms and solely to provide the Service to the Customer, Customer grants and agrees to grant to Contiq a non-exclusive license to use, reproduce, display, and distribute Customer Content.
4.3 Content Export Function. Contiq will make available to Customer an export function so that Customer may retrieve Customer Content stored on the Service that is under Contiq’s control, provided that Contiq may charge a reasonable fee for such additional service. [Will you provide this function?]
4.4 Customer Content Representations and Warranties. Contiq disclaims any and all liability in connection with Customer Content. Customer is solely responsible for Customer Content and the consequences of submitting, publishing, or sharing Customer Content. By submitting, publishing, or sharing Customer Content, Customer affirms, represents, and warrants that:
4.4.1 Customer has the right to grant Contiq access to Third Party Accounts;
4.4.2 Customer is the creator and owner of the Customer Content, or has the necessary licenses, rights, consents, and permissions to authorize Contiq to exercise the licenses granted by Customer in this Section, in the manner contemplated by Contiq, the Service, and these Terms; and
4.4.3 Customer Content, and the use of Customer Content as contemplated by these Terms, does and will not: (i) infringe, violate, or misappropriate any third party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or other proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity, or other property rights of any other person; or (iii) cause Contiq to violate any law or regulation.
4.5 Customer Indemnification. Customer shall indemnify, defend, and hold harmless Contiq and its directors, employees, agents, and distributors from and against all damages and liabilities (including reasonable attorneys’ fees) that arise from a third party’s claim resulting from (a) Customer’s use of, or misuse of, the Site or Service; (b) Customer’s violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; or (c) Customer’s violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right. Contiq reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Customer (without limiting Customer’s indemnification obligations with respect to that matter), and in that case, Customer agrees to cooperate with Contiq’s defense of those claims.
5 PRIVACY AND DATA SECURITY
6 PROPRIETARY RIGHTS
6.1 Ownership. Contiq shall own all right, title, and interest, including all intellectual property rights, in and to the Site and Service, including all modifications, derivative works, improvements, updates and upgrades, and including all content and information made available through the Site or Service (other than Customer Content as defined above). Contiq does not grant any licenses, whether express or implied, to any Contiq data, content, software, services, or intellectual property rights.
6.2 Feedback. Customer grants Contiq a perpetual, irrevocable, worldwide, royalty-free, fully paid, unrestricted right and license to use and exploit any and all feedback Customer provides to Contiq regarding the features and performance of the Site or Service and any information regarding any and all failures, errors, or other malfunctions in the Site or Service, provided that the foregoing does not change the terms and conditions of these Terms with respect to Customer Content that may be included in such feedback.
6.3 Use Restrictions. Customer may not, and may not permit any third party to: (i) copy, reproduce, modify, translate, prepare derivative works of, de-compile, reverse engineer, disassemble or otherwise attempt to derive source code from the Site or Service or the underlying software; (ii) use, evaluate or view the Site or Service for the purpose of designing, modifying, or otherwise creating any environment, program, or infrastructure or any portion thereof, which performs functions similar to the functions performed by the Site or Service; (iii) use the Site or Service in violation of these Terms; (iv) use the Site or Service to violate any law or regulation, (v) disable, impair, disrupt, or otherwise interfere with the normal operation of the Site or Service using any means, including without limitation hacking, malware deployment, or password mining; (vi) access features of the Site or Service for which Customer has not registered; (vii) use any robot, spider, scraper, or other automated means to access the Site or Service for any purpose without Contiq’s express written permission, or bypass our robot exclusion files or other measures Contiq may use to prevent or restrict access to the Site or Service; (viii) impersonate another person or entity, or access another Customer’s Account without that Customer’s permission; (ix) enable or allow others to access the Service using Customer’s authorization to use the Service; (x) share Contiq passwords with any third party or encourage any other user to share his or her Contiq password; (xi) use the Site or Service in connection with pornographic, threatening, embarrassing, hateful, racially or ethnically insulting, libelous, or otherwise inappropriate content or behavior; (xii) access the Site or Service from any country or territory where the contents of the Service are illegal; (xiii) misrepresent the source, identity, or content of information transmitted via the Site or Service; (xiv) transmit any material that may infringe the intellectual property rights or other rights of third parties; (xv) use the Site or Service on behalf of any unauthorized third party; or (xvi) remove, obscure, or alter any copyright notice, trademarks, logos and trade names, or other proprietary rights notices affixed to, or contained within the Site or Service.
Confidential Information. “Confidential Information” means the Site and Service and all code, inventions, algorithms, know-how and ideas relating thereto (whether patentable or not), the operation of the Site and Service, and all associated documentation. Confidential Information shall not include information which is (i) generally known to the public or readily ascertainable from public sources (other than as a result of a breach of confidentiality hereunder), (ii) independently developed by Customer without reference to or reliance on any Confidential Information, as demonstrated by written records of the receiving party, or (iii) obtained from an independent third party who created or acquired such information without reference to or reliance on Confidential Information, and without breach of any obligation of confidentiality. Customer shall not disclose Confidential Information to any third party for any reason, and shall only disclose Confidential Information to its employees who have a need to know such information and are under a legally binding obligation of confidentiality. Customer shall keep and have its employees keep all Confidential Information of Contiq confidential and shall not copy or disclose the same, or authorize its employees to copy or disclose the same, except as specifically authorized by these Terms, without the prior written consent of Contiq. Customer may use Confidential Information only for the purpose of exercising its rights and performing its obligations pursuant to these Terms. Customer shall use no less than a reasonable degree of care to ensure the protection of the Confidential Information disclosed by Contiq. These Terms do not affect any confidential nondisclosure agreements existing between the parties as of the date of these Terms.
8 WARRANTY DISCLAIMERS AND LIMITATION OF LIABILITY
8.1 Warranty Disclaimer. CONTIQ DISCLAIMS ALL WARRANTIES, CONDITIONS, OR REPRESENTATIONS (EXPRESS, IMPLIED, OR STATUTORY) WITH RESPECT TO THE SITE OR SERVICE OR ANY SUPPORT RELATED THERETO, INCLUDING ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, NON-INTERFERENCE, ACCURACY OF DATA, AND WARRANTIES ARISING FROM A COURSE OF DEALING. CONTIQ DOES NOT MAKE ANY WARRANTIES ABOUT THE LEGALITY OR APPROPRIATENESS OF THE SITE OR SERVICE IN COUNTRIES OUTSIDE OF THE UNITED STATES. CUSTOMER UNDERSTANDS THAT NEITHER CONTIQ NOR ITS LICENSORS OR SERVICE PROVIDERS WILL BE LIABLE FOR ANY DAMAGES RESULTING FROM OR IN CONNECTION WITH THE USE OF THE SITE OR SERVICE OR SERVICE PROVIDER. Customer understands and agrees that because the Site and Service is new, it may contain design errors and other defects, and that there is no guarantee that such errors and other defects will be corrected.
8.2 Limitations of Liability. CONTIQ WILL NOT BE LIABLE TO CUSTOMER FOR ANY LOST REVENUE, LOST PROFITS, COST OF PROCUREMENT OF SUBSTITUTE SERVICES, INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES, LOSS OF DATA, OR INTERRUPTION OF BUSINESS, EVEN IF CONTIQ IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. IN NO EVENT SHALL THE TOTAL COLLECTIVE LIABILITY OF CONTIQ FOR ALL CLAIMS UNDER OR IN ANY WAY RELATED TO THESE TERMS EXCEED THE GREATER OF (1) AGGREGATE FEES PAID OR OWED BY CUSTOMER UNDER THESE TERMS; OR (2) $100.
9 TERM AND TERMINATION
9.1 Term. These Terms continue perpetually until terminated.
9.2 Term of Service Subscription
9.2.1 Free Version Subscription Term. Subject to Customer’s compliance with these Terms, Customer’s subscription to the Free Version of the Service continues until Customer closes down Customer’s Account.
9.2.2 Paid Version Subscription Term. Subject to Customer’s compliance with these Terms, the term of Customer’s subscription to the Paid Version of the Service is as set forth in an order. [Will the paid version subscription term auto-renew?]
9.3 Termination for Breach. In the event that either party is in material breach of these Terms, and the breaching party does not cure such breach within thirty (30) days following notice of such breach from the non-breaching party, then the non-breaching party may terminate these Terms by sending written notice to the breaching party.
9.4 Effect of Termination. Upon termination of these Terms, subject to Section 9.5 below, Customer must immediately stop using the Site and Service. Upon termination of the Terms, Sections 3 (with respect of fees accrued prior to the effective date of termination), 4.4, 4.5, 5.2, 6, 7, 8, 9.4, 9.5, 10, 12, 13, and 14 will survive and remain in effect.
9.5 Access to Customer Content upon Termination or Expiration. Customer will have access to the Customer Content stored on the Service for thirty (30) days after any termination of these Terms or expiration of an applicable subscription term for the sole purpose of copying or transferring such Customer Content off the Service. [Is this appropriate?]
10 MODIFICATION OF THE SITE, THE SERVICE, AND TERMS
10.1 Modification of the Service. Contiq shall not materially decrease the functionality of the Paid Version of the Service during the Paid Version subscription term set forth in an order. [Is this an appropriate commitment?] Notwithstanding the foregoing, Contiq reserves the right to modify the Site or Service at any time (including by limiting or discontinuing certain features of the Site or Service), temporarily or permanently, without providing notice to Customer. Subject to this Section 10.1, Contiq will have no liability for any change to the Site or Service or any suspension or termination of Customer’s access to or use of the Site or Service.
10.2 Modification of these Terms. Contiq reserves the right to change these Terms on a going-forward basis at any time upon 7 days’ notice. Please check these Terms periodically for changes. If a change to these Terms materially modifies Customer’s rights or obligations, Customer will be required to accept the modified Terms in order to continue to use the Site or Service. Material modifications are effective upon Customer’s acceptance of the modified Terms. Immaterial modifications are effective upon publication.
Customer agrees that Contiq may include the name, logo, and success stories of Customer on Contiq’s website, press releases, promotional and sales literature, and advertising materials.
Either party may assign these Terms in connection with a merger, acquisition or sale of all or substantially all of its assets related hereto. Except as expressly stated in this section, neither party may assign its rights or obligations under these Terms without obtaining the other party’s prior written consent. Any assignment in contravention of this section shall be void.
13 GOVERNING LAW AND VENUE
These Terms are governed by the laws of the State of California (excluding any rule or principle that would refer to and apply the substantive law of another state or jurisdiction). Further, the parties agree that any claim or cause of action under or relating to these Terms will be brought in the state or federal courts located in Santa Clara County, California, United States and the parties agree to submit to the exclusive personal jurisdiction of such courts.
14.1 Independent Contractor. In performing under these Terms, each party is acting as independent contractor, and in no way are the parties to be construed as partners, joint venturers, or agents of one another in any respect.
14.2 Contact Information. The Site and Service are offered by Contiq, Inc., located at 1735 Technology Dr., STE 770, San Jose, CA 95110. Customer may contact Contiq by sending correspondence to that address or by emailing Contiq at [insert contact email address here].
14.3 Force Majeure. Contiq will not be in default for failing to perform any obligation hereunder, if such failure is caused solely by supervening conditions beyond Contiq’s control, including without limitation acts of God, civil commotion, strikes, terrorism, failure of third party networking equipment, failure of the public Internet, power outages, labor disputes or governmental demands or restrictions.
14.5 Miscellaneous. These Terms constitute the entire agreement between the parties regarding the subject matter stated herein, and supersedes all previous communications, representations, understandings, and agreements, either oral, electronic, or written. Headings herein are for convenience of reference only and shall in no way affect interpretation of these Terms. Nothing contained in any other document, except payment terms and conditions specified in an order, will in any way modify these Terms or add any additional terms or conditions. If any provision of these Terms, or the application thereof, is for any reason and to any extent be determined by a court of competent jurisdiction to be invalid or unenforceable under applicable law, a valid provision that most closely matches the intent of the original will be substituted and the remaining provisions of these Terms will be interpreted so as best to reasonably effect its original intent. No delay or omission by a party to exercise any right or power occurring upon any breach or default by the other party with respect to any of these Terms impairs any such right or power or be construed to be a waiver thereof.