TERMS OF SERVICE
“Affiliate” means a company, corporation, individual, partnership or other legal entity that directly or indirectly controls, is controlled by, or is under common control with a Party to the Agreement. For purposes of this definition, “control” means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of the subject entity.
“Agreement” means these Terms of Service and any Order Form.
“Company” means My Warchest, Inc., a Delaware corporation.
“Customer” means any party subscribing to the Services.
“Effective Date” means the date Customer first subscribes to Company’s services.
“Fees” means the subscription fees listed on the applicable Order Form.
“Order Form” means any Company-provided order form, or other ordering document, web-based or email-based mechanism or registration process used by the Customer to procure the Services from Company.
“Services” means Company’s Internet-based budget management software application service, as offered to Customer on the Order Form, including without limitation all related features, functions, tools, processes data, statistics, analysis, information, databases, documentation, system and network interfaces, internal network, cloud and disk storage, software applications, operating systems, engines, and internal communications backbone used to provide access to and use of such services.
“Service Data” means data, information or material uploaded or routed to Customer via the Services, or transmitted using the Services, or otherwise provided to Customer or Users by Company, together with any derivative works made therefrom. Service Data is deemed to be the Confidential Information of Company.
“User” and “Users” means employees, contractors, representatives, agents and consultants of Customer who are designated by Customer to use or access the Services under the Agreement.
“User Data” means data generated by Customer’s equipment, shared or uploaded by Customer, and/or data otherwise transmitted by Customer or at its direction to Company.
2.1. Company Responsibilities. During the Term of the Agreement, Company agrees to host, maintain and support the Services and make them available to Customer via the Internet or other data transmission system, pursuant to the terms of the Agreement, and any Company policies and documentation posted at its website (as may be amended from time to time). Company will provide the Services in a workmanlike manner using qualified personnel, and in compliance with all applicable laws.
2.2. Customer Responsibilities.
2.2.1. Users may access and use the Services during the Term for Customer’s business purposes; neither Customer nor Users shall sell, resell, license, sublicense, distribute, rent, lease or otherwise commercially exploit the Services except as expressly provided for by the Agreement. Customer and Users must not, without Company’s prior written consent, cause or permit the: (a) use, copying, modification, rental, lease, sublease, sublicense, transfer or other commercial exploitation of, or other third party access to, any element of the Services, except to the extent expressly permitted by this Agreement; (b) creation of any modifications or derivative works of the Services; (c) reverse engineering of the Services; (d) gaining of unauthorized access to the Services or its related systems or networks (for example, by impersonation of another user of the Services or provision of false identity information); (e) interference with or disruption of the integrity or performance of the Services or the data contained therein (for example, via unauthorized benchmark testing or penetration testing); (f) sending, storing or use of any User Data in connection with the Services for which Customer lacks sufficient ownership or other rights; (g) sending of spam or otherwise duplicative or unsolicited messages in violation of applicable law; (h) sending or storing of infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material in connection with the Services (including, without limitation, any material harmful to children or violative of third party privacy rights); (i) sending or storing of any material containing any viruses, worms, trojan horses or other malicious or harmful computer code, files, scripts, agents or programs in connection with the Service; or (j) removal from the Services any language or designation indicating the confidential nature thereof or the proprietary rights of Company or its suppliers.
2.2.2. Customer agrees to provide Company with all cooperation and information reasonably necessary or desirable to implement the Services for Customer. Customer will use commercially reasonable best efforts to prevent unauthorized access to, or use of the Services.
2.2.3. Customer agrees to utilize the Services at all times in compliance with all applicable laws. Customer acknowledges that Company disclaims all responsibility and liability for Customer’s use of the Service, and the accuracy or completeness of any filings or reporting by Customer using the Service.
2.2.4. Customer shall provide and maintain any equipment and ancillary services necessary for Customer to access or use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for access to and use of the Equipment, Service Data and User Data (each as defined below), passwords (including but not limited to administrative and user passwords) and files.
3. SERVICE DATA; USER DATA; USAGE DATA.
3.1. Service Data; License. During the Term of the Agreement, Company grants to Customer a limited, non-exclusive, non-sublicensable, non-transferable, revocable license to access, capture, copy, store, transmit, maintain and display the Service Data solely to the extent necessary to provide the Services to Customer under the Agreement. Customer will maintain the security and integrity of the Services and the Service Data and will inform Company of any third party who requests or obtains access to the Service Data. Upon termination or expiration of the Agreement, Customer will destroy all copies of the Service Data and certify the same in writing to Company; provided that Service Data on back-up media may be destroyed or recycled according to Customer’s retention schedule for such media.
3.2. User Data; License. “During the Term of the Agreement, Customer grants to Company a non-exclusive, non-sublicensable, non-transferable license to use, access, capture, exploit, copy, store, transmit, maintain and display the User Data to provide the Services to Customer, and improve the Services and technology. Company will maintain the security and integrity of the User Data and will inform Customer of any third party who requests or obtains access to the User Data.
3.3. Usage Data. “Usage Data,” means query logs, and any data (other than User Data) relating to the operation, support and/or about Customer’s use of the Services. Notwithstanding anything to the contrary in the Agreement, Company may collect and use Usage Data to develop, improve, support, and operate the Services. Company may not share any Usage Data that includes Customer’s Confidential Information with a third party except (i) in accordance with Section 12 (Confidentiality) of the Agreement, or (ii) to the extent the Usage Data is aggregated and anonymized such that Customer, Customer’s Users, and any other natural persons cannot be identified or reidentified.
As between Company and Customer, Company will own all right, title and interest in and to the Services and Service Data, and Customer will own all right, title and interest in and to the User Data. The Agreement does not transfer or convey to Customer or any third party any right, title or interest in or to the Services and Service Data or any associated intellectual property rights, but only a limited right of use revocable in accordance with the Agreement. Upon termination of the Agreement, Customer will discontinue use of the Services and Service Data.
5. TERM AND TERMINATION.
The Agreement will begin on the Effective Date and shall continue as stated on the Order Form until terminated (the “Term”). Either party may terminate the Agreement at any time for any reason or no reason at all with ten (10) days written notice of termination. Within five (5) days of submission of any notice of termination, Customer will pay Company all Fees remaining due. Upon termination, Company will make all User Data uploaded by Customer into the Services, including contributions and disbursements, available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter Company may, but is not obligated to, delete stored User Data.
6.1. Fees; Billing. Company’s fees, payment frequency, and payment method for the Services are set forth on the Order Form. If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 30 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. All purchases are final and there will be no refunds, credits, or cancellations except as otherwise expressly disclosed at the time of purchase, indicated by Company in writing, or as may be required under applicable law.
6.2. Taxes. Fees do not include any Taxes. Each Party agrees to be responsible for its own taxes applicable under all laws, including taxes based on sales, a Party’s income, unemployment, social security and other payroll and wage taxes. To the extent Company is required to collect any taxes, Company shall separately state the amount of tax due on its invoices to Customer and such invoices will include either Company’s sales tax or use tax permit number. “Tax” or “Taxes” means any sales, use, value-added, excise, or similar transaction taxes or duties, together with any penalties, fines, charges or interest thereon, imposed by any domestic or foreign taxing authority on or with respect to the sale of any services or materials in connection with the performance of the Agreement.
Company warrants that (a) it is the owner of the Services or otherwise has the right to grant Customer the rights and license set forth in the Agreement, and (b) it has sufficient right, title and interest in and to the Service Data.
Except to the extent set forth in Section 7 above, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, COMPANY EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. COMPANY MAKES NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS.
Sections 1, 3.3, 4, 5, 6, 8, 9, 10, 11, 12 and 13 shall survive termination or expiration of the Agreement, in addition to any provisions that by their nature should, or by their own express terms do, survive or extend beyond termination or expiration of the Agreement.
10.1. General Indemnity. To the fullest extent allowed by applicable law, a party (the “Indemnitor”) shall defend the other party, and its respective parent companies, subsidiaries and Affiliates, and its and their officers, stockholders, directors, partners, agents and employees (collectively, the “Indemnified Parties”) against any and all claims, demands, suits, or actions by a third party (“Claims”), and shall release, indemnify, and hold harmless the Indemnified Parties for and from any and all liabilities, obligations, losses, damages, deficiencies, penalties, levies, fines, judgments, settlements, costs and expenses, including interest, litigation costs, and reasonable attorney’s fees (“Losses”), to the extent such Claims or Losses arise out of or result from the negligence of or willful misconduct or material breach by Indemnitor in the performance or nonperformance of the Indemnitor’s obligations under the Agreement. Losses may include, but are not limited to, injury to or death of any person, or damage to or destruction of any property, real or personal.
10.2. Company IP Infringement Indemnification. Regarding any Claim or Losses against Customer Indemnified Parties arising from, and in connection with or otherwise relating to the infringement of any patent, trademark, copyright or other intellectual property rights of a third party and arising out of or related to the Services (the “Infringing IP”), Company shall, at Company’s option after consulting with Customer (in each case, without any cost or expense to Customer), either: (i) procure the right for Customer to continue to use the Infringing IP; (ii) modify or replace the Infringing IP so that it is no longer infringing, provided however that such modification or replacement shall not degrade the functionality, operation or performance of the Services; or (iii) if subsections (i) and (ii) are deemed commercially unreasonable by Company in its sole discretion, Customer shall have the option to terminate the Agreement and provide Customer a pro rata refund of Service Fees paid. Licensor shall have no obligation or liability for any Claim under this Section 10.2 to the extent arising from: (x) the combination, operation or use of the Services with any product, device, software or service not supplied by Company to the extent the combination creates the infringement; or (y) the unauthorized alteration or modification by Customer of the Services. This Section 10.2 states Company’s sole liability and Customer’s sole remedy related to any Infringing IP.
10.3. Indemnification Procedure. The Indemnified Party shall promptly give the Indemnitor notice of any Claim or Loss asserted by a third party for which the Indemnified Party seeks indemnity under this Section 10 (each a “Third-Party Claim”). The Indemnitor shall have reasonable control over the defense and settlement of Third-Party Claims; provided however, that the Indemnitor shall not enter into any Claim settlement requiring payment of money or other affirmative act (or inaction) by Indemnitee without Indemnitee’s consent, which shall not be unreasonably withheld, conditioned, or delayed.
11. LIMITATION OF LIABILITY.
11. 1. EXCEPT FOR EACH PARTY’S INDEMNITY OBLIGATIONS UNDER SECTION 10, EACH PARTY’S LIABILITY FOR ALL CLAIMS OR LOSSES ARISING OUT OF THE AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNT PAID BY CUSTOMER TO COMPANY UNDER THE AGREEMENT DURING THE TWELVE (12) MONTHS PRIOR TO WHEN THE LIABILITY ARISES.
11.2. DAMAGES LIMITATION. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOST REVENUES, DATA, PROFITS, AND/OR GOODWILL, FOR ANY MATTER ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NONPERFORMANCE OF THE AGREEMENT, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.3. BY SUBSCRIBING TO THE SERVICES AND AGREEING TO THESE TERMS, CUSTOMER HEREBY WILLINGLY, EXPRESSLY, AND KNOWINGLY WAIVES ALL RIGHTS TO BRING OR PARTICIPATE IN ANY CLASS-ACTION LAWSUIT, CLASS-WIDE ARBITRATION, OR PRIVATE ATTORNEY-GENERAL ACTION BROUGHT UNDER OR IN CONNECTION WITH THE AGREEMENT OR CUSTOMER’S USE OF THE SERVICES. CUSTOMER MAY NOT BRING ANY CLAIM, SUIT, OR OTHER PROCEEDING TO ENFORCE THIS AGREEMENT AS THE MEMBER OF ANY CLASS OR AS PART OF ANY SIMILAR COLLECTIVE OR CONSOLIDATED ACTION.
12.1. Confidential Information. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose personal, business, technical or financial information relating to the Disclosing Party’s business. Confidential Information of Company includes Service Data and non-public information regarding features, functionality and performance of the Services. Confidential Information of Customer includes User Data. The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge it to any third person. The foregoing shall not apply to any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Confidential Information of the Disclosing Party or (e) is required to be disclosed by law.
12.2. Injunctive Relief. Recipient acknowledges that disclosure of any Confidential Information by it as Receiving Party will give rise to irreparable injury to Discloser or the owner of such information, not adequately compensated by damages. Accordingly, Disclosing Party may seek and obtain injunctive relief against the breach or threatened breach of the undertakings contained herein, in addition to any other legal remedies which may be available, without the requirement of posting bond. Receiving Party further acknowledges and agrees that the covenants contained herein are necessary for the protection of Disclosing Party’s legitimate business interests and are reasonable in scope and content.
13. GENERAL PROVISIONS.
13.1. Notices. Any notices, requests or other communications required or permitted to be given hereunder shall be in writing by email to firstname.lastname@example.org for Company and to the authorized representative of Customer who completed the Order Form for Customer.
13.2. Governing Law. All matters arising from or relating to the Agreement shall be governed and construed in accordance with the laws of the state of California, United States of America, without giving effect to any choice-of-law provision or rule (whether of the state of California or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. The Federal or state courts situated in California have exclusive jurisdiction over the resolution of all disputes that arise under the Agreement, and each Party irrevocably submits to the personal jurisdiction of such courts. If any party commences any action against any other party with respect to the enforcement or interpretation of this Agreement, then the prevailing party in such action shall be entitled to an award of its costs of litigation, including attorney’s fees.
13.3. Successors and Assigns; No Third Party Beneficiaries. The Agreement is legally binding upon and inures to the benefit of the parties and their permitted successors and assigns. No third party is intended to benefit from, nor may any third party seek to enforce, any of the terms of the Agreement.
13.4. Assignment. No Party may assign any of its rights under the Agreement or delegate its performance under the Agreement, whether voluntarily or involuntarily, by merger, consolidation, dissolution, operation of law, or in any other manner, without the prior written consent of the other Party. Notwithstanding the foregoing, upon notice, Company may assign its rights and delegate its performance under the Agreement, and any licenses granted hereunder, to: (i) any entity that acquires all or substantially all of its assets or substantially all of the assets of that portion of its business that manages the Agreement; (ii) any Affiliate that controls, is controlled by, or is under common control with Company; and (iii) any successor in a merger, acquisition, or reorganization, including any judicial reorganization.
13.5. Relationship of the Parties. Company shall furnish all Services as an independent contractor. Nothing contained in the Agreement shall be deemed to create an association, partnership, joint venture, or relationship of principal and agent or master and servant between the parties, or to grant either party the right or authority to assume, create or incur any liability or obligation of any kind, express or implied, against, in the name of, or on behalf of, the other party.
13.6. Complete Agreement. The Agreement constitutes the final agreement between the parties. It is the complete and exclusive expression of the parties’ agreement on the matters contained in the Agreement. All prior and contemporaneous negotiations and agreements between the parties on the matters contained in the Agreement are expressly merged into and superseded by the Agreement. In entering into the Agreement, neither party has relied upon any statement, representation, warranty, or agreement by or from the other party except for those expressly contained in the Agreement.
13.7. Modification. The terms of the Agreement may be modified at any time by Company by posting a revised version at https://www.mywarchest.com/termsofservice and such revised version will become effective the next business day Customer uses the Services. Company will notify the Customer’s agent listed on the Order Form of any revised version. If Customer does not agree with any material modification of the Agreement, Customer must notify Company within thirty (30) days of receiving notice of the revision. On receipt of Customer’s notice, Customer’s subscription will continue under the Agreement prior to the modification until Customer’s renewal of the Agreement, at which point the current version of the Agreement at https://www.mywarchest.com/termsofservice will be effective. If Company can no longer reasonably provide Services under the prior terms of the Agreement, the Agreement will terminate on notice by the Company and provide any applicable refund for prepaid services that remain unused upon the effective date of such termination.
13.8. Savings Clause. If any provision of the Agreement is determined to be invalid, illegal or unenforceable, the remaining provisions of the Agreement remain in full force if the essential terms and conditions of the Agreement for each Party remain valid, binding and enforceable.
13.9. Counterparts. The Agreement may be executed in one or more counterparts, each of which is deemed an original and all of which, taken together, constitutes a single enforceable agreement.
13.10. Electronic Signatures. Each party intends and agrees that the electronic signatures, whether digital or encrypted, of the parties included in an Order Form will authenticate the Agreement and will have the same force and effect as manual signatures. Customer agrees the electronic signature constitutes agreement to be bound by the Agreement as it exists on the Effective Date. An electronic signature means any electronic sound, symbol, or process attached to or logically associated with a record and executed and adopted by a party with the intent to sign such record, including Customer’s submission of the Order Form.