TERMS OF SERVICE (SUBSCRIPTION)
Last updated as of: September 1, 2017
ACCEPTANCE OF TERMS
The following agreement outlines Subscriber’s obligations when using the Services (as such term is defined elsewhere herein) offered from time to time by Counselytics Ltd. (“CSL”) or its Affiliates. The Services and all content contained within the Services are owned, maintained, offered and operated by CSL.
The Services are accessed or used by Subscriber under the terms and conditions of use described below (the “Terms of Service” or “ToS”). PLEASE READ THESE TERMS OF SERVICE CAREFULLY BEFORE USING THE SERVICES. BY ACCESSING OR USING THE SERVICES, SUBSCRIBER AGREES TO BECOME BOUND BY THE TERMS OF SERVICE. IF SUBSCRIBER DOES NOT AGREE TO ALL THE TERMS OF SERVICE, THEN SUBSCRIBER SHOULD NOT ACCESS THE SERVICES. CSL’S ACCEPTANCE OF SUBSCRIBER’S USE OF THE SERVICES IS EXPRESSLY CONDITIONED UPON SUBSCRIBER’S ASSENT TO ALL OF THE TERMS OF SERVICE, TO THE EXCLUSION OF ANY OTHER TERMS. IF THESE TERMS OF SERVICE ARE CONSIDERED AN OFFER BY CSL, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.
CERTAIN DEFINITIONS; INTERPRETATION
Any terms capitalized but not defined herein shall have the meanings ascribed to them elsewhere in the Platform Agreements.
“Affiliate,” with respect to Subscriber or CSL, shall mean any legal entity that directly or indirectly, through one or more intermediaries, controls or is controlled by, or is under common control with, Subscriber or CSL.
“Anonymized Data” shall mean any elements, components, composites or aggregations of any and all data collected by CSL through and in connection with the Services provided that: (a) such Anonymized Data has been “anonymized” in accordance with accepted data industry practices; (b); such Anonymized Data does not contain any personal information, or financial information specific to a Subscriber or any of their customers or affiliates; and (c) such Anonymized Data does not otherwise violate any person’s legal right to privacy.
“Authorized Representative” shall mean the individual identified as such as part of the onboarding process in connection with the execution of the Subscription Agreement.
“Authorized User” shall mean the individual(s) authorized by Subscriber to access and use the Services from time to time, provided that such individual(s) may only access or use the Services in their exclusive capacity of employees of, or independent contractors engaged by, Subscriber.
“Business Day” shall mean any day which is not a Saturday, Sunday or public holiday in the State of New York.
“Confidential Information” consists of the details of the Services, the results of any performance tests of the Services, as well as any other information that is non-public or proprietary, whether or not marked confidential, including, but not limited to, all non-public information of each party and its consumers, all pricing, customer lists, and other business information of Subscriber. A party’s Confidential Information shall not be deemed to include information that: (a) is or becomes publicly known other than through any act or omission of the receiving party; (b) was in the other party’s lawful possession before the disclosure; (c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; (d) is independently developed by the receiving party, which independent development can be shown by written evidence; or (e) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body; provided, however, that in the event any Confidential Information is required to be disclosed by law, by an court of competent jurisdiction or any regulatory or administrative body, the disclosing party shall promptly notify the other party of such requirement prior to disclosing such Confidential Information and shall cooperate with the other party’s attempts to obtain a protective order. Notwithstanding anything to the contrary, CSL may utilize Confidential Information on an anonymized and aggregated basis for the purposes of training algorithms and planning for technical feature engineering so long as no unique data, or data which may identify a particular agreement or a party thereto, are disclosed to third parties or otherwise individually utilized in such training and planning by CSL.
“Effective Date” shall mean the date as of which the Subscription Agreement is entered into by Subscriber.
“Fees” shall mean the subscription fees payable by Subscriber to CSL for accessing and using the Services pursuant to the Services Matrix.
“Franchise” shall mean the business referred at the address from which Subscriber ordinarily operates such business.
“Normal Business Hours” shall mean 9.00 am EST to 10.00 pm EST of each calendar day.
“Party” shall mean either CSL or Subscriber, respectively, and “Parties” shall mean CSL and Subscriber, collectively.
“Services” shall mean, collectively, (i) the services described in the Services Matrix below, if an; (ii) the Site; (iii) the Software; and (iv) any and all services ancillary to (i) through (iii).
“Services Matrix” shall mean the schedule of, among other things, Services, prices and cancellation periods set out elsewhere in these ToS and if not, pursuant to a separate Purchase Order.
“Site” shall mean the website available at http://counselytics.com or such other website address as may be notified to Subscriber from time to time.
“Software” shall mean a platform, and all data and processes contained therein, maintained and operated by CSL and/or its Affiliate(s) designed to discover and analyze important enterprise files and the data inside them, deploying cloud-based software to increase the flexibility of data management, reporting and decision-making, streamlining internal operational effectiveness and centralizing the storage and accessibility of historical and current data for ease-of-use.
“Subscriber” shall mean the person (whether a natural person or company) on behalf of which the Platform Agreements are entered into and, to the extent so required by the terms and conditions of the Platform Agreements, Affiliates of such person.
“Subscription Agreement” shall mean the CSL Services Subscription Agreement between CSL and Subscriber with respect to the Services, as in effect, and as amended, from time to time.
“Taxes” shall mean any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever.
“Virus” shall mean any thing or device (including any software, code, file or program) that may: (a) prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; (b) prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or (c) adversely affect the user experience, including worms, Trojan horses, viruses and other similar things or devices.
TERMS OF SERVICE
To become or remain a Subscriber, Subscriber must maintain a subscription for both CSL Subscription and CSL Data pursuant to separate Purchase Order. The cancelation of CSL Subscription and/or CSL Data will result in the termination of Subscriber’s account and any other Services subscribed for.
Additional subscriptions, cancelations and certain optional subscription terminations may be effected by electronic mail to CSL. (See Notices.)
The one-time CSL Setup Fee is payable for a new subscription account established for Subscriber.
AUTHORIZED USERS; SYSTEMS AND CONTROL
Subject to the terms of the Platform Agreements, CSL grants to Subscriber a non-exclusive, non-transferable right to permit the Authorized Users to access and use the Services.Â Subscriber may select such Services as the Services Matrix shall make available for selection or de-selection from time to time. Subscriber may effect changes to such Service subscriptions through additions or cancelations by electronic mail to CSL from time to time, provided that the terms and condition in respect of cancelations and terminations of Services as reflected in the Services Matrix shall govern such cancelations and terminations.
Subscriber acknowledges and agrees that Subscriber shall use the Services solely for Subscriber’s own benefit and that it shall not allow others to use the platform under or through Subscriber’s account. Specifically, Subscriber shall access and use the Services solely for Subscriber’s internal business operations and solely for the benefit of the Franchise and not for other franchises at the same or other location.
Subscriber shall at all times maintain records and logs of the identities of all Authorized Users from to time. CSL shall notify Subscriber in the event of any unauthorized access to, or use of, the Services.
Subscriber may not use any information found as part of the Services for commercial resale or any other exploitation without the prior written consent of CSL.
Subscriber represents and warrants that Subscriber maintains Subscriber’s IT systems such that, at a minimum, Subscriber will maintain user role based access and ACL (access control levels) and security to business sensitive data, single user usage per account and appropriate processes and policies in place for named user data access and usage audits. If such level of security is not maintained, CSL shall not be liable for any damages related thereto.
Subscriber shall be prohibited from violating or attempting to violate the security of the Site. CSL will investigate occurrences of possible violations and will cooperate with all applicable law enforcement authorities in prosecuting violators.
Subscriber shall: (a) in order to render the Services, provide CSL with (i) all necessary co-operation in respect of the Platform Agreements; and (ii) data elements reasonably requested by CSL in a widely accepted file format; (b) comply with all applicable laws and regulations with respect to its activities under the Platform Agreements; (c) carry out all other Subscriber responsibilities set out in the Platform Agreements in a timely and efficient manner (and in the event of any delays in Subscriber’s provision of such assistance as agreed by the parties, CSL may adjust any agreed timetable or delivery schedule as reasonably necessary); (d) ensure that the Authorized Users use the Services in accordance with the Platform Agreements and shall be responsible for any Authorized User’s breach of the Platform Agreements; (e) make reasonable efforts to ensure its network and systems software are compatible with CSL’s Services.
Subscriber shall not knowingly (after taking commercially reasonable precautions) access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that: (a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; (b) facilitates illegal activity; (c) depicts sexually explicit images; (d) promotes unlawful violence; (e) is discriminatory based on race, gender, color, religious belief, sexual orientation, disability, or any other illegal activity; or (f) causes damage or injury to any person or property; and CSL reserves the right, without liability to Subscriber, to disable Subscriber’s access to any material that breaches this provision.
Subscriber shall not: (a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the Parties: (i) and except to the extent expressly permitted under the Platform Agreements, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software (as applicable) in any form or media or by any means; or (ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or (b) access all or any part of the Services in order to build a product or service which competes with the Services; or (c) use the Services to provide services to third parties; or (d) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party except the Authorized Users; or (e) attempt to obtain, or assist third parties in obtaining, access to the Services.
CSL shall provide the Services to Subscriber on and subject to the terms of the Platform Agreements. CSL shall make commercially reasonable efforts to make the Services available 24 hours a day, seven days a week; provided, however, that CSL may carry out scheduled and unscheduled maintenance work as necessary from time to time and such maintenance work may impact the availability of the Services. In respect of any scheduled or unscheduled maintenance, CSL will make commercially reasonable efforts to perform such work outside Normal Business Hours and, where appropriate, give Subscriber notice of such maintenance work in advance.
SUBSCRIBER SUPPORT SERVICES
CSL will, as part of the Services and at no additional cost to Subscriber, provide Subscriber with CSL’s standard subscriber support services during Normal Business Hours in accordance with CSL’s support services policy in effect at the time that the Services are provided. CSL may amend the support services policy in its sole and absolute discretion from time to time.
Subscriber shall pay the Fees as calculated in accordance with the Services Matrix.
Subscriber’s payment obligations are noncancellable and Fees paid are non-refundable. While Subscriber may reduce any or all of the Services subscribed for at any time, such reduction shall have no effect on the Fees paid or payable unless made in accordance with the Cancelation Period set forth in the Service Matrix above.. (More detailed provisions regarding Subscriber’s right to effect cancelations and/or termination are described elsewhere in these ToS.)
Subscriber will provide CSL with valid and updated credit/debit card information and authorize CSL to charge such credit/debit card for all Services for the initial subscription term and any renewal subscription term(s). Alternatively, CSL may also accept business checks.
Subscriber is responsible for providing complete and accurate billing and contact information to CSL and notifying CSL of any changes to such information.
If any invoiced amount is not received by CSL by the due date, then without limiting CSL’s rights or remedies, those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower.
If any amount owing by Subscriber under the Platform Agreements for Services is 30 or more days overdue, CSL may accelerate Subscriber’s unpaid Fee obligations under such Platform Agreements so that all such obligations become immediately due and payable, and suspend Services.
The Fees do not include Taxes. Subscriber is responsible for paying all Taxes associated with its purchases hereunder.
Each of CSL and Subscriber may be given access to Confidential Information from the respective other party in connection with the Services. Each of Subscriber and CSL shall hold the respective other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of the Services and the Platform Agreements.
Each of CSL and Subscriber shall take all reasonable steps to ensure that the other party’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of the Platform Agreements. Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party except if such loss, destruction, alteration or disclosure was the result of a breach of either party’s obligation under any of the Platform Agreements or as a result of a violation of applicable laws, rules or regulations. CSL acknowledges that Subscriber’s Data is Subscriber’s Confidential Information. This provision shall survive termination of the Services and the Platform Agreements, however arising.
Subscriber acknowledges and agrees that the Software is the sole property of CSL and includes valuable trade secrets of CSL. Subscriber agrees to treat such Software as strictly confidential and that Subscriber will not, without the express written authorization of CSL: (i) demonstrate, copy, sublicense, sell or market the Software to any third party; (ii) publish or otherwise disclose information relating to performance or quality of the Software to any third party; (iii) modify, reuse, disassemble, decompile, reverse engineer or otherwise translate the Software or any portion thereof; or (iv) copy, use or transfer any direct mail marketing materials developed by CSL.
Except with respect to Anonymized Data, CSL acknowledges and agrees that any data provided by Subscriber is the sole property of Subscriber and may only be used by CSL for Subscriber’s benefit in performance of the Services.
THIRD PARTY DATA PROVIDERS, PARTNERS; ANONYMIZED DATA
Subscriber acknowledges and agrees that CSL may disclose data it collects through or in connection with the Services to its third party agents and partners (“Service Partners”) who: (i) have a “need to know” for purposes of any performance of Services hereunder; (ii) have been informed in writing of the highly confidential nature of the data and the limitations, procedures and obligations that apply to the access, use and disclosure of such data; and (iii) are themselves bound by written restricted use and nondisclosure agreements or obligations with CSL. CSL shall be responsible for a Service Partner’s unauthorized use or disclosure of any Subscriber data obtained from CSL.
Subscriber acknowledges and agrees that CSL may disclose, transfer, sell to third parties, or otherwise process, and/or monetize with or without the involvement of third parties, any and all Anonymized Data in accordance with all applicable laws, rules and regulations.
Subscriber represents and warrants that Subscriber has secured any consent required by law, rule or regulation from any applicable parties who own or control information (personal or otherwise) that is transmitted to CSL in connection with the Services.
If CSL processes any personal data on Subscriber’s behalf when performing the Services (or any part thereof), Subscriber acknowledges and agrees that: (a) Subscriber shall ensure that Subscriber is entitled to transfer the relevant personal data to CSL so that CSL may lawfully use, process and transfer the personal data in accordance with the Platform Agreements on Subscriber’s behalf; (b) Subscriber shall ensure that the relevant third parties, if required, have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation; (c) CSL shall process the personal data only in accordance with the terms of the Platform Agreements and any lawful instructions reasonably given by Subscriber from time to time; and (d) each Party shall take appropriate technical and organizational measures against unauthorized or unlawful processing of personal data or its accidental loss, destruction or damage.
Subscriber shall own all rights, title and interest in and to all of Subscriber’s data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of Subscriber’s data; provided, however, that Subscriber acknowledges and agrees that CSL may process, use, sell, transfer or otherwise monetize Anonymized Data as provided elsewhere in these ToS in accordance with all applicable laws, rules and regulations.
In the event of any loss or damage to Subscriber’s data, Subscriber’s sole and exclusive remedy shall be for CSL to use commercially reasonable efforts to restore Subscriber’s lost or damaged data from the latest back-up of such Subscriber’s data maintained by CSL in accordance with its archiving procedure from time to time. CSL shall not be responsible for any loss, destruction or alteration of Subscriber’s data caused by any third party except if such loss, destruction, alteration or disclosure was the direct result of a breach of CSL’s obligation under any of the Platform Agreements or CSL’s violation of applicable laws, rules or regulations. In the event of any loss, damage or alteration of Subscriber’s data, Subscriber shall not incur any additional CSL Setup fees to restore Subscriber’s data.
INTELLECTUAL PROPERTY AND USAGE RIGHTS
CSL shall retain all worldwide right, title and interest in the intellectual property of the Services to the maximum extent permitted by law, including, but not limited to, the trademarks, “look and feel,” color combinations, layout, and all other graphical elements of the Services, and the copyright in and to the original content of the Services. Subscriber should assume that everything Subscriber reads or sees as part of the Services is copyrighted or otherwise protected and owned by CSL, or a third party who licensed the right to use such content to CSL. Unless otherwise expressly noted, nothing that Subscriber reads or sees as part of the Services, or any of the source code or HTML code that CSL uses to generate any part of the Services may be copied, reproduced, modified, distributed, transmitted, republished, displayed, or performed for commercial or other use without the prior written consent of CSL, except as expressly provided in the Platform Agreements or otherwise permitted by relevant law.
Subscriber agrees to notify CSL of all problems and ideas for enhancements which come to Subscriber’s attention during the Period, and Subscriber hereby forever assigns to CSL all right, title and interest to such enhancements and all property rights therein including, without limitation, all patent, copyright, trade secret, mask work, trademark, moral right or other intellectual property rights.
Subscriber may cancel or terminate individual Services, or all of the Services and the Platform Agreements (and the Platform Agreements), for any reason or no reason at all by providing CSL with written notice (including by
Subscriber authorizes to use Subscriber’s trademarks, service marks, logos, and other source identifiers (including, without limitation, in its marketing and promotional materials) to identify Subscriber as a customer of CSL; provided, however, that Subscriber may withdraw such authorization at any time through written notice.
ENTIRE AGREEMENT; AMENDMENTS
The Platform Agreements constitute the only agreements between the Parties with respect to the Services and all other prior negotiations, representations, agreements, and understandings are superseded hereby.
If any provision of the Platform Agreements shall be found by a court to be void, invalid or unenforceable, the same shall be reformed to comply with applicable law or stricken if not so conformable, so as not to affect the validity or enforceability of the Platform Agreements.
All notices and other communications given or made pursuant to the Platform Agreements shall be in writing and shall be deemed to have been given: (a) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (b) if sent by facsimile or e-mail of a PDF document, on the date of receipt of a confirmation of transmission; or (c) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective Parties at the addresses set forth below (or to such other address that may be designated by a Party from time to time in accordance with this provision).
If to CSL:
1133 Broadway Suite 901
New York, NY 10010
If to Subscriber:
The physical location and/or e-mail addresses of the Franchise as identified as part of the onboarding process in connection with the execution of the Subscription Agreement, with attention to the Authorized Representative identified therein and updated by Subscriber from time to time by notice to CSL.
CERTAIN REMEDIES; NO WAIVER
In addition to any legal or equitable remedies that might otherwise be available, the Platform Agreements may be enforced with remedies of specific performance and injunction, both of which are expressly deemed reasonable.
If Subscriber breaches any term of the Platform Agreements, CSL may pursue any legal or equitable remedy available, including but not limited to, direct, consequential, and punitive damages and injunctive relief. CSL’s remedies are cumulative and not exclusive. Failure of CSL to exercise any remedy or enforce any portion of the terms of the Platform Agreements at any time shall not operate as a waiver of any remedy or of the right to enforce any portion of the Agreement at any time thereafter. Users of the Services are responsible for compliance with all applicable regulations and laws.
CSL shall be excused from performance and shall not be liable for any delay in whole or in part, to the extent caused by the occurrence of any Force Majeure Event affecting CSL or a Service Partner for as long as the Force Majeure Event continues.Â “Force Majeure Events” shall be circumstances beyond CSL’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems not involving CSL’s (or the applicable Service Partner’s) employees, computer or telecommunications failures or delays involving hardware or software not within CSL’s (or the applicable Service Partner’s) possession or reasonable control, and network intrusions or denial of service attacks, but only to the extent unavailability results notwithstanding the exercise by CSL (or the applicable Service Partner) of reasonable care and due diligence to avoid or mitigate the same in anticipation of or in response to such causes.
JURISDICTION; APPLICABLE LAWS; DISPUTES
Subscriber will resolve any claim, cause of action or dispute Subscriber has with CSL arising out of or relating to the Services or the Platform Agreements exclusively in a state or federal court located in New York County, New York. The laws of the State of New York will govern the Platform Agreements, as well as any claim, cause of action or dispute that may arise between Subscriber and CSL, without regard to conflict of law principles. Subscriber agrees to submit to the exclusive personal jurisdiction of the courts of the State of New York, located in New York County, for the purpose of litigating all such claims. In any dispute arising under the Platform Agreements, the prevailing party will be entitled to reasonable attorneys’ fees and expenses. Any dispute arising hereunder or related to Subscriber’s use of the Services shall be solely between Subscriber and CSL, and to the fullest extent permitted by law, no dispute or proceeding shall be joined with any other or decided on a class-action basis.