Terms of Service
LAST UPDATED: FEBRUARY 15TH, 2020
THIS AGREEMENT GOVERNS YOUR ACQUISITION AND USE OF OUR SERVICES.
BY ACCEPTING THIS AGREEMENT, EITHER BY REGISTERING ON www.365andUP.com OR BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM OR ANY OTHER DOCUMENTATION THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
IF YOU REGISTER FOR A FREE PLAN OR TRIAL FOR OUR SERVICES, THE APPLICABLE PROVISIONS OF THIS AGREEMENT WILL ALSO GOVERN THAT SAME.
The following definitions and rules of interpretation apply in this Clause.
“Agreement” means this Terms of service.
“Term” means the duration of the provision of the Services.
“Representatives” means either Party’s employees, officers, representatives, advisers or subcontractors involved in the provision or receipt of the Services.
“Permitted User” means an employee or Contractor of Customer or its Affiliate who is authorized to access the Service.
“Services” means 365andUP Inc.’s proprietary software-as-a-service solution(s), including the Dashboard, 365andUP application programming interfaces (APIs), 365andUP Code and 365andUP Apps, as described in the applicable Order Form.
“Third-Party Platform” means any software, software-as-a-service, data sources or other products or services not provided by 365andUP that are integrated with Services as described in the DPA documentation.
“We”, “Us” or “Our” means 365andUP Inc., USA.
“You” or “Your” means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company.
“Account” means 365andUP account created by the You.
“User” means an individual who is authorized by You to use a Service, for whom You have purchased a subscription (or in the case of any Services provided by Us without charge, for whom a Service has been provisioned), and to whom You (or, when applicable, Us at Your request) have supplied a user identification and password (for Services utilizing authentication). Users may include, for example, Your employees, consultants, contractors and agents, and third parties with which You transact business.
“Security Features” means any security feature, including any encryption, pseudonymisation, key, PIN, password, token or smartcard.
“Standard Contractual Clauses” means the contractual clauses dealing with the transfer of Personal Data outside the EEA, which have been approved by (i) the European Commission under Data Protection Legislation, or (ii) by the ODPC or an equivalent competent authority under Data Protection Legislation.
By agreeing to these Terms of Service, you represent that you are at least the age of majority in your state or province of residence, or that you are the age of majority in your state or province of residence and you have given us your consent to allow any of your minor dependents to use this site.
You may not use our products for any illegal or unauthorized purpose nor may you, in the use of the Service, violate any laws in your jurisdiction (including but not limited to copyright laws).
You must not transmit any worms or viruses or any code of a destructive nature.
A breach or violation of any of the Terms will result in an immediate termination of your Services.
We reserve the right to refuse service to anyone for a valid reason at any time.
You understand that your content (not including credit card information), may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. Credit card information is always encrypted during transfer over networks.
You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service or any contact on the website or product through which the service is provided, without express permission written by us.
The headings used in this agreement are included for convenience only and will not limit or otherwise affect these Terms.
Use of Services & Content
Unless otherwise provided, (a) Services and access to content are purchased as subscriptions, (b) subscriptions may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions.
Services and content are subject to usage limits, including, for example, the quantities. Unless otherwise specified, (a) a quantity refers to Users, and the Service or content may not be accessed by more than that number of Users, (b) a User’s password may not be shared with any other individual, and (c) except otherwise provided for, a User identification may only be reassigned to a new individual replacing one who will no longer use the Service or content. If You exceed a contractual usage limit, We may work with You to seek to reduce Your usage so that it conforms to that limit. If, notwithstanding Our efforts, You are unable or unwilling to abide by a contractual usage limit, You will subscribe for additional quantities of the applicable Services or content promptly upon Our request, and/or pay any invoice for excess usage.
You will (a) be responsible for Users’ compliance with this Agreement, (b) be responsible for the accuracy, quality and legality of Your Data (as defined below) and the means by which You acquired Your Data, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and content, and notify Us promptly of any such unauthorized access or use, (d) use Services and content only in accordance with this Agreement and applicable laws and government regulations.
You will not (a) make any Service or content available to, or use any Service or content for the benefit of, anyone other than You or Users, unless expressly permitted by us, (b) sell, resell, license, sublicense, distribute, make available, rent or lease any Service or content, or include any Service or content in a service bureau or outsourcing offering, (c) use our Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use our Service to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorized access to any Service or content or its related systems or networks, (g) permit direct or indirect access to or use of any Service or content in a way that circumvents a contractual usage limit, or use any of Our Services to access or use any of Our intellectual property except as permitted under this Agreement, (h) copy a Service or any part, feature, function or user interface thereof, (i) copy content except as permitted herein, (j) frame or mirror any part of any Service or content, other than framing on Your own intranets or otherwise for Your own internal business purposes or as permitted under this Agreement, (k) access any Service or content in order to build a competitive product or service or to benchmark with any product or service, or (l) reverse engineer any Service. Any use of the Services in breach of this Agreement, by You or Users that in Our judgment threatens the security, integrity or availability of Our services, may result in Our immediate suspension of the Services, however We will use commercially reasonable efforts under the circumstances to provide You with notice and an opportunity to remedy such violation or threat prior to such suspension.
Following activity is prohibited on our platform and we shall actively suspend accounts if they are found:
- Downloading or installing software applications not intended for software testing e.g., bitcoin mining, gaming servers and other illegitimate activities
- Accessing pornographic content
- Indulging in any unlawful activities
Intellectual Property Rights
Neither these Terms nor use of the Services grants you ownership in the Services or the Content you access through the Services (other than your Content). Nothing on the Website should be construed as granting any license or right to use any trademarks, trade names, logos, or any other brand element displayed on the Website, unless you have been granted explicit written permission to use the same.
Third Party Products/Services
If you enable any third-party applications for use in conjunction with our Services, you acknowledge that 365andUP Inc. may allow such providers, access to your data. 365andUP Inc. will not sell your data to any third-party applications.
365andUP Inc., will no longer be accountable for any disclosure, amendment or deletion of your data, as a result of such access by third-party applications, thereupon.
Confidentiality & Privacy
Neither party will use or disclose the other party’s Confidential Information without the other’s prior written consent except for the purpose of performing its obligations under this Agreement or if required by law, regulation or court order; in which case, the party being compelled to disclose Confidential Information will give the other party as much notice as is reasonably practicable prior to disclosing the Confidential Information.
We acknowledge that all intellectual property rights in Your Data are and will remain the property of You and/or the relevant Data Subjects, as the case may be; and that We shall have no rights in or to Your Data other than the right to Process it for the purposes set out in this Agreement. You reserve the right to access, modify, delete and transfer Your Data. Please refer to our DPA document to learn more about our Commitment towards your data.
We have put the pricing plans on the website, which may be changed from time to time.
Our charges for quarterly/annual plans are posted on our Website and may be changed from time to time. If any part of a month is included in the Term, then payment is due for the full month. Payments are due on the same or closest date to the day you made your first payment (the “Pay Date”). If you go over your limit and reach another pricing level, then you’ll have to pay at the higher level on or before the next pay date. If the Term ends before that payment is due, you’ll still be required to make one payment at the higher level.
As long as you’re a Member or have an outstanding balance with us, you’ll provide us with valid credit card information and authorize us to deduct the subscription charges against that credit card. You will replace the information for any credit card that expires with information for a valid one. Anyone using a credit card represents and warrants that they are authorized to use that credit card and that any and all charges may be billed to that credit card and won’t be rejected. If we’re unable to process your credit card transaction, we’ll try to contact you by email and move the account to FREE plan when there is no action.
You will not be provided a refund if you terminate your account in the middle of a subscription period. However, you are eligible for a pro rata refund of the subscription charges for the remainder of the subscription term, if you terminate your account as a result of violation of these Terms for any of the following reasons:
(a) we have materially breached these Terms and failed to resolve said breach within 30 days after you have notified us in writing;
(b) a refund is required by law; or
(c) we solely determine a refund is appropriate.
We may change our fees at any time by posting a new pricing structure on our website and will intimate you by sending you a notification email, provided you have not opted-out of our email communication.
Cancellation/Termination of Services
The obligations and liabilities of the parties incurred prior to the termination date shall survive the termination of this agreement for all purposes.
These Terms of Service are effective unless and until terminated by either Parties. You may terminate these Terms of Service at any time by notifying us that you no longer wish to use our Services, or when you cease using our site.
If in our sole judgment you fail, or we suspect that you have failed, to comply with any term or provision of these Terms of Service, we also may terminate this agreement at any time and you will remain liable for all amounts due, up to and including the date of termination; and/or accordingly may deny you access to our Services (or any part thereof).
Disclaimer of Warranties
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS AGREEMENT, 365andUP INC., MAKES NO OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND NON-INFRINGEMENT.
Limitation of Liability
To the extent permitted by applicable law, 365andUP Inc., will not be liable for your lost revenues or indirect, special, incidental, consequential, exemplary, or punitive damages, even if 365andUP Inc., or its subsidiaries and affiliates have been advised of, knew, or should have known that such damages were possible, and even if direct damages do not satisfy a remedy.
If you suffer loss or damage as a result of 365andUP Inc.’s negligence or failure to comply with these Terms, any claim by You arising from 365andUP Inc.’s negligence or failure will be limited in respect of any one incident, or series of connected incidents, to the Subscription Fees paid by you in the previous 12 months.
If you are not satisfied with the Service, your only remedy will be to terminate your agreement at any time by notifying us that you no longer wish to use our Services.
Indemnification by Us:
Subject to Your compliance with these Terms, We will indemnify and hold You harmless, from and against any claim brought against You by a third party alleging that the Service(s) You subscribed to infringes or misappropriates such third party’s valid patent, copyright, or trademark (an “IP Claim”). We shall, at Our expense, defend such IP Claim and pay damages finally awarded against You in connection therewith, including the reasonable fees and expenses of the attorneys, provided that (a) You promptly notify Us of the threat or notice of such IP Claim; (b) We have or will have the sole and exclusive control and authority to select defense attorneys, defend and/or settle any such IP Claim; and (c) You fully cooperate with Us in connection therewith. We will have no liability or obligation with respect to any IP Claim if such claim is caused in whole or in part by (i) compliance with designs, data, instructions or specifications provided by You; (ii) modification of the Service(s) by anyone other than Us; or (iii) the combination, operation or use of the Service(s) with other hardware or software where the Service(s) would not by themselves be infringing.The above sections state our sole, exclusive and entire liability to You and constitute Your sole remedy with respect to an IP Claim brought by reason of access to or use of the Service(s) by You.
Indemnification by You:
To the extent permitted by law, You agree to indemnify, defend and hold harmless 365andUP Inc. and our parent, subsidiaries, affiliates, partners, officers, directors, agents, contractors, licensors, service providers, subcontractors, suppliers, interns and employees, from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs made by any third-party ) arising out of any breach of these Terms of Service or the documents they incorporate by reference, or your violation of any law or the rights of a third-party.
In the event that any provision of these Terms of Service is determined to be unlawful, void or unenforceable, such provision shall nonetheless be enforceable to the fullest extent permitted by applicable law, and the unenforceable portion shall be deemed to be severed from these Terms of Service, such determination shall not affect the validity and enforceability of any other remaining provisions.
Relationship of Parties
The parties hereto are independent contractors. Nothing in this Agreement will be construed to create a partnership, joint venture, franchise, fiduciary, employment or agency relationship between the parties.
Changes to Terms of Service
You can review the most current version of the Terms of Service at any time at this page.
We reserve the right, at our sole discretion, to update, change or replace any part of these Terms of Service by posting updates and changes to our website. We will notify any changes in the Terms of Service by sending an email to the email address you had given account creation. In case you have opted-out of our email notifications, you are liable to check this page on a periodic basis to know the changes. Your continued use of or access to our website or the Services following the posting of any changes to these Terms of Service constitutes acceptance of those changes.
These Terms of Service and any policies or operating rules posted by us on this site or in respect to The Service constitutes the entire agreement and understanding between you and us and govern your use of the Service, superseding any prior or contemporaneous agreements, communications and proposals, whether oral or written, between you and us (including, but not limited to, any prior versions of the Terms of Service).
Any ambiguities in the interpretation of these Terms of Service shall not be construed against the drafting party.
The failure of us to exercise or enforce any right or provision of these Terms of Service shall not constitute a waiver of such right or provision.
Governing Law & Jurisdiction
- In the event of any conflicts between foreign law, rules, and regulations, the governing law shall prevail
- Each party agrees to submit to the exclusive and personal jurisdiction of the Courts located in Delaware, USA
- The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act do not apply to this Agreement.
Any notice under this Agreement or related to Our services should be addressed to:
340 S LEMON AVE #3809
WALNUT, CA 91789
All notices related to this Agreement will be in writing and will be effective upon our receipt of your email to privacy@365andUP.com.
Billing-related notices to you will be addressed to the relevant billing contact designated by you. All other notices to you will be addressed to the relevant person designated by you.
Contact 365andUP Inc.
Should you have questions about the Terms of Service, please send us an email to privacy@365andUP.com.