Last Updated: March 7, 2016
PLEASE READ THIS MASTER SERVICES AGREEMENT (“AGREEMENT”) CAREFULLY BEFORE USING THE APPLICATION SERVICES OFFERED BY FUNCTIONIZE, INC. (“Functionize”). THE TERMS OF THIS AGREEMENT GOVERN YOUR USE OF FUNCTIONIZE’S APPLICATION SERVICES. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE FUNCTIONIZE’S APPLICATION SERVICES. BY ACCEPTING THESE TERMS BELOW, OR BY USING FUNCTIONIZE’S APPLICATION SERVICES IN ANY MANNER, YOU AND THE ENTITY YOU REPRESENT (“CUSTOMER”) AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS. This Agreement is entered into as of the date you accept these terms or use the Functionize Application Services (“Effective Date”).
LICENSE TO USE THE SERVICES
Subject to the terms set forth in this Agreement, Functionize grants to Customer a limited, non-exclusive, non-transferable license to use the Application Services (as defined herein) for Customer’s internal use and not for resale or further distribution. Customer’s right to use the Application Services is limited by all terms and conditions set forth in this Agreement. Except for this license granted to Customer, Functionize and its licensors retain all right, title and interest in and to the Application Services, including all related intellectual property rights. The Application Services are protected by applicable intellectual property laws, including United States copyright law and international treaties. “Application Services” shall mean the online, web-based applications ordered by Customer through an Order Form and provided by Functionize via https://www.functionize.com or other designated websites or IP addresses as communicated to Customer by Functionize. An “Order Form” shall mean either (a) a document signed by both parties identifying the Application Services purchased by Customer and made available by Functionize pursuant to this Agreement or (b) Customer’s selection and acceptance of a specific pricing tier via the online purchasing process at www.functionize.com.
Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, Customer will not, and will not permit or authorize any third party to: (i) reproduce, modify, translate, enhance, decompile, disassemble, reverse engineer or create derivative works of any of the Application Services; (ii) rent, lease or sublicense access to any of the Application Services; or (iii) circumvent or disable any security or technological features or measures of the Application Services.
Fees paid hereunder are non-refundable. Unless otherwise set forth in an Order Form, fees for the first month of the Application Services are prorated based on the calendar days remaining in the particular month at the pricing tier selected by Customer provided that in the event Customer’s usage of the Application Services exceeds the pricing tier selected by Customer, fees are adjusted as follows: for the previous month, Functionize will charge the lower of any overage cost for usage in excess of the pricing tier Customer selected versus the retroactive upgrade cost to the next higher tier. The subsequent month is charged at the then-current pricing tier.
Unless a subscription term of a longer duration is indicated in the applicable Order Form (a “Subscription Term”), the Application Services will automatically renew on a annual basis unless and until Customer terminates the Application Services by providing written notice to Functionize (email is acceptable) or selecting the cancellation option on the dashboard of the Application Services, and such termination will be effective as of the last day of the calendar month during which such termination notice is received. Any Subscription Term specified in an Order Form will automatically renew for additional terms of twelve months each unless and until either party provides the other with written notice of termination at least thirty (30) days in advance of the last day of the then-current Subscription Term.
Unless otherwise specified in the applicable Order Form, fees due hereunder will be billed to Customer’s credit card and Customer authorizes the card issuer to pay all such amounts and authorizes Functionize (or its billing agent) to charge the credit card account until Customer or Functionize cancels or terminates the Application Services provided that if payment is not received from the credit card issuer, Customer agrees to pay all amounts due upon demand. Customer must provide current, complete and accurate billing and credit card information. Customer agrees to pay all costs of collection, including attorney’s fees and costs, on any outstanding balance. In certain instances, the issuer of the credit card may charge a foreign transaction fee or related charges, which Customer shall be responsible to pay.
Customer will be responsible for payment of any applicable sales, use and other taxes and all applicable export and import fees, customs duties and similar charges (other than taxes based on Functionize’s income), and any related penalties and interest for the grant of access rights hereunder, or the delivery of related services. Customer will make all required payments to Functionize free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments to Functionize will be Customer’s sole responsibility, and Customer will, upon Functionize’s request, provide Functionize with official receipts issued by appropriate taxing authorities, or such other evidence as Functionize may reasonably request, to establish that such taxes have been paid.
ACCESS TO THE SERVICES
Functionize does not provide the equipment required to access the Application Services. Customer is responsible for all fees charged by third parties related to Customer’s access and use of the Application Services (e.g., charges by Internet service providers).
Functionize reserves the right to modify or discontinue, temporarily or permanently, all or any portion of the Application Services with notice. Functionize will not be liable to Customer or to any third party for any modification, suspension, or discontinuance of all or any portion of the Application Services.
Functionize also reserves the right, in its sole discretion, to reject, refuse to post, or remove any material that Customer posts or submits for posting, and to restrict, suspend, or terminate access to the Application Services at any time, for any or no reason, with or without prior notice, and without liability.
Customer must comply with all applicable laws when using the Application Services.Except as may be expressly permitted by applicable law, or as Functionize may authorize expressly in writing, Customer will not, and will not permit anyone else to: (i) store, copy, modify, distribute, or resell any of the information; audio, visual, and audiovisual works, or other content made available on the Application Services, or compile or collect any such content as part of a database or other work; (ii) use any automated tool (e.g., robots, spiders) to access or use the Application Services; (iii) rent, lease, or sublicense Customer’s access to the Application Services to another person; (iv) use any Application Services for any purpose except for Customer’s own internal use; (v) circumvent or disable any digital rights management, usage rules, or other security features of the Application Services; (vi) use the Application Services in a manner that overburdens, or that threatens the integrity, performance, or availability of, the Application Services; or (vii) remove, alter, or obscure any proprietary notices (including copyright and trademark notices) on any portion of the Application Services.
Customer agrees to comply with all applicable privacy and data protection regulations. Further, Customer agrees to not use the Application Services to send Functionize sensitive information where unauthorized disclosure could cause material, severe, or catastrophic harm or impact to Functionize, any data subjects or third parties. Sensitive Information includes:
- Passwords, authentication/authorization credentials
- Information under regulatory or contractual handling requirements (e.g., PCI, HIPAA, and state and federal data security laws) including:
- Credit card information including credit card numbers, CIV numbers (three digit codes for Visa and MasterCard, four digit code for American Express) and magnetic stripe information
- Social Security Numbers
- Drivers License Numbers
- Passport Numbers
- Government Issued Identification Numbers
- Financial Account Information
- Health data
- Biometric data
- Personally identifiable information knowingly collected from children under the age of 13 or from online services directed toward children, and
- Real time geolocation data which can identify an individual.
- Business secrets deemed highly confidential (e.g., highly-confidential business strategies and communications, sensitive attorney-client privileged and confidential communications).
Functionize collects, stores, and uses Customer Content to maintain and improve the Application Services. Functionize may also use Customer Content in an aggregated form for Functionize’s own purposes. The Application Services transfer data to servers that store Customer Content in the U.S. and outside the U.S. Functionize only shares User information with others under special circumstances as follows:
- With third parties who work on Functionize’s behalf to provide the Application Services
- To comply with laws or to respond to lawful requests and legal process (provided that Functionize will endeavor to notify Customer if Functionize has received a lawful request for Customer’s information)
- In an emergency, including to protect the personal safety of any person
- For the purposes of a business deal (or negotiation of a business deal) involving sale or transfer of all or a part of Functionize’s business or assets (business deals may include, for example, any merger, financing, acquisition, divestiture, or bankruptcy transaction or proceeding). Functionize provides Customer with access to Customer Content and ability to delete any Customer Content. Functionize also takes commercially reasonable steps to safeguard Customer Content.
RESTRICTED AREAS OF THE SERVICES
Certain parts of the Application Services, including account management features, may be password-restricted to registered users or other authorized persons (“Password-Protected Areas”). If Customer is authorized to gain access to any Password-Protected Areas, Customer agrees that Customer is entirely responsible for maintaining the confidentiality of Customer’s password, and agrees to notify Functionize if the password is lost, stolen, disclosed to an unauthorized third party, or otherwise may have been compromised. Customer agrees that Customer is entirely responsible for any and all activities that occur under Customer’s account, whether or not Customer undertakes such activities. Customer agrees to immediately notify Functionize of any unauthorized use of Customer’s account or any other breach of security in relation to Customer’s password or the Application Services that is known to Customer.
LINKS AND THIRD PARTY CONTENT
The Application Services may display, or contain links to, third party products, services, and websites. Any opinions, advice, statements, services, offers, or other information that constitutes part of the content expressed, authored, or made available by other users or other third parties on the Application Services, or which is accessible through or may be located using the Application Services (collectively, “Third Party Content”) are those of the respective authors or producers and not of Functionize or its shareholders, directors, officers, employees, agents, or representatives.
Functionize does not control Third Party Content and does not guarantee the accuracy, integrity or quality of such Third Party Content. Functionize is not responsible for the performance of, does not endorse, and is not responsible or liable for, any Third Party Content or any information or materials advertised in any Third Party Content. By using the Application Services, Customer may be exposed to content that is offensive, indecent, or objectionable. Functionize is not be responsible or liable, directly or indirectly, for any damage or loss caused to Customer by Customer’s use of or reliance on any goods, services, or information available on or through any third party service or Third Party Content. It is Customer’s responsibility to evaluate the information, opinion, advice, or other content available on and through the Application Services.
Customer will not use the Application Services to: (i) upload, post, email, or otherwise transmit any content that contains unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable; (ii) harm Functionize or third parties in any way; (iii) impersonate any person or entity, or otherwise misrepresent Customer’s affiliation with a person or entity; (iv) upload, post, email, or otherwise transmit any content that Customer does not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); (v) upload, post, email or otherwise transmit any content that infringes any patent, trademark, trade secret, copyright, or other right of any party; (vi) upload, post, email, or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other forms of solicitation; (vii) upload, post, email, or otherwise transmit any material that contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment; (viii) interfere with or disrupt the Application Services or servers or networks connected to the Application Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Application Services; (ix) intentionally or unintentionally violate any applicable local, state, national or international law or regulation; (x) “stalk” or otherwise harass another; or (xi) collect or store personal data about other users.
Customer is solely responsible for any content and other material that Customer submits, publishes, transmits, or displays on, through, or with the Application Services.
“Functionize,” the Functionize logo, and any other product or service name or slogan displayed on the Application Services are trademarks of Functionize, Inc. and its suppliers or licensors, and may not be copied, imitated or used, in whole or in part, without the prior written permission of Functionize or the applicable trademark holder. Customer shall not use any metatags or any other “hidden text” utilizing “Functionize” or any other name, trademark or product or service name of Functionize without prior written permission. In addition, the look and feel of the Application Services, including all page headers, custom graphics, button icons and scripts, is the service mark, trademark and/or trade dress of Functionize and may not be copied, imitated or used, in whole or in part, without prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned in the Application Services are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier, or otherwise does not constitute or imply endorsement, sponsorship, or recommendation thereof by Functionize.
CONFIDENTIAL INFORMATION; FEEDBACK.
“Confidential Information” shall mean all written or oral information, disclosed by either party to the other, related to the operations of either party or a third party that has been identified as confidential or that by the nature of the circumstances surrounding disclosure ought reasonably to be treated as confidential. The parties acknowledge that during the performance of this Agreement, each party will have access to certain of the other party’s Confidential Information or Confidential Information of third parties that the disclosing party is required to maintain as confidential. Both parties agree that all items of Confidential Information are proprietary to the disclosing party or such third party, as applicable, and will remain the sole property of the disclosing party or such third party.
Each party agrees as follows: (a) to use Confidential Information disclosed by the other party only for the purposes described herein; (b) that such party will not reproduce Confidential Information disclosed by the other party, and will hold in confidence and protect such Confidential Information from dissemination to, and use by, any third party; (c) that neither party will create any derivative work from Confidential Information disclosed to such party by the other party; (d) to restrict access to the Confidential Information disclosed by the other party to such of its personnel, agents, and/or consultants, if any, who have a need to have access and who have been advised of and have agreed in writing to treat such information in accordance with the terms of this Agreement; and (e) to the extent practicable, return or destroy all Confidential Information disclosed by the other party that is in its possession upon termination or expiration of this Agreement.
Notwithstanding the foregoing, the above provisions will not apply to Confidential Information that (a) is publicly available or in the public domain at the time disclosed; (b) is or becomes publicly available or enters the public domain through no fault of the recipient; (c) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (d) is already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (e) is independently developed by the recipient; or (f) is approved for release or disclosure by the disclosing party without restriction. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (x) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that, to the extent permitted by law, the party making the disclosure pursuant to the order shall first have given written notice to the other party and made a reasonable effort to obtain a protective order; or (y) to establish a party’s rights under this Agreement, including to make such court filings as it may be required to do.
Customer may provide Functionize with feedback, suggestions, and ideas, if Customer chooses, about the Application Services (“Feedback”). Customer agrees that Functionize may, in its sole discretion, use the Feedback Customer provides in any way, including in future enhancements and modifications to the Application Services. Customer hereby grants to Functionize and its assigns a perpetual, worldwide, fully transferable, sublicensable, fully paid-up, irrevocable, royalty free license to use, reproduce, modify, create derivative works from, distribute, and display the Feedback in any manner any for any purpose, without in any media, software, or technology of any kind now existing or developed in the future, without any obligation to provide attribution or compensation to Customer or any third party.
DISCLAIMER OF WARRANTIES
USE OF THE APPLICATION SERVICES IS AT CUSTOMER’S SOLE RISK. THE APPLICATION SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. Functionize AND ITS SUPPLIERS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED INDEMNITIES AND WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. Functionize DOES NOT GUARANTEE THE ACCURACY, COMPLETENESS, OR USEFULNESS OF THE APPLICATION SERVICES, AND CUSTOMER RELIES ON THE APPLICATION SERVICES AT CUSTOMER’S OWN RISK. ANY MATERIAL THAT CUSTOMER ACCESSES OR OBTAINS THROUGH THE APPLICATION SERVICES, INCLUDING CUSTOMER CONTENT, IS DONE AT CUSTOMER’S OWN DISCRETION AND RISK AND CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO CUSTOMER’S COMPUTER OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY MATERIAL THROUGH THE APPLICATION SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM Functionize OR THROUGH OR FROM THE APPLICATION SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
LIMITATION OF LIABILITY
Functionize AND ITS SUPPLIERS AND LICENSORS WILL 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, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF Functionize HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES), RESULTING FROM CUSTOMER’S USE OF THE APPLICATION SERVICES. UNDER NO CIRCUMSTANCES WILL THE TOTAL LIABILITY OF Functionize AND ITS SUPPLIERS AND LICENSORS OF ALL KINDS ARISING OUT OF OR RELATED TO CUSTOMER’S USE OF THE APPLICATION SERVICES (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, NEGLIGENCE OR OTHERWISE, EXCEED THE AMOUNTS, IF ANY, THAT CUSTOMER HAS PAID TO Functionize FOR CUSTOMER’S USE OF THE APPLICATION SERVICES FOR THE TWELVE (12) MONTH PERIOD PRIOR TO THE CLAIM.
Customer will defend, indemnify and hold harmless Functionize, its suppliers and licensors, and its respective subsidiaries, affiliates, officers, agents, employees, representatives, and assigns, from any costs, damages, expenses, and liability caused by Customer’s use of the Application Services, Customer’s violation of this Agreement, Customer Content, or Customer’s violation of any rights of a third party through use of the Application Services.
Enforcement of any dispute relating to this Agreement will be governed by the laws of the State of California, excluding its conflict and choice of law principles. For parties residing in the United States, the exclusive jurisdiction and venue for any claims arising out of or related to this Agreement or Customer’s use of the Application Services is in the state and federal courts located in City and County of San Francisco, California, and Customer irrevocably agrees to submit to the jurisdiction of such courts.
Functionize’s failure to enforce any right or provision in this Agreement will not constitute a waiver of such right or provision unless acknowledged and agreed to by Functionize in writing. In the event that a court of competent jurisdiction finds any provision of this Agreement to be illegal, invalid, or unenforceable, the remaining provisions will remain in full force and effect.
The terms and conditions which by their nature are intended to survive termination of this Agreement shall survive, including Restrictions, Disclaimer of Warranties, Feedback, Indemnity, and Limitation of Liability. This Agreement contains the entire understanding of the parties on the subject matter hereof.
If you have any questions or concerns about our Services or these Terms, you may contact us at:
156 2nd Street
San Francisco, CA 94105
or by email at email@example.com.