Wecountable Terms of Service Agreement
Revision Date: April 31, 2016
By using the Wecountable software (the "Service"), you agree to be bound by the terms and conditions of the Wecountable Terms Of Service Agreement ("Agreement"), and you agree that it is enforceable as if it were a written negotiated agreement signed by 430 Labs LLC dba Wecountable ("Wecountable") and You ("Customer").
Please read carefully before using the Service. By accessing Wecountable.com, you are accepting the terms and conditions of this Agreement.
If you are signing up for the Service on behalf of a company, you represent that you are duly authorized to represent the company and accept the terms and conditions of the Agreement on behalf of the company. By your acceptance, a binding contract is then formed between Wecountable and the company in accordance with the terms and conditions of this Agreement.
If you are entering into this Agreement on behalf of your company, the terms "You" and "Your" in this Agreement means your company and all of its employees. If you are entering this Agreement on your own behalf, you agree that you are personally bound by this Agreement and in such case, the term "You" and "Your" in this Agreement mean you.
If the company you represent, or you, do not agree to this Agreement, do not use the Service.
1. Term of Agreement and Renewal
1.1 The terms of this Agreement commence on the date You accept it and continues until all subscriptions granted in accordance with this Agreement have expired or been terminated. If You elect to use the Services for a free trial period and do not purchase a subscription before the end of that period, this Agreement will terminate at the end of the free trial period. At times, to comply with legal requirements and for other reasons, these Terms may be revised or modified. Continued use of the Service after any such changes shall constitute your consent to such changes. Unless explicitly stated otherwise, any new features that enhance or augment the current Service shall be subject to the Terms. You can review the most current version of the Terms at any time at: Wecountable.com/terms_of_service
1.2 User subscriptions purchased by You commence on the start date specified upon payment and continue for the subscription term specified therein. Except as otherwise specified, all User subscriptions shall automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term.
1.3 Wecountable may, in its sole discretion, revise or modify these TOS at any time. Such changes, modifications, additions or deletions shall be effective immediately upon notice, which may be given by any means including, but not limited to, posting on the Wecountable website, or by electronic or conventional mail, or by any other means by which Customer obtains notice thereof.
2. Termination and Expiration
2.1 Upon any termination for cause by You, We shall refund You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. However, no refund will be granted for the then current month.
2.2 Upon request by You made within 30 days after the effective date of termination, We will make available to You for download a file of Your Data in comma separated value (.csv) format along with attachments in their native format. After such 30-day period, we shall have no obligation to maintain or provide any of Your Data and shall thereafter, unless legally prohibited, delete all of Your Data in Our systems or otherwise in Our possession or under Our control.
2.3 You are solely responsible for the proper cancellation of your account. You may cancel your account at any time by emailing support (@) Wecountable.com. There will be no refund if you cancel the Service before the end of your current, paid-up month, and you will not be charged thereafter. There is no cancellation fee. Either party may terminate this Agreement at any time in the event of a material breach that is not cured within 30 days written notice.
2.4 You agree that Wecountable may downgrade, terminate or suspend your access to Wecountable without prior notice and without liability if such termination or suspension is based on (a) Wecountable's good faith belief that you have violated any of the terms and conditions of this Agreement, (b) one–hundred eighty (180) days of inactivity with respect to the Wecountable service or (c) nonpayment of any fees owed to Wecountable. If your account type is free, your account may be terminated upon sixty (60) days of inactivity.
3. Software Usage Rights
3.1 For the term of the Agreement, Wecountable grants to you a limited, non-transferable, non-exclusive right to access and use its proprietary, commercially available, hosted software products and related documentation ("Software") via a web browser for Your internal business use. The Software is made available to You as a hosted service ("Service"). Wecountable hosts and retains physical control over the Software and only makes it available for access, and use by You over the Internet through a Web-browser (e.g., Internet Explorer). Nothing in this Agreement obligates Wecountable to deliver or make available any copies of computer programs or code from the Software to You, whether in object code or source code form. You agree that the Wecountable Service may be made available in free or paid versions at different levels, and that not all features and functionality of the Wecountable service may be available in each version or level, which may be changed from time to time. You agree that you will use the Service in compliance with all applicable local, state, national, and international laws, rules and regulations. You shall not, shall not agree to, and shall not authorize or encourage any third party to:
- use the Service to upload, transmit or otherwise distribute any content that is unlawful, defamatory, harassing, abusive, fraudulent, obscene, contains viruses, or is otherwise objectionable as reasonably determined by Wecountable.
- use the Service for any fraudulent or inappropriate purpose;
- attempt to decipher, decompile, hack, delete, augment, alter, disassemble or reverse engineer any of the software comprising or in any way used or downloaded from the Wecountable website.
- resell, duplicate, make derivative works of, reproduce or exploit any part of the Service without the express written permission of Wecountable.
- use any robot, spider, other automated device, or manual process to monitor or copy any content from the Service.
- rent, lease, distribute, or resell the Software, or use the Software for developing a competitive solution (or contract with a third party to do so), or remove or alter any of the logos, trademark, patent or copyright notices, confidentiality or proprietary legends or other notices or markings that are on or in the Software.
- publish any material on any Wecountable websites that contain sexually related text, photographs or other content, or content that is defamatory, obscene, indecent, threatening, abusive or hateful.
3.2 We shall: (i) provide Our basic support for the Purchased Services to You at no additional charge, and/or upgraded support if purchased separately, (ii) use commercially reasonable efforts to make the Purchased Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (which We shall schedule to the extent practicable during the weekend hours from 6:00 p.m. Friday to 3:00 a.m. Monday Pacific Time), or (b) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Our employees), Internet service provider failures or delays, or denial of service attacks, and (iii) provide the Purchased Services only in accordance with applicable laws and government regulations.
3.3 We shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data. We shall not (a) disclose Your Data except as compelled by law or as expressly permitted in writing by You, or (b) access Your Data except to provide the Services and prevent or address service or technical problems, or at Your request in connection with customer support matters.
3.4 If you integrate with Wecountable using our API, you must use efficient programming, which will not cause too many requests to be made in too short a period. We reserve the right to throttle your API connections, or suspend or terminate your Wecountable account.
4. Payment Terms
4.1 Monthly Terms: Your Services month-to-month subscription renews automatically each month until cancelled. Your credit card will be charged each month and you will receive a receipt via email when your card has been charged. If your card cannot be charged, your access to Services may be suspended and you will need to update your card information in order to resume use. You may cancel at any time by calling Wecountable or emailing billing (@) Wecountable.com. There will be no refunds or credits for partial months of service, upgrade/downgrade accounts, or for months unused with an open account.
4.2 Annual Terms: Yearly subscription pricing requires a 1 year minimum commitment. If you cancel your subscription, or your subscription is suspended for non-payment, before the end of the 1 year commitment period, you will no longer qualify for yearly subscription pricing and you will be charged the difference between the monthly and yearly commitment pricing for the number of months your subscription was active. Upon the anniversary of your one-year subscription, your subscription will automatically renew for subsequent one-year periods, unless you cancel your subscription prior to renewal.
4.3 All fees are exclusive of all taxes or duties imposed by governing authorities. You alone are responsible for payment of all such taxes or duties.
4.4 Wecountable may at any time, upon notice required by applicable law, change the price of your subscription or any part thereof, or institute new charges or fees. Price changes and institution of new charges implemented during your one year subscription period will come into effect for any subsequent one year subscription periods and to all new subscribers after the effective date of the change. If you do not agree to any such price changes, then you must cancel your subscription and stop using the software prior to the commencement of the renewal subscription period for which the price change applies.
5. Intellectual Property Rights
5.1 You acknowledge that Wecountable owns all right, title and interest in and to the Service, including without limitation all intellectual property rights, and such rights are protected by U.S. and international intellectual property laws. You agree that you will not copy, reproduce, alter, modify, or create derivative works from the Service. You also agree that you will not use any robot, spider, other automated device, or manual process to monitor or copy any content from the Service. Wecountable claims no intellectual property rights over the material you provide to the Service.
5.2 You retain all right, title and interest to any and all information provided, inputted or uploaded to Wecountable by You, or by Wecountable on Your behalf. Wecountable has no right, title or interest in any personally identifiable information related to your data. Wecountable shall retain all right, title and interest in and to the Software, Services, the documentation for the Software, and all modifications and/or enhancements to the Software, regardless of the source of inspiration for any such enhancement or modification and regardless of whether You have provided input regarding such modifications and/or enhancements. You acknowledge that Wecountable will retain all right, title and interest to transactional and performance data related to use of the Software which Wecountable may collect, use and disclose for its business purposes (including software use optimization and product marketing) provided that such use does not reveal Your identity, any of Your Confidential Information or any personally identifiable candidate information that belongs to You. Custom developed documents, designs, computer programs, computer documentation and other tangible materials authored or prepared for You by Wecountable ("Deliverables") as required by a statement of work are hereby licensed, solely for Your internal use, for the term of this Agreement. Wecountable retains ownership and may reuse any Deliverables, provided that such use does not reveal Your identity or Your Confidential Information.
6.1 If You become a subscriber of the Service, you agree that Wecountable can disclose the fact that you are a paying customer. During the term of this Agreement, and unless otherwise set forth, You grant Wecountable the right to reference You, along with Your logo, in marketing materials and on Wecountable's public web site until such time as Your use of the Service is discontinued.
7. Warranties and Liability
7.1 Wecountable represents, warrants, and covenants as follows: (i)Wecountable possesses all rights necessary to grant to You the rights set forth in this Agreement; (ii)Wecountable incorporates commercially reasonable measures to screen for time-bombs, viruses, technically limiting devices, and/or technically limiting code; (iii)the Software will perform substantially in accordance with the technical requirements documents that are generally provided by Wecountable in connection with the Software ("Documentation"); and (iv)Consulting Services will be performed in a professional, workmanlike manner, with the degree of skill and care that is required by sound professional procedures and practices.
7.2 Wecountable HEREBY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SOFTWARE, DOCUMENTATION, DELIVERABLES AND OTHER MATERIALS AND/OR SERVICES. Wecountable DOES NOT WARRANT THAT OPERATION OF THE SOFTWARE IS ERROR-FREE OR THAT ITS OPERATION WILL BE UNINTERRUPTED.
7.3 In no event will either party be liable for any indirect, consequential, special, punitive, or exemplary damages arising out of this Agreement. The aggregate liability of either party to the other with respect to this Agreement IS limited, to the extent possible under applicable law, to the fees collected by Wecountable from You pursuant to this Agreement in the six months preceding the imposition of liability.
8. Data Privacy Indemnity. Both parties agree as follows in the event of a security breach:
8.1 External Breach: In the event of a security breach by anyone other than Your employee or Third-Party Contractor, Wecountable will immediately: (i)initiate remedial actions that are consistent with industry standards; (ii)notify You of the security breach, its nature and scope, the nature and scope of remedial actions Wecountable will undertake, and the timeline within which Wecountable expects to remedy the breach.
8.2 Internal Breach: In the event of a security breach by Your employee or Third-Party Contractor, You will maintain responsibility for initiating remedial actions and notify immediately Wecountable of the breach and steps you expect to remedy the breach.
9.1 You agree to hold harmless and indemnify Wecountable, and its affiliates, officers, agents, and employees from and against any third party claim arising from or in any way related to your use of the Software, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys' fees, of every kind and nature. In such a case, Wecountable will provide you with written notice of such claim, suit or action.
10. Governing Law
10.1 UNLESS PROHIBITED BY LAW, THIS AGREEMENT IS MADE IN ACCORDANCE WITH AND IS GOVERNED AND CONSTRUED UNDER the laws of THE STATE OF UTAH, WITHOUT REFERENCE TO SUCH STATE'S CONFLICTS OF LAWS PRINCIPLES. IN NO EVENT MAY THIS AGREEMENT BE GOVERNED BY THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS.
11. Compliance with Laws and Control Disclaimer
11.1 Each Party must comply with all laws, rule, or regulations applicable to such party's activities in relation to this Agreement.
11.2 Wecountable will not provide You with legal advice regarding compliance, data privacy or other relevant laws, rules or regulations in the jurisdictions in which You use the Software. Wecountable may offer suggestions based on our analysis, but that will not constitute as legal advice.
11.3 You understand that the Software can be configured and used in ways that do and do not comply with Laws and it is Your sole responsibility to monitor its compliance and Your employee's compliance with all relevant Laws.
11.4 You acknowledge that Wecountable exercises no control over Your specific human resource practices implemented using the Software or Your decisions as to employment, promotion, advancement, termination, notification, or compensation of any employee or authorized user of the Software. Wecountable hereby disclaims all liability arising from Your decisions and from harmful data or code uploaded to the Software by You, Your employees or contractors.
12. Merger and Amendments
12.1 This Agreement includes any schedules and exhibits attached hereto, and any executed Order Forms between You and Wecountable. Such documents encompass the entire agreement between you and Wecountable with respect to the subject matter hereof and supersede all prior representations, agreements and understandings, written or oral. This Agreement may only be altered, amended or modified by duly executed written instrument.
13.1 The failure of Wecountable to exercise or enforce any right or provision of the TOS shall not constitute a waiver of such right or provision. The TOS constitutes the entire agreement between you and Wecountable and govern your use of the Service, superseding any prior agreements between you and Wecountable (including, but not limited to, any prior versions of the TOS). If you have any questions regarding this Terms of Service or if you wish to discuss the terms and conditions contained herein please contact Wecountable at (@) Wecountable dot com.
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