Effective August 12, 2013
THESE TERMS OF SERVICE ("TERMS" or "AGREEMENT") GOVERN YOUR USE OF AND ACCESS TO SERVICES PROVIDED BY DUOPLANE, WHETHER IN CONNECTION WITH A PAID SUBSCRIPTION TO OUR SERVICE OR A FREE TRIAL OF THE SERVICE.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, BY USING THE DUOPLANE SERVICE, OR BY EXECUTING AN ORDER FORM 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 TO THESE TERMS AND CONDITIONS, AND IN SUCH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY. 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 DUOPLANE SERVICE.
"Consulting Service" means the professional services provided to You by Us, which may include training services, installation, integration or other consulting services.
"Duoplane" means Duoplane, Inc. or any of its successors or assignees. In these Terms, Duoplane may also be referred to through the use of "We", "Us", or "Our".
"Duoplane Service" or "Service" means all services, including any Subscription Service and / or Consulting Service, provided to You by Us.
"Order Form" means any Duoplane generated service order form by which You agree to subscribe to Our Subscription Service and / or purchase Our Consulting Service.
"Subscription Service" means the on-demand business management applications, tools and platform provided by Duoplane that you have subscribed to by an Order Form.
"Subscription Term" means the period during which You have agreed to subscribe to the Subscription Service.
"Users" means your employees, representatives, consultants, contractors or agents who are authorized to use the Subscription Service for your benefit and have unique user identifications and passwords for Subscription Service.
"You", "Your", or "Customer" means you as an individual, or the company or other legal entity for which you are accepting these Terms.
"Your Data" means all electronic data or information submitted by You to the Duoplane Service.
During the Subscription Term, Duoplane grants to Customer a nontransferable, nonexclusive, worldwide right to permit your Users to access and use the Service subject to the terms of the Agreement.
Our responsibilities: Subject to the terms and conditions of this Agreement, Duoplane will make the Subscription Service available to You pursuant to this Agreement and all Order Forms during the Subscription Term. Duoplane shall use commercially reasonable efforts to make the Subscription Service available 24 hours a day, 7 days a week, except for: (a) planned downtime less than 15 minutes not more than once per 24 hour period (and of which We shall endeavor to give at least 24 hours notice via the Service and which We shall schedule to the extent practicable from 11:00 p.m. to 11:15 p.m. Pacific Time), (b) planned downtime greater than 15 minutes (of which We shall endeavor to give at least 24 hours notice via the Service and 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 (c) 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. You agree that Your purchase of subscriptions is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by Duoplane with respect to future functionality or features.
Your responsibilities: You shall (i) be responsible for Users' compliance with these Terms, (ii) be responsible for the accuracy, quality and legality of Your Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Subscription Service, and notify Us promptly of any such unauthorized access or use, and (iv) use the Duoplane Service only in accordance with the Agreement and applicable laws and government regulations. You shall not (a) make the Subscription Service available to anyone other than Users, (b) sell, resell, rent or lease the Duoplane Service, (c) use the Subscription 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 the Subscription Service to store or transmit malicious software code, (e) interfere with or disrupt the integrity or performance of the Duoplane Service or third-party data contained therein, (f) attempt to gain unauthorized access to the Duoplane Service or their related systems or networks, or (g) remove any proprietary notices or labels from the Service. Customer shall use the Service only for its own internal business operations, and not for the operation of a service bureau or timesharing service.
We may provide the Consulting Service to you pursuant to an Order Form. Fees for the Consulting Service are in addition to your Subscription Fee.
Fees and Payment
Subscription and Consulting Fees
You shall pay all fees or charges as specified on each executed Order Form ("Fees"). We will charge You at a monthly or annual frequency (as may be selected by You) or as otherwise specified in an invoice or Order Form, if applicable. All payment obligations are non-cancelable and all amounts paid are nonrefundable. Subscriptions cannot be decreased during the relevant Subscription Term. Duoplane charges and collects in advance for Fees, with the exception of ad hoc usage-based fees, which are charged in arrears.
Invoicing and Payment
You will provide Us with valid and updated credit card information or with an alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit card for all Services listed in the Order Form for the initial Subscription Term and any renewal Subscription Term(s) as set forth in these Terms.
If any amount owing by You under this or any other agreement to Us is 10 or more days overdue, We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our services to You until such amounts are paid in full.
Unless otherwise stated, Our charges do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively "Taxes"). You are responsible for paying Taxes except those assessable against Duoplane for its income, property, or employees. We will invoice You for such Taxes if We believe We have a legal obligation to do so and You agree to pay such Taxes if so invoiced.
Subscription Term and Renewal
Either You or Duoplane may elect to terminate Your account and subscription to Subscription Service as of the end of your then current Subscription Term by providing notice, in accordance with these Terms, on or prior to the date thirty (30) days preceding the end of such Subscription Term. Unless Your Account and subscription to the Subscription Service is so terminated, Your subscription to the Subscription Service will renew for a Subscription Term equivalent in length to the then expiring Subscription Term.
Intellectual Property Rights
Reservation of Rights
Subject to the limited rights expressly granted in these Terms, We reserve all rights, title and interest in and to the Duoplane Service, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein. Duoplane shall retain all ownership rights to any and all Consulting Service deliverables excluding any pre-existing technology or materials supplied by You for incorporation into such deliverable. You acknowledge that nothing in these Terms shall restrict or limit Us from performing similar services for any third party.
We shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Duoplane Service any suggestions, enhancement requests, recommendations or other feedback provided by you.
You shall not (i) permit any third party to access the Duoplane Service except as permitted herein, (ii) create derivative works based on the Duoplane Service except as expressly authorized by Duoplane, (iii) copy, frame or mirror any part or content of the Duoplane Service, (iv) reverse engineer the Duoplane Service, or (v) access the Duoplane Service in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Duoplane Service. You may not access the Service if you are Our direct competitor, except with Our prior written consent. In addition, you may not access the Service for purposes of monitoring the Service's availability, performance or functionality, or for any other benchmarking or competitive purposes.
You grant Duoplane the right to use Your name, mark and logo on Our website, in Our marketing materials, and to identify You as a Duoplane customer. You further agree that "Powered by Duoplane" or similar marks may appear in forms, web pages and other outputs of Duoplane Service.
Subject to the limited rights granted by You in this Agreement, We acquire no right, title or interest from You or Your licensors under this Agreement in or to Your Data, including any intellectual property rights therein. You agree to grant Duoplane a perpetual, non-exclusive license to use Your Data (a) in order to provide the Service to You; (b) for aggregated and anonymized statistical use (provided that such data does not contain personally identifying information); and (c) as necessary to monitor and improve the Service.
Data Security and Confidentiality
We will maintain commercially appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of your Data.
Protection of Confidential Information.
"Confidential Information" means all information disclosed by You to Duoplane or by Duoplane to You which is in tangible form and labeled "confidential" (or with a similar legend) or which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure. For purposes of these Terms, Your Data shall be deemed Confidential Information. Notwithstanding the foregoing, Confidential Information shall not include information that (a) was already known to the receiving party at the time of disclosure by the disclosing party; (b) was or is obtained by the receiving party by a third party not known by the receiving party to be under an obligation of confidentiality with respect to such information; (c) is or becomes generally available to the public other than by violation of these Terms; or (d) was or is independently developed by the receiving party without use of the disclosing party's Confidential Information.
Subject to the express permissions of these Terms, You and Duoplane will protect each other's Confidential Information from unauthorized use, access or disclosure in the same manner as each protects its own Confidential Information, but with no less than reasonable care. Except as otherwise expressly permitted pursuant to these Terms, each of us may use each other's Confidential Information solely to exercise our respective rights and perform our respective obligations under these Terms and shall disclose such Confidential Information solely to those of our respective employees, representatives and agents who have a need to know such Confidential Information for such purposes and who are bound to maintain the confidentiality of, and not misuse, such Confidential Information.
No Sensitive Information
You agree not to use Duoplane Service to collect, manage, or process Sensitive Information. We will not have any liability that may result from your use of our Service to collect or manage Sensitive Information. "Sensitive Information" means credit or debit card numbers; personal financial account information; Social Security numbers; passport numbers; driver's license numbers or similar identifiers; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to regulations, laws or industry standards designed to protect data privacy and security, such as the Health Insurance Portability and Accountability Act and the Payment Card Industry Data Security Standards.
Duoplane may access or disclose information about You or Your account, including Your Data, in order to (a) comply with the law or respond to lawful requests or legal process; (b) protect Duoplane's or its customers' or partners' rights or property, including enforcement of these Terms or other policies associated with the Service; (c) act on a good faith belief that such disclosure is necessary to protect personal safety or avoid violation of applicable law or regulation.
Warranties and Disclaimers
THE SITE AND THE SERVICE, INCLUDING ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND DUOPLANE EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT DUOPLANE DOES NOT WARRANT THAT THE SERVICES, INCLUDING PROFESSIONAL SERVICES OR RELATED DELIVERABLES, IF ANY, WILL MEET CUSTOMER'S REQUIREMENTS, OR WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE.
We shall indemnify and hold you harmless, from and against any claim against you by reason of your use of the Service as permitted in these Terms, brought by a third party alleging that the Service infringes or mis-appropriates a third party's valid patent, copyright, trademark or trade secret (an "IP Claim"). Duoplane shall, at its expense, defend such IP Claim and pay damages finally awarded against You in connection therewith, including the reasonable fees and expenses of the attorneys engaged by Duoplane for such defense, provided that (a) You promptly notify Duoplane of the threat or notice of such IP Claim, (b) Duoplane 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 Duoplane in connection therewith. In the event of a claim against You, or if We reasonably believe the Duoplane Service may infringe or misappropriate, We may in Our discretion and at no cost to You (i) modify the Duoplane Service so that they no longer infringe or misappropriate, (ii) obtain a license for Your continued use of the Duoplane Service in accordance with this Agreement, or (iii) terminate your subscriptions for such Duoplane Service upon 30 days' written notice and refund to You any prepaid fees covering the remainder of the term of such subscriptions after the effective date of termination.
You will indemnify and hold Duoplane harmless against any claim brought by a third party against Duoplane arising from or related to use of the Service by You provided that Duoplane promptly notifies You of the threat or notice of such a claim.
This Section (Mutual Indemnification) states the indemnifying party's sole liability to, and the indemnified party's exclusive remedy against, the other party for any type of claim described in this Section.
Limitation of Liability
TO THE EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL EITHER PARTY TO THESE TERMS, OR THEIR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE OR OTHER SIMILAR DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, BUSINESS INTERRUPTION OR ANY OTHER LOSS INCURRED BY SUCH PARTY OR THIRD PARTY IN CONNECTION WITH THESE TERMS OR THE SERVICE, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES. IN NO EVENT SHALL DUOPLANE'S AGGREGATE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. WE DISCLAIM ALL LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS THAT YOU USE. OUR LICENSORS SHALL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT. YOU UNDERSTAND AND AGREE THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, WE WOULD NOT PROVIDE THE SUBSCRIPTION SERVICE TO YOU.
Contracting Entity and Governing Law
You are contracting with Duoplane, Inc. This Agreement shall be governed by California law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in San Francisco, California, and the parties hereby consent to jurisdiction and venue in the U.S. federal courts located in the Northern District of California.
Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) delivery by a nationally recognized overnight delivery service, or (iii) the first business day after sending by electronic mail (provided electronic mail mail shall not be sufficient for notices of an indemnifiable claim). Billing-related notices to You shall be addressed to the relevant billing contact designated by You. All other notices to You shall be addressed to the relevant Duoplane Service system administrator designated by You.
Waiver of Jury Trial
Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
Local Laws and Export Compliance
Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Service. Without limiting the foregoing, (i) each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) You shall not permit Users to access or use Service in violation of any U.S. export embargo, prohibition or restriction.
Relationship of Parties; Contract for Services
The parties are independent contractors. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the parties. This Agreement is a contract for the provision of services and not a contract for the sale of goods. The provisions of the Uniform Commercial Code (UCC), the Uniform Computer Information Transaction Act (UCITA), or any substantially similar legislation as may be enacted, shall not apply to this Agreement. If you are located outside of the territory of the United States, the parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not govern this Agreement or the rights and obligations of the parties under this Agreement.
No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.
If any provision in these Terms is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms shall remain in effect.
You shall pay on demand all of Our reasonable attorney fees and other costs incurred by Us to collect any fees or charges due Us under this Agreement.
You may not assign this Agreement to any third party except upon Duoplane's prior written consent, which consent shall not to be unreasonably withheld. This Agreement and each and all of the provisions hereof bind and benefit the parties and their respective heirs, executors, administrators, legal representatives, successors and assigns.
Entire Agreement; Revisions
These Terms, together with any Order Form(s), constitute the entire agreement, and supersede any and all prior agreements between You and Duoplane with regard to the subject matter hereof. We may amend these Terms from time to time, in which case the new Terms will supersede prior versions. We will notify You not less than ten (10) days prior to the effective date of any such amendment and Your continued use of the Service following the effective date of any such amendment may be relied upon by Duoplane as Your consent to any such amendment.