Last Modified: 10/15/2020
PLEASE READ THESE TERMS OF SERVICE CAREFULLY
Your Resultably Order Form (“Order Form”) specifies the Resultably Services for which you have purchased a right to use. The Services are generally purchased as subscriptions and are made available to you pursuant to this Agreement through our web-based software platform, unless otherwise provided in your Order Form. Your subscription is non-exclusive, non-transferable, and revocable in accordance with this Agreement. We try to make the Services available 24 hours a day, 7 days a week, except for planned down-time for maintenance. Your use of the Services are subject to any usage limits specified in the Order Form.
2.1 Term of Agreement. This Agreement commences on the Start Date identified in your Order Form and continues until all applicable purchased subscriptions have expired or terminated.
2.2 Term of Purchased Subscription. The term of your subscription shall be as specified in your Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term, unless either party gives the other notice of non-renewal at least thirty (30) days before the end of the relevant subscription term. The pricing during any renewal term will be at list pricing in effect at the time of renewal. If you add additional Services during the Term, the fees for the additional Services will be pro-rated, and they will renew along with your subscription, unless otherwise indicated in your Order Form.
2.3 Termination. A party may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
3.1 Fees. You agree to pay all fees specified in your Order Form. Except as otherwise specified herein or in your Order Form, (i) fees are based on Services subscriptions purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term. Unless otherwise provided in your Order Form, subscription fees are assessed on a monthly basis, and are due on or before the Start Date and monthly thereafter. If you purchase a subscription for additional Services, the amount of the additional Services shall be prorated from the effective date of activation. Payments that are more than 30 days late may incur a penalty interest rate of 2% per month or the maximum rate permitted by law, whichever is less.
3.2 Payment. You agree to provide us with valid and updated credit card information, or such other payment method as specified in your Order Form, and complete and accurate billing and contact information. You agree to notify us of any changes to such information. If you provide credit card information to us, you authorize Resultably or a third party on our behalf, such as a payment processor, to charge such credit card for all Services specified in the Order Form for the initial subscription term and any renewal subscription term(s) thereafter in accordance with this Agreement. Such charges shall be made in advance, either monthly or in accordance with any different billing frequency specified in the Order Form. If the Order Form specifies that payment will be by a method other than a credit card, we will invoice you in advance and otherwise in accordance with the Order Form. Unless otherwise stated in the Order Form, invoiced fees are due net 30 days from the invoice date.
3.3 Taxes. Our fees do not include 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 (collectively, “Taxes”). You are responsible for paying all Taxes associated with your purchases hereunder. If we have the legal obligation to pay or collect Taxes for which you are responsible under this Section, we will invoice you and you will pay that amount unless you provide a valid tax exemption certificate authorized by the appropriate taxing authority.
3.4 Suspension. If any charge owed by you to us is more than thirty (30) days late, and you have not given us notice of your dispute of such charge, we may in our discretion, without limitation of any other rights or remedies we may have, suspend Services to you until all owed amounts are paid in full.
4.1 Reservation of Rights. Subject to the limited rights expressly granted by this Agreement, we reserve all right, title and interest in and to the Services and all content and materials thereon, including related intellectual property rights. No rights are granted to you hereunder other than as expressly set forth in this Agreement.
Except as otherwise expressly provided herein, Resultably owns and shall retain all of its right, title and interest in and to the Services and all content and materials thereon, including all related intellectual property rights, and you shall not make any claim to the contrary. You further acknowledge that the Services have been created, developed and maintained by us at great expense of time and money, such that misappropriation or unauthorized disclosure or use of the Services by you or others for commercial gain would unfairly and irreparably harm us, in a manner for which damages would not be an adequate remedy, and you therefore consent to our obtaining injunctive relief to restrain any actual or threatened breach of this Agreement.
5.1 Customer Data Ownership and Use. “Customer Data” means all information that you submit or collect via the Services. As between the parties, you own and retain all rights to the Customer Data. This Agreement does not grant us any ownership rights to Customer Data.
5.2 Customer Data Representations. You represent and warrant that you have obtained all necessary consents or otherwise have the right to disclose such Customer Data to, or to cause such Customer Data to be stored by, us, and that our processing of the Customer Data in the performance of this Agreement shall not violate any Law or the rights of any third party.
5.3 Our Use of Customer Data. You grant permission to us to use the Customer Data as necessary to provide the Services to you and as permitted by this Agreement. Customer Data will be deleted after termination or expiration of your Order Form, and we have no obligation to retain such Customer Data thereafter.
5.4 De-Identified Data. You agree that we may collect, use, and disclose data derived by us from our performance of or your use of the Services, operation of the Services, or input by you or your users, that is anonymized, does not include personal information, and cannot be used to identify you or any individual person (“De-Identified Data”). We may collect, use and disclose such De-Identified Data for the purposes of analysis, including, without limitation, statistical analysis, trend analysis, creation of data models, and creation of statistical rules, and for any other lawful purpose, including, without limitation, benchmarking, developing and improving our products and services, and determining trends associated with use, operation, and efficacy of our products and services.
5.5 Disclosure Required by Law. We reserve the right at all times to disclose any information, including without limitation, Customer Data, as necessary to satisfy any law, regulation, legal process or governmental request.
5.6 Sensitive Information. YOU AGREE NOT TO USE THE SERVICES TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION. WE WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM YOUR USE OF THE SERVICES TO COLLECT OR STORE SENSITIVE INFORMATION. “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; physical or mental health condition or information; or other financial or health information, including any information subject to the Health Insurance Portability and Accountability Act, the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information.
5.7 Feedback. You grant us a worldwide, perpetual, royalty-free, irrevocable, fully paid up license to use and incorporate into our products and services, any suggestion, recommendation, correction, feature or enhancement request, or any other feedback that you provide to us relating to the Services, our products and services, or our business.
6.2. Security. We maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. Those safeguards will include, but will not be limited to, measures designed to prevent unauthorized access to or disclosure of Customer Data.
7.1 General Restrictions. You will not (a) make the Services available to anyone other than your authorized users who are employees of your company, or use the Services for the benefit of a third party, unless expressly stated otherwise by Resultably in writing, (b) sell, resell, license, sublicense, distribute, make available, rent or lease the Services, or any part thereof, (c) use the Services 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 Services to store or transmit malicious code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, (f) attempt to gain unauthorized access to the Services or related systems or networks, (g) permit direct or indirect access to or use of the Services in a way that circumvents a contractual usage limit, or to access or use any of our intellectual property except as permitted under this Agreement or an Order Form, (h) modify, copy, or create derivative works based on the Services or any part, feature, function or user interface thereof, (i) copy any content therefrom except as permitted herein or in an Order Form, or (j) disassemble, reverse engineer, or decompile the Services, or any part thereof, or access it to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Services, (3) copy any ideas, features, functions or graphics of the Services or (4) determine whether the Services are within the scope of any patent. Any use of the Services in breach of this Agreement, by you or your authorized users that in our judgment threatens the security, integrity or availability of the Services, may result in our immediate suspension of your subscription to use 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.
7.2 Legal Restrictions. You may not use the Services if you are legally prohibited from receiving or using the Services under the laws of the country in which you are resident or from which you access or use the Services. The Services are not designed to comply with industry-specific regulations such as the Health Insurance Portability and Accountability Act (HIPAA), the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so you may not use the Services where your communications would be subject to such laws.
7.3 Competitors. You may not access or use the Services if you are a competitor. In addition, you may not access or use the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
7.4 Export Restrictions. In accordance with United States export laws, you agree not to export or re-export the Services except in full compliance with all United States laws, rules, decrees, regulations, and executive orders, including without limitation the Export Administration Regulation of the U.S. Department of Commerce and the sanctions programs administered by the Office of Foreign Assets Control (OFAC) of the U.S. Department of the Treasury. Without limitation of the foregoing no Services may be exported or re-exported into (or to a legal permanent resident of) any country to which the United States embargoes goods or to anyone on the United States Treasury Department’s list of Specially Designated Nationals and Blocked Persons or the U.S. Commerce Department’s Denied Persons List.
8.1 Customer Support. Email support is included at no additional cost to all customers that have purchased a subscription to use the Services. We accept email support questions 24 Hours per Day x 7 Days per week. We attempt to respond to email support questions within one business day, however, we do not promise or guarantee any specific response time.
9.1 Passwords. It is your responsibility to safeguard your users’ passwords and keep them confidential, and to avoid use of passwords on public computers or in any manner that would allow a third party to access the Services. Your use of your passwords authenticates your users’ identity and verifies the instructions entered for any transaction, and we are entitled to act on transaction instructions received when your passwords are used, regardless of whether use of the password has been authorized by you. You shall notify us immediately of any unauthorized use of your users’ identifications and passwords or your account.
9.2 Customer Systems Responsibility. You are solely responsible for the set-up, maintenance, and security of the computer and online service and/or network connection(s) used for accessing the Services. You acknowledge that frequent, regular software updates for internet browsers, antivirus applications, operating systems, media players, and other communication software are essential to the security and functionality of your connection to the Services. We cannot guarantee that the Services will be compatible with old or outdated internet browsers, and using older or outdated internet browsers may prevent you from accessing the Services, and some features may not function as expected.
9.3 Compliance with Law. You acknowledge that your use of the Services may be governed by applicable federal, state and local laws, rules, decree, regulations and ordinances (“Laws”), and you agree to comply with all such Laws in connection with your use of the Services. You are solely responsible for your compliance with all applicable Laws, and we have no responsibility to advise you of your obligations or responsibilities in complying with any Laws applicable to your use of the Services. YOUR USE OF THE SERVICES IS VOID WHERE PROHIBITED OR RESTRICTED BY LAW.
10.1 Non-Resultably Products and Services. Resultably or third parties may make certain applications, products, or services from third parties available to you. Your use or acquisition of such products or services, and any exchange of data with such third party, product or service is solely between you and the applicable third party. We not warrant or support third party applications, products or services unless expressly provided otherwise in an Order Form. We are not responsible for any disclosure, modification or deletion of Customer Data resulting from access by such third party, product or service.
10.2 Integration with Third Party Applications. The Services may contain features designed to interoperate with third party applications and other file and data transfer methods. We cannot guarantee such interoperation, nor any continued availability of such features..
11.1 Indemnification by Us. We will indemnify, defend and hold you harmless, at our expense, against any third-party claim, suit, action, or proceeding (each, an “Action”) brought against you (and your officers, directors, employees, and agents) by a third party not affiliated with you to the extent that such Action is based upon or arises out of alleged infringement or misappropriation of any patent, copyright, trade secret, proprietary information or intellectual property right by reason of your authorized use of the Services and to defend you at our expense in any suits at law or in equity arising therefrom to which you may be made a party. The foregoing indemnity shall not apply to the extent that the Action is caused by or results from: (a) your combination or use of the Services with software, services, products or information developed by you or any third party, if the Action would not have existed but for such combination or use; (b) unauthorized modification of the Services by anyone other than you or us (or our respective designees) if the Action would have been avoided by use of the unmodified Services; (c) your continued allegedly infringing activity after receiving notice thereof or after being provided modifications, or a new software version or release, that would have avoided the alleged infringement; or (d) your use of the Services in breach of this Agreement or any other documentation provided to you by us. You will: notify us in writing within thirty (30) days of your becoming aware of any such claim; give us sole control of the defense or settlement of such a claim; and provide us (at our expense) with any and all information and assistance reasonably requested by us to handle the defense or settlement of the claim. We shall not accept any settlement that (i) imposes an obligation on you; (ii) requires you to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on you without your prior written consent.
11.2 Indemnification by You. You will indemnify, defend and hold us harmless, at your expense, against any third-party claim, suit, action, or proceeding (each, an “Action”) brought against us (and our officers, directors, employees, agents, service providers, licensors, and affiliates) by a third party not affiliated with us to the extent that such Action is based upon or arises out of (a) unauthorized or illegal use of the Services by you, (b) your noncompliance with or breach of this Agreement or any representation herein, (c) your use of third-party products, or (d) the unauthorized use of the Services by any other person using your account. We will: notify you in writing within thirty (30) days of our becoming aware of any such claim; give you sole control of the defense or settlement of such a claim; and provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defense or settlement of the claim. You shall not accept any settlement that (i) imposes an obligation on us; (ii) requires us to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on us without our prior written consent.
11.3 Confidentiality. “Confidential Information” means all information provided by you or us (“Discloser”) to the other (“Receiver”), whether orally or in writing that is designated as confidential. Confidential Information will include Customer Data and information about the Discloser’s business plans, technical data, and the terms of your Order Form. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser or (ii) was known to the Receiver before receipt from the Discloser. The Receiver will: (i) protect the confidentiality of the Confidential Information using the same degree of care that it uses with its own confidential information of similar nature, but with no less than reasonable care, (ii) not use any Confidential Information for any purpose outside the scope of this Agreement, (iii) not disclose Confidential Information to any third party (except our third party service providers), and (iv) limit access to Confidential Information to its employees, contractors, advisors and agents. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
You grant us the right to add your name and company logo to our customer list and website, unless you ask us not to do so in writing.
13.1 Our Warranties. We warrant that during an applicable subscription term (a) we will not materially decrease the overall security of the Services, and (b) we will not materially decrease the overall functionality of the Services. For any breach of a warranty above, your exclusive remedies are those contained herein.
13.2 Our Disclaimers. We do not warrant that the Services will perform in accordance with any specifications, documentation, or other standards, perform in an uninterrupted capacity, be error-free or bug-free, or provide complete or accurate data. We do not make any warranties as to the results to be obtained from the use of our Services. Use of the Services and reliance thereon is at your sole risk. We shall not be liable to you or any other entity or person for your or their inability to use our Services, or for any inaccuracies, errors, omissions, delays, computer viruses or other infirmity or corruption, damages, claims, liabilities, or losses, regardless of cause, in or arising from the use of our Services.
13.3 “As-Is.” Although we may provide guidance in support of your use of the functionality of the Services, our Services are provided on an “as is” basis and without warranty. No warranties, either express or implied, including but not limited to any implied warranty of merchantability, fitness for a particular purpose, title, non-infringement, or any other type is provided.
13.4 Liability. In spite of anything to the contrary in this Agreement, Resultably’s maximum aggregate liability to you related in any way to or in connection with this Agreement, including your use, shall be limited to the amount of fees paid by you to us pursuant to this Agreement over the twelve (12) month period immediately preceding the circumstance giving rise to the liability. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR LOSS OF PROFITS, REVENUE, DATA OR BUSINESS OPPORTUNITIES.
14.1 Terms Updates. We may modify these Terms at any time upon notice to you (which may be by email notice or by posting a notice through the Services or web-based platform used to access the Services); provided, however, that if you do not agree to the modified Terms, you shall notify us in writing within thirty (30) days, in which case the previous Terms will apply to your use of the Services for the remainder of the then-current subscription term, after which your right to use the Services shall terminate.
15.1 We are based in the United States, and our Services are hosted there. If you are using our Services from another country, the laws governing your use of our Services may be different from the laws of your country. If you decide to use our Services, you are agreeing to be governed by the laws of the United States, and agree to the transfer of your Customer Data to the United States.
16.1 Free Trials and Demonstrations. If you register for a free trial, or request a demonstration of any of our Services, we may make one or more of our Services available to you on a trial basis free of charge until the earlier of (a) the end of the free trial period for which you registered to use the applicable Service(s), (b) the end of the demonstration period, or (c) the start date of any Order Form for such Service(s), or (d) termination by us in our sole discretion. Additional trial and demonstration terms and conditions may appear on the trial or demonstration registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. Note that free trials and demonstrations may not have an associated Order Form. If there is no Start Date specified in an Order Form for a free trial or demonstration, the “Start Date” of such free trial or demonstration shall be the date on which you begin use of the free trial or demonstration.
16.2 Free Trial and Demonstration Use Data. ANY CUSTOMER DATA YOU ENTER INTO THE SERVICES DURING YOUR FREE TRIAL OR DURING YOUR DEMONSTRATION MAY BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL OR DEMONSTRATION, PURCHASE APPLICABLE UPGRADED SERVICES, OR EXPORT SUCH CUSTOMER DATA, BEFORE THE END OF THE TRIAL OR DEMONSTRATION PERIOD, IF APPLICABLE. DURING THE FREE TRIAL OR DEMONSTRATION PERIOD THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND RESULTABLY SHALL HAVE NO INDEMNIFICATION OBLIGATIONS WITH RESPECT TO THE SERVICES FOR THE FREE TRIAL OR DEMONSTRATION PERIOD. WITHOUT LIMITING THE FOREGOING, RESULTABLY DOES NOT REPRESENT OR WARRANT TO YOU THAT: (A) YOUR USE OF THE SERVICES DURING THE FREE TRIAL OR DEMONSTRATION PERIOD WILL MEET YOUR REQUIREMENTS, (B) YOUR USE OF THE SERVICES DURING THE FREE TRIAL OR DEMONSTRATION PERIOD WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED DURING THE FREE TRIAL OR DEMONSTRATION PERIOD WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, YOU SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO RESULTABLY AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF YOUR USE OF THE SERVICES DURING THE FREE TRIAL OR DEMONSTRATION PERIOD, ANY BREACH BY YOU OF THIS AGREEMENT AND ANY OF YOUR INDEMNIFICATION OBLIGATIONS HEREUNDER.ADDITIONALLY, YOU REPRESENT AND WARRANT TO US THAT YOU HAVE OBTAINED ALL NECESSARY CONSENTS, OR OTHERWISE HAVE A LAWFUL BASIS, TO ENTER, OR CAUSE TO BE ENTERED, ALL DATA ENTERED INTO OUR SERVICES DURING THE DEMONSTRATION OR FREE TRIAL PERIOD.
17.1 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, USA without regard to its conflict of laws provisions. Each party agrees and consents to the exclusive jurisdiction of the state and federal courts of the Commonwealth of Massachusetts for all purposes and actions relating to this Agreement and further agrees and consents that venue of any action brought hereunder shall be exclusively in the Commonwealth of Massachusetts. If any action is brought to enforce or interpret this Agreement, the prevailing party shall be entitled to recover its attorney’s fees and costs in the same or separate action and any other appropriate relief. If you are located outside of the territory of the United States, you 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.
17.3 Assignment. Unless provided herein, neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety, without the other party’s consent to its affiliates or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, we will refund to you any prepaid fees allocable to the remainder of the term of all subscriptions for the period after the effective date of such termination. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
17.4 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
17.5 Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
17.6 Force Majeure. No party to this Agreement will be responsible for failure or delay of performance if caused by: an act of war, hostility, terrorism or sabotage; epidemic or pandemic; act of God; natural disaster; or electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
17.7 Waiver. Our failure to enforce our rights under the Agreement at any time for any period will not be construed as a waiver of such rights.
17.8 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
17.9 Survival. Any and all provisions related to or regarding limitation of liability, disclaimers, and indemnification, as well as any other provisions which by their nature are intended to survive expiration or termination of this Agreement, hereby do survive any expiration or termination of this Agreement or any termination of your use or access to the Services.