This Service Agreement (the "Agreement") is between OnPro, Inc., a Delaware corporation ("Signalayer") and the organization agreeing to these terms ("Customer"). This Agreement governs access to and use of the Services and Beta Services provided by Signalayer. By signing your contract for the Services, or using the Services, you agree to this Agreement as a Customer.
If you are agreeing to this Agreement for use of the Services by an organization, you are agreeing on behalf of that organization. You must have the authority to bind that organization to these terms, otherwise you must not sign up for the Services.
This Agreement governs access to, and use of, the Services and Software. Customer and End Users may access and use the Services in accordance with this Agreement.
Signalayer may update the Services from time to time. If Signalayer changes the Services in a manner that materially reduces their functionality, Signalayer will notify Customer at the email address associate with the account, and Customer may provide notice within 30 (thirty) days of the change to terminate the Agreement. This termination right will not apply to updates made to features provided on a beta or evaluation basis.
The Services allow Customer to download Software that may update automatically. If any component of the Software is offered under an open source license, Signalayer will make the license available to Customer and to the extent the provisions of that license grant Customer additional rights, those provisions will expressly override some terms of this Agreement with respect to that component of the Software.
Signalayer hereby grants to Customer during the Term a limited non-exclusive license to use the Software solely in connection with the Services and in accordance with this Agreement. This license is non-transferable, revocable, non-sublicensable, and will be fully paid up upon Customer's payment of the Fees.
1.4 Customer Domains
Prior to providing the Services Signalayer may require Customer to verify that Customer owns or controls the Customer Domains. If Customer does not own or control the Customer Domains, then Signalayer will have no obligation to provide Customer with the Services.
2. Customer Obligations
2.1 Customer administration of the Services
Customer may specify End Users as Administrators. Customer is responsible for maintaining the confidentiality of passwords and Admin Accounts, and managing access to Admin Accounts. Signalayer's responsibilities do not extend to the internal management or administration of the Services for Customer. The Customer acknowledges that, if the Customer purchases the Services through a reseller and designates any of the reseller's personnel as Administrators of the Customer's Services account, the reseller may be able to control account information, including Customer Data, and access the Customer's Services account as described above.
2.2 Unauthorized Use or Access
Customer will prevent unauthorized use of the Services by its End Users and terminate any unauthorized use of or access to the Services. End User Accounts may only be provisioned, registered, and used by a single End User. The Services are not intended for End Users under the age of 13. Customer will ensure that it does not allow any person under 13 to use the Services. Customer will promptly notify Signalayer of any unauthorized use of or access to the Services.
Customer will not:
(a) copy, reproduce, distribute, transfer (by sale, resale, renting, lending, license, sublicense, download or otherwise), modify, create derivative works of, publish, publicly perform, or publicly display any part of the Services or Software;
(b) disrupt servers or networks connected to the Site; (c) publish, transmit, or link to any robot, spider, crawler, virus, malware, Trojan horse, spyware, or similar malicious code or item intended (or that has the potential) to damage, disrupt, compromise, or exploit the Software;
(c) reverse engineer the Services or Software, or attempt or assist anyone else to do so;
(d) circumvent, disable or otherwise interfere with security-related features of the Site or features that prevent or restrict use or copying of any Content or that enforce limitations on use of the Services or Software.
Customer is responsible for use of the Services by its End Users. Customer will comply with laws and regulations applicable to Customer's use of the Services, if any. Customer will obtain and maintain from End Users any consents necessary to allow Administrators to engage in the activities described in this Agreement and to allow Signalayer to provide the Services.
Customer will not store, transmit or otherwise process any information via the Services that falls within the definition of "Protected Health Information" under the HIPAA Privacy Rule (45 C.F.R. Section 164.051), unless Customer and Signalayer separately enter into a HIPAA Business Associate Agreement.
2.5 Third-party Apps and Integrations
If Customer uses any third-party service or applications, such as a service that uses a Signalayer API, with the Services: (a) Signalayer will not be responsible for any act or omission of the third-party, including the third-party's access to or use of Customer Data; and (b) Signalayer does not warrant or support any service provided by the third-party2.5
2.6 Third-party Requests
a. Customer Responsibility
Customer is responsible for responding to Third-Party Requests via its own access to information. Customer will seek to obtain information required to respond to Third-Party Requests and will contact Signalayer only if it cannot obtain such information despite diligent efforts.
b. Signalayer Responsibility
Signalayer will make commercially reasonable efforts, to the extent allowed by law and by the terms of the Third-Party Request, to: (i) promptly notify Customer of Signalayer's receipt of a Third-Party Request; (ii) comply with Customer's commercially reasonable requests regarding its efforts to oppose a Third-Party Request; and (iii) provide Customer with information or tools required for Customer to respond to the Third-Party Request, if Customer is otherwise unable to obtain the information. If Customer fails to promptly respond to any Third-Party Request, then Signalayer may, but will not be obligated to do so.
3. Customer Content
3.1 Submitted information and Content
Customer hereby undertakes to comply and be responsible for any and all material and information submitted by Customer and its End Users in their use of Service and Software:
(a) Submitted Information and Materials must not contain information or materials which are inappropriate, inaccurate, misleading, fraudulent or otherwise illegal;
(b) Submitted Information and Materials must not contain, feature or promote any content, products, services, or other information that may be illegal to sell or promote under any applicable law, or that may be perceived as unlawful, inflammatory or offensive.
Customer acknowledges that Signalayer has no obligation to prescreen or monitor its access to or use of the Services or Software, or any information, materials or other content provided or made available through the Services or Software, but has the right to do so.
While Signalayer shall not be liable for any and all parts of the Submitted Information and Materials, it shall be entitled to remove or edit any of the Submitted Information and Materials which it believes to be inaccurate, inappropriate or in any other way inconsistent with the terms of this Agreement.
Signalayer reserves the right at any time to categorize or re-categorize any Submitted Information and Materials, as determined solely by Signalayer in its reasonable discretion.
NOTHING IN THESE TERMS OBLIGATES SIGNALAYER TO USE CUSTOMER SUBMITTED INFORMATION AND MATERIALS IN ANY WAY AT ALL.
Customer will pay Signalayer or Customer's Reseller all applicable Fees for the Services, in the currency indicated on the Order Form. Customer authorizes Signalayer, or Customer's reseller, to charge Customer for all applicable Fees using Customer's selected payment method. Fees are non-refundable except as required by law or as otherwise specifically permitted in this Agreement.
Customer will pay Signalayer invoices on the payment interval set forth in the Order Form. Signalayer may suspend or terminate the Services if Fees are past due. Customer will provide complete and accurate billing and contact information to Signalayer or to Customer's Reseller.
Fees are exclusive of taxes and Customer is responsible for all Taxes. Signalayer, or Customer's reseller, will charge Taxes when required to do so. If Customer provides Signalayer or its reseller with a valid exemption certificate, Signalayer or the reseller will not collect the taxes covered by that certificate.
4.4 Withholding taxes
Customer will pay Signalayer or its reseller net of any applicable Withholding Taxes. Customer and Signalayer, or Customer's reseller as applicable, will work together to avoid any Withholding Tax if exemptions, or a reduced treaty withholding rate, are available. If Signalayer or Customer's reseller qualifies for a tax exemption, or a reduced treaty withholding rate, Signalayer or Customer's reseller will provide Customer with reasonable documentary proof. Customer will provide Signalayer or Customer's reseller reasonable evidence that it has paid the relevant authority for the sum withheld or deducted.
4.5 Automated renewals and Trials
IF THE CUSTOMER'S ACCOUNT IS SET TO AUTO-RENEWAL OR IS IN A TRIAL PERIOD, SIGNALAYER (OR THE CUSTOMER'S RESELLER) MAY CHARGE AUTOMATICALLY AT THE END OF THE TRIAL OR FOR THE RENEWAL, UNLESS THE CUSTOMER NOTIFIES SIGNALAYER (OR THE CUSTOMER'S RESELLER, AS APPLICABLE) THAT THE CUSTOMER WANTS TO CANCEL OR DISABLE AUTO-RENEWAL. Signalayer may revise Service rates by providing the Customer at least 30 (thirty) days' notice prior to the next charge.
4.6 Purchase orders
If Customer requires the use of a purchase order or purchase order number, Customer: (i) must provide the purchase order number at the time of purchase; and (ii) agrees that any terms and conditions on a Customer purchase order will not apply to this Agreement and are null and void. If the Customer is purchasing via a reseller, any terms and conditions from the Customer's reseller or in a purchase order between the Customer and its reseller that conflict with the Agreement are null and void.
5.1 Suspension of End User accounts
If an End User: (a) violates this Agreement; or (b) uses the Services in a manner that Signalayer reasonably believes will cause it liability, then Signalayer may request that Customer suspend or terminate the applicable End User account. If Customer fails to promptly suspend or terminate the End User account, then Signalayer may do so.
5.2 Security emergencies
Notwithstanding anything in this Agreement, if there is a Security Emergency then Signalayer may automatically suspend use of the Services. Signalayer will make commercially reasonable efforts to narrowly tailor the suspension as needed to prevent or terminate the Security Emergency.
6. Intellectual Property Rights
6.1 Reservation of Rights
Except as expressly set forth herein, this Agreement does not grant:
(a) Signalayer any Intellectual Property Rights in Customer Data. Signalayer does not own the content Customer uses, submits or displays via Services or Software, including any images, logos, trademarks or written information. Customer is the respective owners of such content.
(b) Customer any Intellectual Property Rights in the Services or Signalayer trademarks and brand features.
6.2 Limited permissions
Customer grants Signalayer only the limited rights that are reasonably necessary for it to provide the Services. This limited permission also extends to Subcontractors or Sub-processors.
6.3 Feedback and suggestions
Signalayer may use, modify, and incorporate into its products and services, license and sublicense, any feedback, comments, or suggestions on the Services that Customer or End Users may send Signalayer or post in support channels without any obligation to Customer.
7.1 Agreement Term
This Agreement will remain in effect for the Term.
7.2 Services Term
Signalayer will provide the Services to Customer for the Services Term. Unless the parties agree otherwise in writing, End User Accounts create during any Services Term will have a prorated term ending on the last day of the pre-existing Services Term.
Either Party may terminate this Agreement, including all Order Forms, if: (i) the other Party is in material breach of the Agreement and fails to remedy that breach within 30 (thirty) days after receipt of written notice; or (ii) the other Party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within 90 (ninety) days.
8.2 Effects of Termination
If this Agreement terminates: (a) except as set forth in this Section, the rights and licenses granted by Signalayer to Customer will cease immediately; (b) Signalayer may, at Customer's request, provide Customer access to its account at then-current fees so that Customer may export its Customer Data; and (c) after a commercially reasonable period of time, Signalayer may delete any Customer Data relating to Customer's account.
The following sections will survive expiration or termination of this Agreement: 2.6 (Third Party Requests), 4 (Payment), 6 (Intellectual Property Rights), 8.2 (Effects of Termination), 9 (Indemnification), 10 (Disclaimers), 11 (Limitation of Liability), 12 (Disputes), and 13 (Miscellaneous).
9.1 By Customer
Customer will indemnify, defend, and hold harmless Signalayer from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys' fees) arising out of any claim by a third party against Signalayer and its Affiliates regarding: (a) Customer Data; (b) Customer Domains; or (c) Customer's, or Customer's End Users', use of the Services in violation of this Agreement.
9.2 By Signalayer
Signalayer will indemnify, defend, and hold harmless Customer from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys' fees) arising out of any claim by a third party against Customer to the extent based on an allegation that Signalayer's technology used to provide the Services to the Customer infringes or misappropriates any copyright, trade secret, U.S. patent, or trademark right of the third party. In no event will Signalayer have any obligations or liability under this section arising from: (a) use of any Services in a modified form or in combination with materials not furnished by Signalayer; and (b) any content, information, or data provided by Customer, End Users, or other third parties.
9.3 Possible Infringement
If Signalayer believes the Services or Software infringe or may be alleged to infringe a third party's Intellectual Property Rights, then Signalayer may: (a) obtain the right for Customer, at Signalayer's expense, to continue using the Services or Software; (b) provide a non-infringing functionally equivalent replacement; or (c) modify the Services or Software so that they no longer infringe. If Signalayer does not believe the options described in this section are commercially reasonable, then it may suspend or terminate Customer's use of the affected Services or Software, with a pro-rata refund of prepaid fees for the Services or Software.
9.4 General provisions
The Party seeking indemnification will promptly notify the other Party of the claim and cooperate with the other Party in defending the claim. The indemnifying Party will have full control and authority over the defense, except that: (a) any settlement requiring the Party seeking indemnification to admit liability requires prior written consent, not to be unreasonably withheld or delayed; and (b) the other Party may join in the defense with its own counsel at its own expense.
THE INDEMNITIES ABOVE ARE SIGNALAYER AND CUSTOMER'S ONLY REMEDY UNDER THIS AGREEMENT FOR VIOLATION BY THE OTHER PARTY OF A THIRD PARTY'S INTELLECTUAL PROPERTY RIGHTS.
THE SERVICES AND SOFTWARE ARE PROVIDED "AS IS." TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, NEITHER CUSTOMER NOR SIGNALAYER AND ITS AFFILIATES, SUPPLIERS, AND DISTRIBUTORS MAKE ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, OR NON-INFRINGEMENT. CUSTOMER IS RESPONSIBLE FOR USING THE SERVICES OR SOFTWARE IN ACCORDANCE WITH THE TERMS SET FORTH HEREIN AND BACKING UP ANY STORED DATA ON THE SERVICES.
10.2 Beta Services
Despite anything to the contrary in this Agreement: (a) Customer may choose to use Beta Services in its sole discretion; (b) Beta Services may not be supported and may be changed at any time without notice; (c) Beta Services may not be as reliable or available as the Services; (d) Beta Services have not been subjected to the same security measures and auditing to which the Services have been subjected; and (e) SIGNALAYER WILL HAVE NO LIABILITY ARISING OUT OF OR IN CONNECTION WITH BETA SERVICES - USE AT YOUR OWN RISK
11. Limitation of Liability
11.1 Limitation on Indirect Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT FOR SIGNALAYER OR CUSTOMER'S INDEMNIFICATION OBLIGATIONS, NEITHER CUSTOMER NOR SIGNALAYER AND ITS AFFILIATES, SUPPLIERS, AND DISTRIBUTORS WILL BE LIABLE UNDER THIS AGREEMENT FOR (I) INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR (II) LOSS OF USE, DATA, BUSINESS, REVENUES, OR PROFITS (IN EACH CASE WHETHER DIRECT OR INDIRECT), EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
11.2 Limitation on Amount of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, SIGNALAYER'S AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE LESSER OF $10,000 (TEN THOUSAND) OR THE AMOUNT PAID BY CUSTOMER TO SIGNALAYER HEREUNDER DURING THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
12.1 Informal Resolution
Before filing a claim, each Party agrees to try to resolve the dispute by contacting the other Party through the notice procedures in Section 13.6. If a dispute is not resolved within 30 (thirty) days of notice, Customer or Signalayer may bring a formal proceeding.
Customer and Signalayer agree to resolve any claims relating to this Agreement or the Services through final and binding arbitration, except as set forth below. The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules. The arbitration will be held in New York (NY), or any other location both parties agree to in writing.
12.3 NO CLASS ACTIONS
Customer may only resolve disputes with Signalayer on an individual basis and will not bring a claim in a class, consolidated or representative action. Class arbitrations, class actions, private attorney general actions and consolidation with other arbitrations are not allowed.
13.1 Modification of Terms
Signalayer may revise this Agreement from time to time and the most current version will always be posted on the Signalayer website - http://signalayer.com/service. If a revision, in Signalayer's sole discretion, is material, Signalayer will notify Customer (by, for example, sending an email to the email address associated with the applicable account). Other revisions may be posted to Signalayer's blog or service terms page, and Customer is responsible for checking these postings regularly. By continuing to access or use the Services after revisions become effective, Customer agrees to be bound by the revised Agreement. If Customer does not agree to the revised Agreement terms, Customer may terminate the Services within 30 (thirty) days of receiving notice of the change.
13.2 Entire Agreement
This Agreement supersedes any prior agreements or understandings between the Parties, and constitutes the entire Agreement between the Parties related to this subject matter. All attachments to the Agreement, Customer invoices, and Order Forms executed by the Parties, are hereby incorporated into the Agreement by this reference.
13.3 Interpretation of Conflicting Terms
If there is a conflict between the documents that make up this Agreement, the documents will control in the following order: the invoice, the Order Form, the Agreement. The terms and conditions of this Agreement will be considered the confidential information of Signalayer, and Customer will not disclose the information to any third parties. Customer agrees that any terms and conditions on a Customer purchase order will not apply to this Agreement and are null and void. If End Users are required to click through terms of service in order to use the Services, those click through terms are subordinate to this Agreement and this Agreement will control if there is a conflict.
13.4 Governing law
THE AGREEMENT WILL BE GOVERNED BY DELAWARE LAW EXCEPT FOR ITS CONFLICTS OF LAWS PRINCIPLES.
Unenforceable provisions will be modified to reflect the parties' intention and only to the extent necessary to make them enforceable, and the remaining provisions of the Agreement will remain in full effect.
Notices must be sent via email and are deemed given when received. Notices to Customer may also be sent to the applicable account email address and are deemed given when sent. Notices to Signalayer must be sent to Signalayer Legal at [email protected]
A waiver of any default is not a waiver of any subsequent default.
Customer may not assign or transfer this Agreement or any rights or obligations under this Agreement without the written consent of Signalayer. Signalayer may not assign this Agreement without providing notice to Customer, except Signalayer may assign this Agreement or any rights or obligations under this Agreement to an Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets without providing notice. Any other attempt to transfer or assign is void.
13.9 No Agency
Signalayer and Customer are not legal partners or agents, but are independent contractors.
Signalayer will remain liable for all acts or omissions of its Subcontractors or Sub-processors, and for any subcontracted obligations.
13.11 Force Majeure
Except for payment obligations, neither Signalayer nor Customer will be liable for inadequate performance to the extent caused by a condition that was beyond the Party's reasonable control (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance).
13.12 No Third-Party Beneficiaries
There are no third-party beneficiaries to this Agreement. Without limiting this section, a Customer's End Users are not third-party beneficiaries to Customer's rights under this Agreement.
"Account Data" means the account and contact information submitted to the Services by Customer or End Users.
"Administrator" means the Customer-designated technical End User who administers the Services to End Users on Customer's behalf. Administrators may be able to access, disclose, restrict or remove Customer Data in or from End User Accounts. Administrators may also have the ability to monitor, restrict, or terminate access to End User Accounts.
"Affiliate" means any entity that controls, is controlled by or is under common control with a Party, where "control" means the ability to direct the management and policies of an entity.
"Beta Services" means services or features identified as alpha, beta, preview, early access, or evaluation, or words or phrases with similar meanings.
"Customer Data and/or Submitted Information and Materials" means Stored Data, Account Data, and messages, comments, structured data, photos, and other content submitted to the Services by Customer or End Users.
"Customer Domains" means Customer's Internet domain names.
"Effective Date" means the date this Agreement is accepted by Customer.
"End Users" means users of Customer's Services account. End Users may include Customer's and its Affiliate's employees and consultants.
"End User Account" means a Signalayer hosted account established by Customer through the Services for an End User.
"Fees" means the amounts invoiced to Customer by Signalayer for the Services as described on the Order Form.
"Initial Services Term" means the term for the applicable Services beginning on the Provisioning Date and continuing for the duration set forth on the Order Form.
"Intellectual Property Rights" means current and future worldwide rights under patent, copyright, trade secret, trademark, moral rights, and other similar rights.
"Order Form" means the ordering document, or ordering page, for the Services.
"Provisioning Date" is the date upon which Signalayer makes the Services available to Customer.
"Renewal Term" means, unless otherwise agreed to in writing by the Parties, the 12 (twelve)-month renewal term following either the Services Initial Term, or a previous Renewal Term. Renewal Terms are set forth on the Order Form.
"Security Emergency" means: (i) use of the Services that do or could disrupt the Services, other customers' use of the Services, or the infrastructure used to provide the Services; or (ii) unauthorized third-party access to the Services.
"Services" means the services ordered by Customer and provided by Signalayer to Customer, which are described at https://www.signalayer.com/ or other link that Signalayer may provide.
"Services Term" means the Initial Services Term and all Renewal Terms for the applicable Services.
"Software" means the client software provided as part of the Services.
"Stored Data" means the files uploaded to the Services using the Software by Customer or End Users.
"Subcontractor" means an entity to whom Signalayer subcontracts any of its obligations under this Agreement.
"Sub-processor" means an entity who agrees to process Stored Data on Signalayer's behalf, or on behalf of another Signalayer sub-processor, in order to provide the Services.
"Taxes" means any sales, use, value added, goods and services, consumption, excise, local stamp, or other tax, (including but not limited to ISS, CIDE, PIS, CONFINS), duty or other charge of any kind or nature excluding tax that is based on Signalayer's net income, associated with the Services or Software, including any related penalties or interest.
"Term" means the term of the Agreement, which will begin on the Effective Date and continue until the earlier of: (i) the end of the Services Term; or (ii) the Agreement is terminated as set forth herein.
"Third-Party Request" means a request from a third-party for records relating to an End User's use of the Services including information in or from an End User Account, or from Customer's Services account. Third-Party Requests may include valid search warrants, court orders, or subpoenas, or any other request for which there is written consent from End Users, or an End User's authorized representative, permitting a disclosure.
"Withholding Taxes" mean any Taxes Customer is required by law to withhold, which are then imposed on Signalayer, or Customer's reseller, as applicable.