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These Sample Ox Customer Terms of Service (the "Customer Terms") describe your rights and responsibilities when using Our Sample Ox online tools and mobile applications (the "Services"). You should read the entire Customer Terms carefully before accessing, downloading, and/or using the Service. If you are a Customer (defined below), these Customer Terms govern your access and use of Our Services. If you are invited to a digital space created by a subscription where a group of users may access the Services (the "Organization") set up by a Customer, the Sample Ox Authorized User Terms of Service (the "Authorized User Terms") govern your access and use of Our Services.
These "Customer Terms" Form a Part of a Binding "Contract"
These Customer Terms, the Sample Ox Customer and Authorized User Acceptable Use Policy and, if applicable, a Customer Terms Amendment signed by both parties, together form a binding "Contract" between the Customer and Lean Sensory Systems, Inc., a New York corporation, doing business as DraughtLab. "We", "Our" and "Us" refers to DraughtLab.
Your Agreement On Behalf of the "Customer"
If you purchase a subscription, access a trial subscription (whether created by the Customer or Us), invite users to your "Organization" (the digital space created by a subscription where a group of users may access the Services), or use or allow the use of the Organization after being notified of a change to these Customer Terms you acknowledge your understanding of the then current Contract and agree to the Contract on behalf of the Customer. Please make sure you have the authority to enter into a Contract on behalf of the Customer before proceeding.
Who is the "Customer"
The "Customer" is the group (company, society, association, etc.) that you represent in agreeing to the Contract. If you are not affiliated with a group, you the individual will be the Customer setting-up the Organization. The Customer can modify and re-assign roles in your Organization (including your role) and otherwise exercise its rights under the Contract.
What This Means
Individuals authorized by the Customer to access the Services (an "Authorized User") may submit content or information to the Services, such as event data, images, photos, messages, reviews, folders, data, text and other types of works ("Customer Content"), and the Customer may provide Us with instructions on what to do with it. For example, the Customer may allow or revoke access to the Services and manage Authorized User permissions. These decisions and instructions may result in the access, use, disclosure, modification or deletion of some or all Customer Content.
The Customer will (a) inform Authorized Users of all Customer policies and practices that are relevant to their use of the Services; and (b) ensure the transfer and processing of Customer Content under the Contract is lawful.
What is a Subscription
A subscription (including trial subscriptions) allows Authorized Users to access an Organization and the Services. Each Authorized User must agree to the Authorized User Terms.
Deciding to Purchase
We may share information about Our future product plans. Our public statements about these product plans are an expression of intent, but do not rely on them when deciding to purchase. The decision to purchase the Services should be based on the functionality available at the time you make your purchase.
We Love Feedback
Suggestions and other feedback from Our customers, their Authorized Users and public users help make the Services better. If the Customer or any Authorized User sends Us any feedback or suggestions regarding the Services, there is a chance We will use it, so the Customer grants Us (for itself and all of its Authorized Users and other Customer personnel) an unlimited, irrevocable, perpetual, sublicensable, transferable, royalty-free license to use any and all such feedback or suggestions for any purpose without any obligation or compensation to the Customer, any Authorized User or other Customer personnel. While We may not choose to implement all suggestions, We appreciate them nonetheless.
Use of the Services
Customers must comply with the Contract and ensure that its Authorized Users comply with the Contract and Authorized User Terms. We may review conduct for compliance purposes, but We have no obligation to do so. We are not responsible for the contents of Customer Content or the way the Customer or its Authorized Users choose to use the Services. The Services are not intended for, and should not be accessed or used by, anyone under the age of sixteen (16). For the use of Services that may involve the consumption of alcohol by an Authorized User, you must be of legal age to consume alcohol in the jurisdiction in which the consumption occurs and the Customer must ensure that all its Authorized Users who use the Organization, or use that part of the Organization in which such Services are offered, at which individuals are allowed to legally drink alcoholic beverages. The Customer is solely responsible for assuring high speed internet service for itself and its Authorized Users in order to access and use the Services.
Our Removal Rights
If there is a violation of the Contract that can be remedied by the removal of certain Customer Content, We will typically ask the Customer to remove that content. However, We may directly remove that content if the Customer does not remove the content, or if We believe there is a credible risk of harm to Us, the Services, Authorized Users, public users and/or any third-parties.
For Customers that purchase Our Services, fees are specified at sign-up, in the online tools and, if provided, in the quote document. Fees must be paid in advance and fees paid are non-refundable, except as expressly stated in the Contract. If a Customer switches any subscription to a different plan, the Customer will remain responsible for any unpaid fees under the previous plan. If We agree to invoice the Customer by email, full payment must be received within 30 days from the invoice date. Fees are stated exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, user or withholding taxes, assessable by any jurisdiction (collectively, "Taxes"). The Customer will be responsible for paying all Taxes associated with its purchase.
Any credits that may accrue to a Customer's account (for example, from a promotion or from a downgrade of a subscription plan), will expire following expiration or termination of the applicable Contract, will have no currency or exchange value, and will not be transferable or refundable.
If any fees owed to Us by a Customer (excluding amounts disputed in good faith) are 7 days or more overdue, We may, without limiting Our other rights and remedies, disable access to Our Services, until those amounts are paid in full, or until a mutually agreed upon payment schedule is reached between Us and the Customer. The Customer acknowledges and agrees that disabling access to the Services will result in a loss of access to Customer and the Customer's authorized Users and the Services will be unavailable until access is restored. The Customer must pay for all reasonable costs We incur to collect any past due amounts, including reasonable attorneys' fees and other legal fees and costs.
Providing the Services
We will (a) make the Services available to the Customer and its Authorized Users as described in the Contract; and (b) not use or process Customer Content for any purpose, other than as stated in the Contract, without the Customer's prior written instructions; provided, however, that "prior written instructions" will be deemed to include the use of the Services by Authorized Users and any processing related to such Services or otherwise necessary for the performance of the Contract.
We will ensure that (a) the Services perform in accordance with the Contract; and (b) subject to the "Non-Payment" section, We will not materially decrease the functionality of the Services during a subscription term. For any breach of Our responsibilities set forth in this section, the Customer's exclusive remedies are those described in the sections title "Termination for Cause" and "Effects of Termination".
Keeping the Services Available
We will use commercially reasonable efforts to make sure the Services are available 24 hours a day, 7 days a week, excluding planned downtime. We expect planned downtime to be infrequent but will endeavor to provide the Customer with advanced notice if We expect the downtime to exceed 10 continuous minutes. If Our Contract with the Customer offers specific uptime commitments paired with credits and We fall short of Our commitment, those credits will serve as liquidated damages and will be the Customer's sole remedy for the downtime and related inconvenience.
Protecting Customer Content
The protection of Customer Content is a priority for Us. We have implemented commercially reasonable industry standard technical, administrative, and physical safeguards designed to protect Customer Content. Those safeguards include measures for preventing unauthorized access, use, modification, deletion and disclosure of Customer Content by Our personnel. Before sharing Customer Content with any of Our third-party service providers, We will ensure that the third-party has reasonable safeguards for maintaining the confidentiality and security of Customer Content and preventing authorized access. The Customer bears sole responsibility for adequate security and protection of Customer Content when in the Customer's or its representatives' or agents' possession or control. We are not responsible for what Customer's Authorized Users do with Customer Content.
We may use Our employees, contractors, and third-party affiliates in exercising Our rights and performing Our obligations under the Contract. We will be responsible for Our employees, contractors, and third-party affiliates compliance with Our obligations under the Contract.
You Own Your Content
The Customer retains ownership of all Customer Content submitted to the Services by the Customer or any of its Authorized Users. Subject to the terms and conditions of the Contract, the Customer (for itself and all of its Authorized Users) grants Us a worldwide, non-exclusive, perpetual and limited-term license to access, use, process, copy, distribute, perform, export and display Customer Content as necessary (a) to provide, maintain and update the Services; (b) to prevent or address service, security, support or technical issues; (c) as required by law or as permitted by the Sample Ox Data Request Policy; and (d) as expressly permitted in writing by the Customer. The Customer represents and warrants that it has secured all rights in and to the Customer Content from its Authorized Users as may be necessary to grant this license.
We Own Our Content
We own and will continue to own Our Services, including all related intellectual property rights. We may make software components available, via app stores or other channels, as part of the Services. We grant to the Customer a non-sublicensable, non-transferable, non-exclusive, limited license for the Customer and its Authorized Users to use the object code version of these components, but solely as necessary to use the Services and in accordance with the Contract and the Authorized User Terms. All of Our rights not expressly granted by this license are hereby retained.
The Customer acknowledges and agrees that all content presented in the Services, excluding Customer Content, are protected by copyrights, trademarks, patents or other proprietary rights owed by Us, Our suppliers and/or other third-parties with whom Customer and its Authorized Users may come in contact. Sample Ox and the names, logos, and icons of all Our products, software, and the Services may be either trademarks or registered trademarks of Lean Sensory Systems, Inc. The names of actual companies and products may be the trademarks of their respective owners. Any rights not expressly granted in this Contract are reserved.
If you own intellectual property or have authority to act on behalf of the owner of intellectual property and want to report a claim that a third-party is infringing upon that property on or through Our Service, please follow the instructions under Our Sample Ox Intellectual Property Policy.
As further described below, a paid or trial subscription has a term that may expire or be terminated. The Contract remains effective until all subscriptions under the Contract have expired or been terminated or the Contract itself terminates. Termination of the Contract will terminate all subscriptions and trials under the Contract.
Unless your Contract says something different, (a) all subscriptions automatically renew (without the need to purchase a new subscription) for additional periods equal to the preceding term; and (b) at the current price, provided We notify you at least 30 days before a price change takes effect. If the Customer does not agree to the price change, the Customer must cancel their subscription prior to renewal. Either party can give the other notice of non-renewal at least 30 days before the end of a subscription term to stop the subscriptions from automatically renewing.
Termination for Cause
We or the Customer may terminate the Contract on notice to the other party if the other party materially breaches the Contract and such breach is not cured within 30 days after the non-breaching party provides notice of the breach. The Customer is responsible for its Authorized Users, including any breaches of this Contract caused by its Authorized Users. We may terminate the Contract immediately on notice to the Customer if We reasonably believe that the Services are being used by the Customer or its Authorized Users in violation of applicable law.
Effect of Termination
Upon any termination for cause by the Customer, We will refund the Customer any prepaid fees covering the term of all subscriptions after the effective date of termination. Upon any termination for cause by Us, the Customer will pay any unpaid fees covering the remainder of the term of those subscriptions after the effective date of termination. In no event will any termination relieve the Customer of the obligation to pay any fees payable to Us for the period prior to the effective date of termination.
Data Portability and Deletion
During the term of a Customer's subscriptions, the Customer will be permitted to export or share Customer Content from the services. The Customer acknowledges and agrees that the ability to export or share Customer Content may be limited or unavailable depending upon the type of subscription in effect. Following termination of an Customer's subscription, We will have no obligation to maintain or provide and Customer Content and may thereafter, unless legally prohibited, delete all Customer Content in Our systems or otherwise in Our possession or under Our control. If a Customer would like to initiate a deletion of all Customer Content, they should contact Us at firstname.lastname@example.org.
The Customer represents and warrants that it has validly entered into the Contract and has the legal power to do so. The Customer further represents and warrants that it is responsible for the conduct of its Authorized Users and their compliance with the terms of this Contract and the Authorized User Terms.
EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, THE SERVICES AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CUSTOMER ACKNOWLEDGES THAT WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. YOU MAY HAVE CERTAIN RIGHTS UNDER YOUR LOCAL LAW. NOTHING IN THIS AGREEMENT IS INTENDED TO AFFECT THOSE RIGHTS IF THEY ARE APPLICABLE.
OTHER THAN IN CONNECTION WITH A PARTY'S INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT WILL EITHER CUSTOMER'S OR OUR AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE CONTRACT OR THE AUTHORIZED USER TERMS (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER IN THE ONE MONTH PRECEDING THE LAST EVENT GIVING RISE TO LIABILITY. THE FOREGOING WILL NOT LIMIT CUSTOMER'S PAYMENT OBLIGATIONS UNDER THE "PAYMENT TERMS" SECTION ABOVE.
IN NO EVENT WILL EITHER CUSTOMER OR US HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY THIRD-PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
Additionally, the Customer is responsible for all login credentials, including usernames and passwords, for administrator accounts as well as the accounts of its Authorized Users. We will not be responsible for any damages, losses or liability to the Customer, Authorized Users, or anyone else if such information is not kept confidential by the Customer or its Authorized Users, or if such information is correctly provided by an unauthorized third-party logging into and accessing the Services.
The limitations under this "Limitation of Liability" section apply with respect to all legal theories, whether in contract, tort or otherwise, and to the extent permitted by law. The provisions of this "Limitation of Liability" section allocate the risks under this Contract between the parties, and the parties have relied on these limitations in determining whether to enter into this Contract and the pricing for the Services.
Our Indemnification of the Customer
We will defend the Customer from and against any and all third-party claims, actions, suits, proceedings, and demands alleging the that the use of the Services as permitted under the Contract infringes or misappropriates a third-party's intellectual property rights (a "Claim Against the Customer"), and will indemnify the Customer for all reasonable attorney's fees incurred and damages and other costs finally awarded against the Customer in connection with or as a result of a final non-appealable judgment from a court of competent jurisdiction or settlement We approve of in connection with a Claim Against the Customer; provided, however, that We will have no liability if a Claim Against the Customer arises from (a) Customer Content or (b) any modification, combination or development of the Services that is not performed by Us, including without limitation the use of any application programing interface (API). The Customer must provide Us with prompt written notice of any Claim Against the Customer and allow Us the right to assume the exclusive defense and control and Customer must cooperate with any reasonable requests assisting Our defense and settlement of such matters. This section states Our sole liability with respect to, and the Customer's exclusive remedy against Us for any Claim Against the Customer.
Your Indemnification of Us
The Customer will defend Us from and against any and all third-party claims, actions, suits, proceedings, and demands arising from or related to the Customer's or any of its Authorized Users' violation of the Contract or the Authorized User Terms (a "Claim Against Us"), and will indemnify Us for all reasonable attorney's fees incurred and damages and other costs finally awarded against Us in connection with or as a result of a final judgment from a court of competent jurisdiction or settlement the Customer approves of in connection with a Claim Against Us. We must provide the Customer with a prompt written notice of any Claim Against Us and allow the Customer the right to assume the exclusive defense and control and We must cooperate with any reasonable requests assisting the Customer's defense and settlement of such matter. This section states your sole liability with respect to, and Our exclusive remedy against the Customer for any Claim Against Us.
Limitation of Indemnifications
Notwithstanding anything contained in the preceding two paragraphs, (a) an indemnified party will always be free to choose its own counsel if it pays for the cost of such counsel; and (b) no settlement may be entered into by an indemnifying party without the express written consent of the indemnified party (such consent not to be unreasonably withheld), if (i) the third-party asserting the claim is a government agency, (ii) the settlement arguably involves the making of admissions by the indemnified parties, (iii) the settlement does not include a full release of liability for the indemnified parties, or (iv) the settlement includes terms other than a full release of liability for the indemnified parties and the payment of money.
Each party ("Disclosing Party") may disclose "Confidential Information" to the other party ("Receiving Party") in connection with the Contract, which is anything that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure including non-public business, product, technology and marketing information. Confidential Information of the Customer includes Customer Content. If something is labeled "Confidential" that's a clear indicator to the Receiving Party that the material is confidential. Notwithstanding the above, Confidential Information does not include information that (a) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; or (c) is received from a third-party without breach of any obligation owed to the Disclosing Party.
Protection and Use of Confidential Information
The Receiving Party will (a) take at least reasonable measures, and no less than the measures Customer uses to protect its own Confidential Information, to prevent the unauthorized disclosure or use of Confidential Information, and limit access to those employees, affiliates and contractors who need to know such information in connection with the Contract; and (b) not use or disclose any Confidential Information of the Disclosing Party for any purpose outside the scope of this Contract. Nothing above will prevent either party from sharing Confidential Information with financial and legal advisors; provided, however, that the advisors are bound to confidentiality obligations at least as restrictive as those in the Contract.
Compelled Access or Disclosure
The Receiving Party may access or disclose Confidential Information of the Disclosing Party if it is required by law; provided, however, that the Receiving Party gives the Disclosing Party prior notice of the compelled access or disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the access or disclosure. Without limiting the foregoing, please review the Sample Ox Data Request Policy for details on how requests may be made for the disclosure of Customer Content and how We will handle those requests. If the Receiving Party is compelled by law to access or disclose the Disclosing Party's Confidential Information, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing access to such Confidential Information as well as the reasonable cost for any support provided in connection with the Disclosing Party seeking a protective order or confidential treatment for the Confidential Information to be produced.
The sections titled "We Love Feedback", "You Own Your Content", "We Own Our Content", "Effect of Termination", "Disclaimer of Warranties", "Limitation of Liability", "Our Indemnification of the Customer", "Your Indemnification of Us", "Limitation of Indemnifications", "Confidentiality" and "Survival," and all the provisions under the general heading "General Provisions" will survive any termination or expiration of the Contract.
Neither We nor the Customer will be liable by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of a party, which may include denial-of-service attacks, a failure by a third-party hosting provider or utility provider, strikes, shortages, riots, fires, acts of God, war, terrorism, and governmental action.
Relationship of the Parties
The parties are independent contractors. The Contract does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. There are no third-party beneficiaries to the Contract.
Email and In-service Messages
Except as otherwise set forth herein, all notices under the Contract will be by email or We may instead choose to provide notice to the Customer by messaging through the Services. Notices to Us must be sent to email@example.com. Notices will be deemed to have been duly given (a) the next business day after it is sent, in the case of notices through email; and (b) the same day, in the case of notices through the Services.
As Our business evolves, We may change these Customer Terms. If We make a material change to the Contract, We will provide the Customer with reasonable notice prior to the change taking effect, either by emailing such notice to the email address associated with Customer's account or by messaging Customer through the Services. The Customer can review the most current version of the Customer Terms at any time by visiting this page and by visiting the most current versions of the other pages that are referenced in the Contract. The materially revised Contract will become effective on the date set forth in Our notice, and all other changes will become effective upon posting of the change. If Customer (or any Authorized User) accesses or uses the Services after the effective date, that use will constitute Customer's acceptance of any revised terms and conditions.
No failure or delay by either party in exercising any right under the Contract will constitute a waiver of that right. No waiver under the Contract will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver.
The Contract will be enforced to the fullest extent permitted under applicable law. If any provision of the Contract is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the parties' objectives set forth in the original provision to the fullest extent permitted by law and the remaining provisions of the Contract will remain in effect.
Neither party may assign or delegate any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign the Contract in its entirety, without consent of the other party, to a corporate affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. The Customer will keep its billing and contact information current at all times by notifying Us of any changes. Any purported assignment in violation of this section is void ab initio. A party's sole remedy for any purported assignment by the other party in breach of this section will be, at the non-assigning party's election, termination of the Contract upon written notice to the assigning party. Subject to the foregoing, the Contract will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
The parties will mutually attempt to settle any disagreements through amiable negotiations. If the disagreement cannot be settled through negotiations, then the Contract, and any disputes arising out of or related hereto, will be governed exclusively by the applicable the laws of the State of New York, without regard to conflicts of laws, rules or the United Nations Convention on the International Sale of Goods. Each party hereby agree to submit to the exclusive jurisdiction of the Supreme Court of the State of New York, with venue in Monroe County, New York, or of the United States District Court for the Western District of New York with venue in Monroe County, New York. In any action or proceeding to enforce rights under the Contract, the prevailing party will be entitled to recover its reasonable costs and attorney's fees.
Third-party Websites, Content and Services
The Customer and Authorized Users may be able to access third-party websites, content or services via the Services ("Third-party Materials"). The Customer acknowledges and agrees that We are not responsible and do not assume any liability for the accuracy, legality, or any other aspect of these Third-party Materials. The Customer is solely responsible for its and its Authorized Users' dealings with third parties. The Customer and its Authorized Users' use of Third-party Materials may be subject to that third-party's terms and conditions. The ability to access such third-party materials is provided merely as a convenience and does not imply endorsement of, or association with, the site or party by Us, or any warranty of any kind, either express or implied.
The Contract, which includes by definition these Customer Terms and all the documents (webpages) incorporated by reference and any Customer Terms Amendment(if applicable), constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Without limiting the foregoing, the Contract supersedes the terms of any online agreement electronically accepted by Customer or any Authorized Users. However, to the extent of any conflict or inconsistency between the provisions in these Customer Terms and any other documents or pages referenced in these Customer Terms, the following order of precedence will apply: (1) the terms of any Customer Terms Amendment (if any), (2) the Customer Terms and lastly (3) any other documents or pages referenced in the Customer Terms. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or any other Customer order documentation will be incorporated into or form any part of the Contract and all such terms or conditions will be null and void.
Export Regulation and Geographic Restrictions
The Services may be subject to United States export control laws, including the US Export Administration Act and its associated regulations. The Customer or its Authorized Users shall not, directly or indirectly, export, re-export or release the Services to, or make the Services accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation. The Customer and its Authorized Users shall comply with all applicable United States federal and applicable foreign laws, regulations and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing or otherwise making the Services available outside the United States. The Customer acknowledges that the ability to access all or some of the Customer Content and the Services outside of the United States and that access thereto may not be legal by certain persons or in certain countries. If you access the Customer Content and the Services from outside the United States, you are responsible for compliance with local laws regulations and rules.