Masskom, Inc. ("Masskom") provides its Service (as defined below) to you through its web site located at http://masskom.com (the "Site"), subject to this Terms of Service agreement ("TOS"). By accepting this TOS or by accessing or using the Service or Site, you acknowledge that you have read, understood, and agree to be bound by this TOS. If you are entering into this TOS on behalf of a company, business or other legal entity, you represent that you have the authority to bind such entity and its affiliates to this TOS, in which case the terms "you" or "your" shall refer to such entity and its affiliates. If you do not have such authority, or if you do not agree with this TOS, you must not accept this TOS and may not use the Service.
Masskom may change this TOS from time to time without prior notice. You can review the most current version of this TOS at any time at http://masskom.com/termsofservice. The revised terms and conditions will become effective upon posting and if you use the Service after that date, your use will constitute acceptance of the revised terms and conditions. If any change to this TOS is not acceptable to you, your only remedy is to stop accessing and using the Service.
The Service may be provided to you on a beta or evaluation basis. During such beta or evaluation period, the Service will be provided free of charge [until the date it becomes generally commercially available][for a period of _30 days_] ("Beta Period"). During the Beta Period, the Service is provided entirely "as-is" and Masskom expressly disclaims all warranties, express or implied, including without limitation the warranties in Section 6. During the Beta Period, you or Masskom may terminate your use of the Service at any time.
Description of Service. The "Service" includes (a) the Site, (b) Masskom's cloud-based corporate messaging, communication and employee awareness service, (c) all software (including the Software, as defined below), data, reports, text, images, sounds, video, and content made available through any of the foregoing (collectively referred to as the "Content"). Any new features added to or augmenting the Service are also subject to this TOS.
General Conditions/ Access and Use of the Service.
Subject to the terms and conditions of this TOS, you may access and use the Service only for lawful purposes. All rights, title and interest in and to the Service and its components (with the exception of any Devices made available to you) will remain with and belong exclusively to Masskom. You shall not (a) sublicense, resell, rent, lease, transfer, assign, time share or otherwise commercially exploit or make the Service available to any third party; (b) use the Service in any unlawful manner (including without limitation in violation of any data, privacy or export control laws) or in any manner that interferes with or disrupts the integrity or performance of the Service or its components, or (c) modify, adapt or hack the Service to, or otherwise attempt to gain unauthorized access to the Service or its related systems or networks. You shall comply with any codes of conduct, policies or other notices Masskom provides you or publishes in connection with the Service, and you shall promptly notify Masskom if you learn of a security breach related to the Service.
Any software that may be made available by Masskom in connection with the Service, including without limitation software contained on Devices("Software") contains proprietary and confidential information that is protected by applicable intellectual property and other laws. Subject to the terms and conditions of this TOS, Masskom hereby grants you a personal, non-transferable, non-sublicensable and non-exclusive right and license to use the object code of any Software on a single device solely in connection with the Service, provided that you shall not (and shall not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code or sell, assign, sublicense or otherwise transfer any right in any Software. You agree not to access the Service by any means other than through the interface that is provided by Masskom for use in accessing the Service. Any rights not expressly granted herein are reserved and no license or right to use any trademark of Masskom or any third party is granted to you in connection with the Service.
You are solely responsible for all data, information, feedback, suggestions, text, content and other materials that you stream, deliver, provide or otherwise transmit or store (hereafter "transmit(ting)") in connection with or relating to the Service ("Your Content"). You are responsible for maintaining the confidentiality of your login, password and account and for all activities that occur under your login or account. Masskom may access your account in order to respond to your requests for technical support. By transmitting Your Content on or through the Service, you hereby do and shall grant Masskom a worldwide, non-exclusive, perpetual, irrevocable, royalty free, fully paid, sublicensable and transferable license to use, modify, reproduce, distribute, display, publish and perform your Content free of charge solely to provide you the Services. Masskom has the right, but not the obligation, to monitor the Service, Content, or Your Content. You further agree that Masskom may remove or disable any Content at 2 any time for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content), or for no reason at all.
You understand that the operation of the Service, including Your Content, may be unencrypted and involve (a) transmissions over various networks; (b) changes to conform and adapt to technical requirements of connecting networks or devices and (c) transmission to Masskom's third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to operate and maintain the Service. Accordingly, you acknowledge that you bear sole responsibility for adequate security, protection and backup of Your Content. Masskom will have no liability to you for any unauthorized access or use of any of Your Content, or any corruption, deletion, destruction or loss of any of Your Content.
You acknowledge that this TOS is a contract between you and Masskom, even though it is electronic and is not physically signed by you and Masskom, and it governs your use of the Service and takes the place of any prior agreements between you and Masskom.
Masskom reserves the right to use your name and/or company name as a reference for marketing or promotional purposes on Masskom's website and in other communication with existing or potential Masskom customers. To decline Masskom this right you need to email email@example.com stating that you do not wish to be used as a reference.
Payment. You shall pay Masskom for the Service as set for within the Service or on the Site. You shall be responsible for all taxes associated with Services other than U.S. taxes based on Masskom's net income. If you provide Masskom with information regarding your credit card or other payment instrument, you represent and warrant to Masskom that such information is true and that you are authorized to use such payment instrument. You will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur. You hereby authorize Masskom to bill your payment instrument in advance on a periodic basis in accordance with the terms agreed upon by you and Masskom, and you further agrees to pay any charge so incurred. Masskom may also bill you through an invoice. All invoices must be paid within thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service.
Confidentiality; Data. Each party (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose business, technical or financial information relating to the Disclosing Party's business, which may include personally identifying information of individuals (hereinafter referred to as "Proprietary Information" of the Disclosing Party). Proprietary Information of Masskom includes non-public information regarding features, functionality and performance of the Service. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except as expressly permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required by law.
Representations and Warranties. You represent and warrant to Masskom that (i) you have full power and authority to enter into this TOS; (ii) you own all Your Content or have obtained all permissions, releases, rights or licenses required to engage in your posting and other activities (and allow Masskom to perform its obligations) in connection with the Services without obtaining any further releases or consents; (iii) Your Content and other activities in connection with the Service, and Masskom's exercise of all rights and license granted by you herein, do not and will not violate, infringe, or misappropriate any third party's copyright, trademark, right of privacy or publicity, or other personal or proprietary right, nor does Your Content contain any matter that is defamatory, obscene, unlawful, threatening, abusive, tortious, offensive or harassing; and (iv) you are eighteen (18) years of age or older.
Masskom warrants that the Devices, when provided to you by Masskom, will conform in all material respects to the applicable specifications provided by Masskom to you. Such warranty does not apply to units that have been damaged, mishandled, mistreated or used or maintained or stored other than in conformity with such specifications and Masskom's instructions. EXCEPT FOR BODILY INJURY, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF THE FOREGOING WARRANTY SHALL BE THE REPAIR OR REPLACEMENT OF OR (AT MASSKOM'S OPTION OR IF REPAIR OR REPLACEMENT IS IMPRACTICAL) REFUND FOR RETURNED NONCONFORMING UNITS FOR WHICH FULL DOCUMENTATION AND PROOF OF NON-CONFORMITY IS PROVIDED TO MASSKOM WITHIN ONE YEAR IN THE CASE OF HARDWARE COMPONENT, OR THIRTY DAYS IN THE CASE OF SOFTWARE (WHETHER OR NOT EMBEDDED), AFTER THE ORIGINAL NONCONFORMING UNITS (BUT NOT REPLACEMENTS) ARE SHIPPED BY MASSKOM.
Termination. You have the right to terminate your account at any time in accordance with the procedures set forth on the Site. Masskom reserves the right to (i) modify or discontinue, temporarily or permanently, the Service (or any part thereof) and (ii) refuse any and all current and future use of the Service, suspend or terminate your account (any part thereof) or use of the Service and remove and discard any of Your Content in the Service, for any reason, including if Masskom believes that you have violated this TOS. Masskom shall not be liable to you or any third party for any modification, suspension or discontinuation of the Service. Masskom will use good faith efforts to contact you to warn you prior to suspension or termination of your account by Masskom. All of Your Content on the Service (if any) may be permanently deleted by Masskom upon any termination of your account in its sole discretion. If Masskom terminates your account without cause and you have signed up for a fee-bearing service, Masskom will refund the pro-rated, unearned portion of any amount that you have prepaid to Masskom for such Service. However, all accrued rights to payment and the terms of Section 4-12 shall survive termination of this TOS.
DISCLAIMER OF WARRANTIES. THE SERVICE, INCLUDING THE SITE AND CONTENT, DEVICES AND ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND MASSKOM EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. YOU ACKNOWLEDGE THAT MASSKOM DOES NOT WARRANT THAT THE SERVICE OR DEVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE AND NO INFORMATION, ADVICE, SERVICES OR DEVICES OBTAINED BY YOU FROM MASSKOM OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS TOS.
LIMITATION OF LIABILITY.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL MASSKOM BE LIABLE TO YOU OR ANY THIRD PARTY FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA OR BUSINESS INTERRUPTION, OR (B) FOR ANY DIRECT DAMAGES, COSTS, LOSSES OR LIABILITIES IN EXCESS OF THE FEES ACTUALLY PAID BY YOU IN THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO YOUR CLAIM OR, IF NO FEES APPLY, ONE HUNDRED ($100) U.S. DOLLARS. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS TOS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS TOS.
Some states do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to you. IN THESE STATES, MASSKOM'S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
Indemnification. You shall defend, indemnify, and hold harmless Masskom from and against any claims, actions or demands, including without limitation reasonable legal and accounting fees, arising or resulting from your breach of this TOS, any of Your Content, or your other access, contribution to, use or misuse of the Service or Devices. Masskom shall provide notice to you of any such claim, suit or demand. Masskom reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting Masskom’s defense of such matter.
Government Matters. You may not remove or export from the United States or allow the export or re-export of the Devices, Service, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are "commercial items" and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be "commercial computer software" and "commercial computer software documentation." Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this TOS and will be prohibited except to the extent expressly permitted by the terms of this TOS.
Assignment. You may not assign this TOS without the prior written consent of Masskom, but Masskom may assign or transfer this TOS, in whole or in part, without restriction.
Governing Law. This TOS shall be governed by the laws of the State of California without regard to the principles of conflicts of law. Unless otherwise elected by Masskom in a particular instance, you hereby expressly agree to submit to the exclusive personal jurisdiction of the federal and state courts of the State of California for the purpose of resolving any dispute relating to your access to or use of the Service or Devices.
Miscellaneous. If any provision of this TOS is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this TOS will otherwise remain in full force and effect and enforceable. This TOS is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this TOS, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this TOS and you do not have any authority of any kind to bind Masskom in any respect whatsoever. In any action or proceeding to enforce rights under this TOS, the prevailing party will be entitled to recover costs and attorneys’ fees. The failure of Masskom to exercise or enforce any right or provision of this TOS shall not be a waiver of that right.