Date of Last Revision: November 27, 2019
Summary of revisions to Agility Terms of Service effective as of November 27, 2019:
- Excluded Types of Data: The revised TOS requires Customer’s use of the Service to comply with Payment Card Industry Data Security Standards and prohibits the storage or processing of credit card data, bank account and social security data, as well as certain sensitive or special Personal Information, in the Service. (Section 1.3 of the revised TOS)
- Purchases Through Resellers: The revised TOS provides that, if Customer subscribes to the Service through a Reseller, subscription payments will be made to the Reseller, changes to Customer’s subscription terms will be made through the Reseller and Agility Portal may share information concerning Customer’s account and subscription terms with Reseller. (Section 7.6 of the revised TOS)
- Mutual Liability Limits: The revised TOS provides that both Agility Portal’s and Customer’s maximum liability under this TOS is limited to 12 months’ of subscription fees or, if no fees apply, $100, and exclude certain indirect and special types of damages. These liability limits do not apply to indemnification claims under Section 10 or a breach by Customer of Sections 1.2 of 1.3 of this TOS. (Section 9 of the revised TOS)
- Indemnification by Agility Portal: The indemnification provision has been substantially revised to provide that Agility Portal will indemnify Customer against third-party claims to the extent they result from a claim that the Service, when used as authorized under this TOS, infringes any U.S. patent, copyright, or Trademark. This indemnity is subject to certain conditions and limitations described in Section 10. In addition, Section 10 provides that the indemnifying party will have the right to control the litigation or settlement of indemnification claims under Section 10, subject to certain conditions. (Section 10 of the revised TOS)
This summary is provided for reference only, and does not modify or enlarge Agility Portal’s and its customers’ respective rights and obligations, which shall be as set forth below in these Terms of Service.
MODIFICATIONS. AGILITY PORTAL MAY CHANGE THIS TOS FROM TIME TO TIME. IF AGILITY PORTAL DOES THIS, AGILITY PORTAL WILL INDICATE IN TEXT APPENDED TO THIS PAGE THE DATE THIS TOS WAS LAST REVISED AND, IF APPLICABLE, AGILITY PORTAL WILL POST THE MATERIAL CHANGES TO THIS TOS ON THIS PAGE. AGILITY PORTAL WILL ALSO USE COMMERCIALLY REASONABLE EFFORTS TO NOTIFY CUSTOMER, EITHER THROUGH THE SERVICE USER INTERFACE, IN AN EMAIL NOTIFICATION TO THE ACCOUNT ADMINISTRATOR EMAIL PROVIDED BY CUSTOMER IN CONNECTION WITH THE SERVICE, OR THROUGH OTHER REASONABLE MEANS. ANY SUCH CHANGES WILL BECOME EFFECTIVE UPON THE EARLIER OF (A) CUSTOMER’S USE OF THE SITE AND/OR SERVICE WITH ACTUAL KNOWLEDGE OF THE CHANGE, OR (B) FIFTEEN (15) DAYS AFTER CHANGES ARE POSTED. CUSTOMER’S CONTINUED USE OF THE SERVICE AFTER THE DATE ANY SUCH CHANGES BECOME EFFECTIVE CONSTITUTES CUSTOMER’S ACCEPTANCE OF THE NEW TOS, PROVIDED THAT DISPUTES ARISING UNDER THIS TOS WILL BE RESOLVED IN ACCORDANCE WITH THE TOS IN PLACE AT THE TIME THE FACTS GIVING RISE TO THE DISPUTE OCCURRED. NOTWITHSTANDING THE GENERALITY OF THE FOREGOING, CUSTOMER UNDERSTANDS AND ACKNOWLEDGES (I) THAT CUSTOMER IS AGREEING TO ARBITRATE DISPUTES ARISING HEREUNDER (AS DESCRIBED IN FURTHER DETAIL IN SECTION 12), AND THAT THE TERMS OF THE ARBITRATION AGREEMENT WILL NOT BE MODIFIED EXCEPT AS PROVIDED FOR IN SECTION 12 AND (II) THAT AGILITY PORTAL MAY MODIFY THE SAFEGUARDS FROM TIME TO TIME (AS DEFINED BELOW) BUT SHALL NOT MATERIALLY REDUCE THE OVERALL EFFECTIVENESS OF THE SAFEGUARDS WITHOUT CUSTOMER’S CONSENT.
- Access to Service. Subject to the terms and conditions set forth in this TOS, Agility Portal will make the Service available to Customer during the Subscription Term. If Customer purchases a subscription for a specified number of Authorized Users, Customer may not reduce the number of Authorized Users during a Subscription Term. Customer may increase the number of Authorized Users at any time, subject to an increase to Customer’s fees as provided for in Section 7.1. Customer will be responsible for compliance with this TOS by each of its Authorized Users.
- General Restrictions on Use. Customer will (i) not access the Service by any means other than through the Site, (ii) not share individual login credentials for the Service with any third party, (iii) ensure that each Authorized User has separate login credentials, (iv) not exceed the scope of Customer’s authorized use of the Service, (v) access and use the Service only for lawful and authorized purposes, and in no event in connection with competitive research or for scoping, benchmarking, developing or providing any similar or competitive product or service, (vi) not display, distribute, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sublicense, sell, resell, rent, lease, transfer, assign, timeshare or otherwise commercially exploit (other than internal business use for its intended purpose) or make the Service available to any third party, (vii) not harvest or collect email addresses or other contact information of other users from the Service by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications, (viii) not use, or permit any Authorized User to use, the Service if Customer or such Authorized User, as applicable, is under eighteen (18) years of age, and (ix) not circumvent or attempt to circumvent contractual usage restrictions.
- Restrictions on Specific Types of Use and Content. Customer agrees that (i) the Service will not be used by Customer in any manner that would require Agility Portal or the Service to be compliant with HIPAA, (ii) the Service may not be used to store, maintain, process or transmit Protected Health Information, and (iii) Agility Portal is not acting on Customer’s behalf as a Business Associate or Subcontractor. Customer will ensure that Customer’s use of the Service complies with applicable requirements of the Payment Card Industry Data Security Standards and shall not store or process credit card, bank account or social security data in the Service. Customer further agrees that it shall not use the Service to store, maintain, process or transmit any sensitive or special Personal Information that imposes specific data security or data protection obligations on Agility Portal other than those expressly provided for in the Data Protection Addendum.
- Customer Content
- Rights to Customer Content. Except for the rights expressly granted in this TOS and as between the parties to this TOS, Customer reserves all right, title and interest (including all patent, copyright, Trademark, trade secret and other intellectual property rights) in and to the Customer Content, and no right, title or interest in any Customer Content is granted to Agility Portal. Customer hereby grants to Agility Portal a worldwide, royalty-free, non-exclusive, sublicensable and transferable license to use, modify, reproduce, distribute, display, publish and perform Customer Content, and hereby authorizes Agility Portal to process such Customer Content, in each case solely to the extent necessary to provide the Service to Customer or to provide support or analysis as further described below.
- Restrictions on Customer Content. Customer will not use the Service to (or assist any third party to) email or otherwise upload any content that (i) infringes or misappropriates any intellectual property or other proprietary or privacy rights of any person, (ii) Customer does not have a right to upload under any Applicable Law or under any contractual or fiduciary relationship, (iii) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment, (iv) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, or hateful racially or ethnically or (v) in the sole judgment of Agility Portal, may cause harm to Agility Portal, the Service, the Site, or other users of Agility Portal’s products and services.
- Proprietary Rights
- Rights to Agility Portal Technology. Except for the express limited rights set forth in this TOS, Agility Portal reserves all right, title and interest (including all patent, copyright, Trademark, trade secret and other intellectual property rights) in and to Agility Portal Technology, and no right, title or interest in any Agility Portal Technology is granted to Customer. Customer acknowledges that the Service is offered as an online, hosted solution, and that Customer has no right to obtain a copy of the underlying computer code for the Service. Customer will not use any robot, spider, scraper, deep link or other similar automated data gathering or extraction tools, program, algorithm or methodology to access, acquire, copy or monitor the Service.
- Feedback. At its option, Customer may provide Feedback about the Service to Agility Portal. If Customer provides Feedback, then Customer assigns to Agility Portal all right, title, and interest in that Feedback. Customer agrees that all Feedback shall be considered non-confidential information for the purposes of this TOS.
- Service Data. Notwithstanding anything to the contrary in this TOS, Customer agrees that Agility Portal may collect Service Data, and Agility Portal may use Service Data to develop, improve, support and operate its products and services during and after the Subscription Term. This Section 3.3 does not give Agility Portal the right to publicly identify Customer as the source of any Service Data without Customer’s consent.
- Marketing. Customer hereby grants Agility Portal a worldwide, royalty-free, non-exclusive, perpetual, irrevocable, sublicensable and transferable license to use, modify, reproduce, distribute, display, publish and perform all Trademarks owned by or licensed to Customer, to identify Customer as a Agility Portal user or customer and for other advertising, marketing or promotional purposes, including on the Company’s website and in communications and collateral materials provided to existing or potential Agility Portal customers, partners and investors (collectively, “Marketing Activities”). Upon Customer’s written request, Agility Portal will promptly discontinue its use of Customer’s Trademarks in connection with any Marketing Activities.
- Account Security
- Security. At all times that Agility Portal Processes Customer Personal Information, Agility Portal will maintain the administrative, physical and technical controls, which are designed to protect the security, confidentiality and integrity of the Customer Personal Information, located at https://www.AgilityPortal.com/(“Safeguards”). Other than as provided for in this Section 4.1, Customer acknowledges that Customer bears sole responsibility for adequate security and protection of Customer Content. Customer further acknowledges that, if Customer wishes to protect Customer Content when transmitting it to Agility Portal, it is Customer’s responsibility to do so using a secure and encrypted connection.
- Access and Monitoring. Agility Portal may monitor and access Customer’s account in order to respond to Customer’s requests for technical support, to ensure proper functioning of the Service and to improve the Service and Site. Agility Portal may, but is not required to, monitor, access and disclose to law enforcement and judicial authorities information concerning Customer, Customer’s account, Authorized Users and use of the Service, and Customer Content if required (i) to protect Agility Portal, its customers, users or partners, including in connection with the enforcement of this TOS or (ii) in Agility Portal’s reasonable judgment, to avoid an actual or potential violation of Applicable Law.
- Credentials. Customer is responsible for maintaining the confidentiality of Customer’s and its Authorized Users login, password and account credentials and for all activities that occur under any such credentials. Customer will promptly notify Agility Portal if Customer learns of a security breach related to the Service, including the compromise, loss or unauthorized use of any of Customer’s login, password or account credentials.
- Confidentiality. Each party agrees (i) to use the other party’s Confidential Information only to the extent necessary to perform its obligations or exercise its rights under this TOS or, in Agility Portal’s case, as directed by Customer, (ii) to protect the confidentiality of the other party’s Confidential Information in the same manner as it protects the confidentiality of its own similar information (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information) and (iii) to disclose Confidential Information only on a need to know basis to its employees who have executed written agreements requiring them to maintain such information as confidential upon terms not materially less protective than the terms set forth in this TOS. Notwithstanding the foregoing, (x) the party receiving Confidential Information may disclose such information to the extent that such disclosure is required by Applicable Law or by order of a court or other governmental authority and (y) Agility Portal may disclose Customer’s Confidential Information to the extent provided for under Section 4.2. To the extent it is legally permitted to do so, the party receiving Confidential Information agrees to give the party disclosing Confidential Information reasonable notice of any disclosure made or to be made under clause (x) of the immediately preceding sentence so as to allow the party disclosing Confidential Information to seek a protective order or other appropriate remedy.
- Warranties. Customer agrees and warrants that (i) Customer has full power and authority to enter into this TOS and that this TOS is binding upon it and enforceable against it in accordance with its terms, (ii) Customer will comply with all Applicable Laws in connection with Customer’s access to and use of the Service and the Site, (iii) Customer is not located in a country that is subject to a U.S. government embargo, or that has been designated by the U.S. government as a “terrorist supporting” country, (iv) Customer is not listed on any U.S. government list of prohibited or restricted parties, (v) Customer owns all Customer Content or has obtained all permissions, releases, rights or licenses required to engage in Customer’s posting and other activities (and allow Agility Portal to perform its obligations and exercise its rights) in connection with the Service without obtaining any further releases or consents, (vi) Customer Content and activities undertaken by Customer in connection with the Service, and Agility Portal’s exercise of all rights and licenses granted by Customer in this TOS, do not and will not violate, infringe, or misappropriate any third party’s Trademark, right of privacy or publicity, or other personal, intellectual or proprietary right, nor does the Customer Content contain any matter that is defamatory, obscene, unlawful, threatening, abusive, tortious, offensive or harassing, (vii) Customer will comply with applicable third party terms when using the Service, (viii) Customer has provided true, accurate, and correct information to Agility Portal in connection with Customer’s account creation and use of the Service, and (ix) neither Customer nor any Authorized User is under eighteen (18) years of age.
- Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE AND THE SITE ARE PROVIDED TO CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND AGILITY PORTAL EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. AGILITY PORTAL DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE, OR WILL WORK WITH OR NOT INTERRUPT OR DAMAGE CUSTOMER’S THIRD-PARTY SERVICE OR CUSTOMER’S CONTENT (INCLUDING ANY CONTENT CUSTOMER MAY STORE ON ANY THIRD-PARTY SERVICE). NO INFORMATION, ADVICE OR SERVICES OBTAINED BY CUSTOMER FROM AGILITY PORTAL OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS TOS.
- Fees. Except with respect to any “free trial” of the Service or as otherwise provided for in any related Order Form, Customer shall select a subscription level as part of Customer’s online initial or renewal subscription process, as applicable. Customer shall be responsible for the payment of any associated subscription fees in accordance with this TOS and Agility Portal’s standard payment and billing policies. If Customer increases the number of Authorized Users during a Subscription Term, the fees for accounts for such new Authorized Users will be prorated over the remainder of the then-current Subscription Term, provided that Authorized Users added mid-month will be charged for the entire month. The pricing and payment terms applicable to any renewal Subscription Term will be the same as that during the prior Subscription Term unless Agility Portal has provided Customer with notice of any change to the pricing and/or payment terms at least sixty (60) days before the end of such prior Subscription Term, in which case any such change will be effective upon the commencement of the following renewal Subscription Term.
- Payment Terms. Customer will pay all applicable fees in accordance with this TOS and, if applicable, any related Order Form. Except as otherwise specified in this TOS or, if applicable, any related Order Form, all payment obligations are final, non-cancelable and non-changeable, and all fees paid are non-refundable.
- Credit Card Payments. If Customer elects to pay fees by credit card, Customer agrees and warrants to Agility Portal that the credit card information provided by Customer to Agility Portal is, and will be maintained as, true, complete, accurate and up to date, and that Customer is authorized to use such payment instrument in connection with its subscription for the Service. Customer agrees to pay and hereby authorizes Agility Portal to bill Customer’s credit card in advance on a periodic basis in accordance with the terms of this TOS and the applicable Order Form, if any, during the Subscription Term. Customer will not chargeback any amounts paid to Customer and will reimburse Agility Portal for any chargeback fees associated with the foregoing.
- Taxes. Fees do not include any Taxes. Customer is responsible for paying all Taxes, excluding only taxes based on Agility Portal’s net income. If Agility Portal has the legal obligation to pay or collect Taxes for which Customer is responsible under this TOS, the appropriate amount will be invoiced to and paid by Customer unless Customer provides Agility Portal with a valid tax exemption certificate authorized by the appropriate taxing authority.
- Late Payments. Any late payments will be subject to a service charge equal to 1.5% of the amount due (calculated on a monthly basis) or the maximum amount allowed by Applicable Law, whichever is less.
- Orders through Reseller. If Customer orders the Services from a Reseller, then, unless otherwise notified by Agility Portal or the Reseller, (a) fees for the Services will be set between Customer and the Reseller, and any payments will be made directly to Reseller under the Reseller Agreement; (b) the remaining provisions in this Section 7 (Payments) will not apply to the Service; (c) all changes to Customers subscription, including cancellation and changes to the number of Authorized Users shall be made by contacting Reseller; and (d) Agility Portal may share information concerning Customer’s account and subscription terms with Reseller.
- Term and Termination
- Term. Except as otherwise provided for in any related Order Form, Customer shall select a Subscription Term as part of its online initial or renewal subscription process, as the case may be. Subject to any different renewal Subscription Term that may be set forth in the Order Form, if any, and until terminated or modified in accordance with this TOS, Customer’s Subscription Term will automatically renew for additional Subscription Terms equal to the initial Subscription Term following the end of each Subscription Term.
- Termination by Customer. Customer may terminate Customer’s subscription effective as of the last day of the Subscription Term ending soonest after the date that is thirty (30) days following the date of Customer’s valid termination of its account in accordance with the procedures set forth on the Site. Customer may terminate this TOS and all related Order Forms (i) upon ten (10) days prior written notice to Agility Portal, if Agility Portal has materially breached this TOS and such breach remains uncured at the expiration of such period or (ii) immediately, if Agility Portal becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. To be effective, any such notice must expressly state the reasons for the claimed breach in sufficient detail.
- Termination by Agility Portal. Agility Portal may modify, suspend or discontinue the Service (or any part thereof) or Customer’s subscription to the Service, with or without cause, at any time immediately upon notice Customer. For this purpose, “cause” shall include (i) if Customer does not accept and agree to be bound by any modification to this TOS, (ii) if Customer has materially violated this TOS, (iii) if Agility Portal reasonably believes that Customer’s use of the Service may cause harm to Agility Portal, the Service, the Site or other users of Agility Portal’s products and services or (iv) if Customer becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Agility Portal will use good faith efforts under the circumstances to provide reasonable notice to Customer prior to termination or suspension of Customer’s account by Agility Portal pursuant to this Section 8.3.
- Effect of Termination. Except to the extent expressly set forth in Section 8.5, upon termination of this TOS for any reason, Customer will have no further right to access and use the Service or access to Customer Content. If this TOS is terminated by Agility Portal for cause or by Customer other than pursuant to the second sentence of Section 8.2, Agility Portal will be entitled to all of the fees due under this TOS for the entire Subscription Term. If this TOS is terminated by Agility Portal without cause or by Customer pursuant to the second sentence of Section 8.2, Customer will be entitled to a refund of any prepaid but unused fees.
- Post-Termination Access to Customer Content. If this TOS is terminated other than by Agility Portal for cause, then Customer may retrieve Customer Content from the Service during a thirty (30) day transition period commencing on the effective date of such termination (the “Transition Period”). If Customer retrieves Customer Content from the Service during the Transition Period, then Customer shall be responsible for, and shall have paid, all fees due under this TOS with respect to their Subscription Period and the Transition Period. This TOS will continue in full force and effect during the Transition Period solely to the extent necessary to allow Customer to retrieve Customer Content from the Service. Except to the extent expressly set forth in this Section, Agility Portal has no obligation to archive or make available Customer Content after expiration or termination of this TOS.
- Survival. The following provisions will survive expiration or termination of this TOS for any reason: Sections 1.2, 1.3, 2, 3, 5, 6, 7, 8.5, 8.6, 9, 10, 11, 12, 13 and 14.
- Limitation of Liability. EXCEPT FOR EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THE AGREEMENT OR ANY DAMAGES, COSTS, LOSSES OR LIABILITIES RESULTING FROM A BREACH BY CUSTOMER OF ITS OBLIGATIONS UNDER SECTIONS 1.2 or 1.3 OF THIS TOS, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) WILL THE LIABILITY OF EITHER PARTY ARISING OUT OF OR RELATED TO THIS ORDER FORM OR THE TERMS OF SERVICE INCLUDE (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 DAMAGES, COSTS, LOSSES OR LIABILITIES IN EXCESS OF THE FEES ACTUALLY PAID (OR, WITH RESPECT TO CLAIMS FOR FEES DUE, PAYABLE) BY CUSTOMER IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO CUSTOMER’S CLAIM OR, IF NO FEES APPLY, ONE HUNDRED U.S. DOLLARS ($100) (THE “LIABILITY CAP”). 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. THE FOREGOING DOES NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER THIS TOS.
- Mutual Indemnification.
- Indemnification by Agility Portal. Agility Portal will defend Customer against any claim, demand or proceeding made or brought by a third party (“Third-Party Claim”) against Customer alleging that the Service, when used as authorized under this TOS, infringes any U.S. patent, copyright, or Trademark, and will indemnify Customer against any liability, direct damages, cost, loss or expense, including reasonable attorneys’ fees, incurred by or awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by Agility Portal in writing of, any such Third-Party Claim against Customer. If Customer’s use of the Service is (or in Agility Portal’s opinion is likely to be) enjoined, if required by settlement or if Agility Portal determines such actions are reasonably necessary to avoid material liability, Agility Portal may, in its sole discretion: (i) substitute substantially functionally similar products or services; (ii) procure for Customer the right to continue using the Service; or if (i) and (ii) are not commercially reasonable, (iii) terminate this TOS and Customer’s subscription to the Service. The foregoing indemnification obligation of Agility Portal will not apply to the extent the applicable claim is attributable to: (A) the modification of the Service by any party other than Agility Portal; (B) the combination of the Service with products or processes not provided by Agility Portal; (C) any unauthorized use of the Service; (D) any breach of the Agreement by Customer or its Authorized Users; (E) any subscription to or use of the Service for which no Fees are paid to Agility Portal; or (F) any action arising as a result of Customer Content or any third-party services, deliverables, integrations, open source software, or components contained within the Service. THIS SECTION SETS FORTH AGILITY PORTAL’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY THIRD-PARTY CLAIM DESCRIBED IN THIS SECTION.
- Indemnification by Customer. Customer will defend Agility Portal against any Third-Party Claim against Agility Portal (i) alleging that any Customer Content, any use by Customer of the Service or any Third-Party Service, or any product or service offered by Customer in connection with or through its use of the Service, infringes any U.S. patent, copyright or Trademark or (ii) arising from Customer’s use of the Services or Customer Content in an unlawful manner or in violation of this TOS, the Documentation or any Order Form, and will indemnify Agility Portal against any liability, direct damages, cost, loss or expense, including reasonable attorneys’ fees awarded against Agility Portal as a result of, or for amounts paid by Agility Portal under a settlement approved by Customer in writing of, any such Third-Party Claim against Agility Portal. THIS SECTION SETS FORTH customer’s SOLE LIABILITY AND AGILITY PORTAL’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY THIRD-PARTY CLAIM DESCRIBED IN THIS SECTION.
- Indemnification Procedures. In the event of any potential indemnity obligation under this Section 10, the indemnified party will (i) promptly notify the indemnifying party in writing of the claim, (ii) allow the indemnifying party the right to control the investigation, defense and settlement (if applicable) of such claim at the indemnifying party’s sole cost and expense and (iii) upon request of the indemnifying party, provide all necessary cooperation at the indemnifying party’s expense. Failure by the indemnified party to notify the indemnifying party of a claim under this Section 10 will not relieve the indemnifying party of its obligations under this Section 10; however, the indemnifying party will not liable for any litigation expenses that the indemnified party incurred prior to the time when notice is given or for any damages or costs resulting from any material prejudice caused by such delay or failure to provide notice to the indemnifying party in accordance with this Section 10. The indemnifying party may not settle any claim in any matter that would require obligation on the part of the indemnified party (other than payment or ceasing to use infringing materials), or any admission of fault by the indemnified party, without the indemnified party’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed. Further, any indemnification obligation under this Section 10 will not apply if the indemnified party settles or makes any admission with respect to a claim without the indemnifying party’s prior written consent.
- Additional Limitations and Requirements
- Third-Party Services.The Service enables linking between various online third-party services such as third-party email, cloud storage, social and similar services (“Third-Party Services”). To take advantage of these feature and capabilities, Customer may be required to authenticate, register for, or log into Third-Party Services through the Service or on the websites of their respective providers. By linking Customer’s account on the Service to Customer’s account on a Third-Party Service, Customer is authorizing Agility Portal to access Customer’s Third-Party Service account (and any information, content, materials and features included therein) and use such Third-Party Service (with read and write privileges) on Customer’s behalf for the purpose of integrating the Service with such Third-Party Service. Customer’s use of the Third-Party Services is governed solely by the agreement between Customer and the provider of such Third-Party Service, and the Third-Party Services provider, and not Agility Portal, is solely responsible for such Third-Party Service. As between Customer and Agility Portal, Customer is solely responsible for securing and backing up data stored on Third-Party Services, including any data that is used to create or that is the basis of any Customer Content. The Service may provide, or third parties may provide, links or other access to third-party sites and resources on the internet (including without limitation Third-Party Services). Customer acknowledges and agrees that Agility Portal does not endorse such sites or resources and that Agility Portal will not be responsible or liable, directly or indirectly, for any damage or loss caused by Customer’s use of or reliance on any content, events, goods or services made available through any such Third-Party Service.
- Mobile Devices. The Service may include certain services that are available via a mobile device, including (i) the ability to upload content to the Service via a mobile device, (ii) the ability to browse the Service and the Site from a mobile device and (iii) the ability to access certain features through an application downloaded and installed on a mobile device (collectively, the “Mobile Services”). To the extent Customer accesses the Service through a mobile device, Customer’s wireless service carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing and using certain Mobile Services may be prohibited or restricted by Customer’s carrier, and not all Mobile Services may work with all carriers or devices.
- Apple-Enabled Software Applications. Agility Portal may offer Apple-Enabled Software for use in connection with an Apple-branded product. In addition to the other terms and conditions set forth in this TOS, the following terms and conditions apply with respect to such Apple-Enabled Software.
- Agility Portal and Customer acknowledge that this TOS is concluded between Agility Portal and Customer only, and not with Apple and that as between Agility Portal and Apple, Agility Portal, not Apple, is solely responsible for the Apple-Enabled Software and the content thereof. Customer may not use the Apple-Enabled Software in any manner that is in violation of or inconsistent with the Usage Rules set forth for Apple-Enabled Software in the App Store Agreement.
- Customer’s license to use the Apple-Enabled Software is limited to a non-transferable license to use the Apple-Enabled Software on an iOS Product that Customer owns or controls as permitted by the Usage Rules set forth in the App Store Agreement, except that the Apple-Enabled Software may be accessed, acquired and used by other accounts associated with Customer via Family Sharing or volume purchasing.
- Apple has no obligation whatsoever to provide any maintenance or support services with respect to the Apple-Enabled Software.
- Apple is not responsible for any product warranties, whether express or implied by law. In the event of any failure of the Apple-Enabled Software to conform to any applicable warranty, Customer may notify Apple, and Apple will refund the purchase price for the Apple-Enabled Software to Customer, if any; and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Enabled Software, or any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty, which will be Agility Portal’s sole responsibility, to the extent it cannot be disclaimed under applicable law.
- Agility Portal and Customer acknowledge that Agility Portal, not Apple, is responsible for addressing any claims of Customer or any third party relating to the Apple-Enabled Software or Customer’s possession and/or use of that Apple-Enabled Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple-Enabled Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- In the event of any third-party claim that the Apple-Enabled Software or Customer’s possession and use of that Apple-Enabled Software infringes that third party’s intellectual property rights, as between Agility Portal and Apple, Agility Portal, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
- Federal Government Provisions. Agility Portal provides the Service, including related software and technology, for federal government end use solely in accordance with this Section 11.4. The Service includes “commercial items,” as defined at FAR 2.101. Use of the Service by the U.S. government is limited to the license rights expressly set forth in this TOS in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Computer Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data - Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Commercial Computer Software Documentation). If a government agency needs additional rights not conveyed under this TOS, it must negotiate a mutually acceptable written addendum to this TOS specifically conveying such rights.
- Dispute Resolution By Binding Arbitration(PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS CUSTOMER’S RIGHTS.)
- Most Customer concerns can be resolved quickly and to the Customer’s satisfaction by emailing user support at support@Agility Portal.com. In the unlikely event that the Agility Portal’ support team is unable to resolve a complaint Customer may have (or if Agility Portal has not been able to resolve a dispute) such disputes shall be addressed through binding arbitration, mediation, or small claims court instead of in courts of general jurisdiction.
- Agility Portal and Customer agree to arbitrate all disputes and claims between us. This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to:
- claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory;
- claims that arose before this or any prior agreements (including, but not limited to, claims relating to advertising);
- claims that are currently the subject of purported class action litigation in which Customer is not a member of a certified class; and
- claims that may arise after the termination of this TOS
- References to “Agility Portal” and “Customer” include their respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or devices under this or prior agreements between Agility Portal and Customer. Notwithstanding the foregoing, either party may bring an individual action in small claims court. This arbitration agreement does not preclude Customer from bringing issues to the attention of federal, state or local agencies, including, for example, the Federal Communications Commission. Such agencies can, if the law allows, seek relief against Agility Portal on Customer’s behalf. Customer agrees that, by entering into this TOS, Customer and Agility Portal are each waiving the right to a trial by jury or to participate in a class action. This TOS evidence a transaction in the interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. This arbitration provision shall survive termination of this TOS.
- A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Agility Portal should be addressed to Agility Portal CRM, Inc., Attention: Legal Department, 301 Howard St., Suite 600, San Francisco, CA 94105 (“Arbitration Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand”). If Agility Portal and Customer do not reach an agreement to resolve the claim within sixty (60) calendar days after the Notice is received, Customer or Agility Portal may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Agility Portal or Customer shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which Customer or Agility Portal is entitled.
- The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this TOS, and will be administered by the AAA. The AAA Rules are available online at adr.org, by calling the AAA at 1-800-778-7879, or by writing to the Arbitration Notice Address. The arbitrator is bound by the terms of this TOS. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of the arbitration provision. Unless Agility Portal and Customer agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If Customer’s claim is for $10,000 or less, Agility Portal agrees that Customer may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If Customer’s claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. Agility Portal will pay all AAA filing, administration, and arbitrator fees for any arbitration initiated in accordance with the AAA Rules. However, if Customer initiates an arbitration in which Customer seeks more than $75,000 in damages, the payment of these fees will be governed by the AAA Rules.
- The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees and expenses at any time during the proceeding and upon request from either party made within fourteen (14) days of the arbitrator's ruling on the merits.
- The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. CUSTOMER AND AGILITY PORTAL AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN CUSTOMER’S OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both Customer and Agility Portal agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void.
- Notwithstanding any provision in this TOS to the contrary, Agility Portal agrees that if Agility Portal makes any future change to this arbitration provision (other than a change to the Arbitration Notice address) while Customer is a user of the Service, Customer may reject any such change by sending Agility Portal written notice within thirty (30) calendar days of the change to the Arbitration Notice Address provided above. By rejecting any future change, Customer is agreeing that Customer will arbitrate any dispute between us in accordance with the language of this provision
- Assignment. Customer will not assign or transfer this TOS, including any assignment or transfer by reason of merger, reorganization, sale of all or substantially all of Customer’s assets, change of control or operation of law, without Agility Portal’s prior written consent, which will not be unreasonably withheld. Agility Portal may assign this TOS to any affiliate or in the event of merger, reorganization, sale of all or substantially all of Agility Portal’s assets, change of control or operation of law.
- Governing Law; Venue; Survival of Claims. This TOS will be governed by the laws of the State of California without regard to the principles of conflicts of law (except with respect to federal preemption principles). Each party expressly agrees to submit to the exclusive personal jurisdiction of the federal and state courts located within San Francisco County, California. Customer agrees that regardless of any statute or law to the contrary, any claim or cause of action by or belonging to Customer arising out of or related to use of the Service or this TOS must be filed within twelve (12) months after such claim or cause of action arose or be forever barred. The prevailing party in any dispute hereunder will be entitled to recover from the other party its costs, expenses, and reasonable attorney fees (including any reasonable fees of expert witnesses, paralegals and other legal services providers).
- Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this TOS if such delay is caused by a labor dispute, criminal acts of third parties, shortage of materials, fire, earthquake, flood or any other event beyond the reasonable control of such party.
- Entire Agreement. This TOS, together with any related Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter, including (i) any non-disclosure or confidentiality agreement between Customer and Agility Portal and (ii) any trial agreement entered into between Customer and Agility Portal for access to the Service. To the extent of any conflict or inconsistency between the provisions in the body of this TOS and any Order Form, the terms of such Order Form will prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in a purchase order or other order documentation submitted by Customer (excluding Order Forms) will be incorporated into or form any part of this TOS, and all such terms or conditions will be null and void.
- Notice. Notice will be sent to the contact address set forth herein, and will be deemed delivered as of the date of actual receipt.
To Agility Portal: Agility Portal CRM, Inc., Attention: Customer Success, 301 Howard St., Suite 600, San Francisco, CA 94105; provided that any claim for indemnification by Agility Portal will be addressed to: Agility Portal CRM, Inc., Attention: Legal Department, 301 Howard St., Suite 600, San Francisco, CA 94105
To Customer: Customer’s address as provided in Agility Portal’s account information for Customer.
Agility Portal may give electronic notices by general notice via the Service and may give electronic notices specific to Customer by email to Customer’s e-mail address(es) on record in Agility Portal’s account information for Customer or through the notifications center of the Service. Agility Portal may give notice to Customer by means of telephone at the telephone numbers on record in Agility Portal’s account information. Customer agrees to keep all of Customer’s account information current.
- Section Headings. Section headings in this TOS are for reference purposes only, and do not modify, limit or expand any of the terms and conditions set forth in this TOS.
- Third Party Beneficiary. Apple, and Apple’s subsidiaries, are third party beneficiaries of Section 11.3 of this TOS. Apple will have the right (and will be deemed to have accepted the right) to enforce Section 11.3 of this TOS against the Customer as a third party beneficiary of this TOS.
“AAA” is used as defined in Section 12.5.
“AAA Rules” is used as defined in Section 12.5.
“Apple-Enabled Software” means software that is made available for Customer’s use in connection with Apple, Inc. (“Apple”)-branded products.
“Applicable Law” means all applicable local, state, national, foreign or international rules, regulations and laws.
“Arbitration Notice Address” is used as defined in Section 12.4.
“Authorized Users” means the individuals authorized to access and use the Service under Customer’s subscription in accordance with this TOS.
“Business Associate” is used as defined by HIPAA.
“Confidential Information” means information disclosed by or on behalf of the disclosing party to the receiving party for purposes arising out of or in connection with this TOS that is marked or identified as “confidential” or “proprietary” or under the circumstances that a person exercising reasonable business judgment would understand to be confidential or proprietary. Confidential Information of Customer includes Customer Content. Confidential Information of Agility Portal includes the terms and conditions of any Order Form. Confidential Information does not include information that is (i) in the public domain at the time of its disclosure, or which becomes public domain property through no fault of the receiving party, (ii) rightfully in the receiving party’s possession without restriction prior to disclosure, (iii) rightfully disclosed to the receiving party by a third party without restriction, (iv) independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information or (v) in the case of Customer’s Confidential Information, Service Data to the extent that such information does not contain any personally identifiable or Customer-specific information.
“Agility Portal Technology” means the Site and Service and any and all related and underlying technology and documentation, and any derivative works, modifications or improvements of any of the foregoing, including as may incorporate Feedback.
“Customer Content” means all data, data files and other information that is uploaded, submitted or published, transmitted or stored by or on behalf of Customer in connection with Customer’s use of the Service. Customer Content does not include Service Data.
“Customer Personal Information” means Customer Content that is Personal Information.
“Data Protection Addendum” means Agility Portal’s standard Data Protection Addendum located at EU General Data Protection Regulation (GDPR) Compliance.
“Demand” is used as defined in Section 12.4.
“Documentation” means the technical documentation made available by Agility Portal to Authorized Users for the purpose of operating the Service, as may be substituted or updated from time to time, but excluding any marketing information and forward-looking information concerning future releases and features.
“Feedback” means all suggestions, enhancement requests, recommendations, proposals, corrections or other feedback provided by Customer or any Authorized User related to the operation, contents or functionality of any Agility Portal Technology.
“HIPAA” means the Health Insurance Portability and Accountability Act of 1996, as amended, and the regulations promulgated thereunder.
“include” or “including” and similar expressions mean “including, but not limited to”.
“Liability Cap” is used as defined in Section 9.
“Marketing Activities” is used as defined in Section 3.4.
“Mobile Services” is used as defined in Section 11.2.
“Notice” is used as defined in Section 12.4.
“Order Form” means the ordering document(s) executed and delivered by Customer and Agility Portal that reference(s) this TOS and that specify(s) certain terms and conditions of the Service.
“Personal Information” means (i) any information about an identified or identifiable individual and (ii) information that is not specifically about an identified or identifiable individual but, when combined with other information, may identify an individual.
“Process” or “Processing” means to create, collect, receive, acquire, record, consult, alter, use, process, store, retrieve, maintain, disclose, or dispose of data or sets of data, whether or not by automated means.
“Protected Health Information” is used as defined by HIPAA.
“Reseller” means, if applicable, the authorized non-affiliate third party reseller that sells the Service to Customer.
“Reseller Agreement” means the separate agreement between Customer and Reseller regarding the Service. The Reseller Agreement is independent of and outside the scope of this TOS.
“Safeguards” is used as defined in Section 4.1.
“Service” means the Agility Portal customer relationship management services and related technologies. Service does not include Third-Party Services.
“Service Data” means query logs and other information about Customer’s use of the Service. Service Data is not Customer Content.
“Site” means website or mobile application by means of which Customer may access the Service.
“Subcontractor” is used as defined by HIPAA.
“Subscription Term” means the duration of Customer’s authorized access to the Service.
“Taxes” means all local, state, federal or foreign taxes, levies or duties of any nature, including value-added, sales, use and withholding taxes.
“Third-Party Services” is used as defined in Section 11.1.
“Third-Party Claim” is used as defined in Section 10.1.
“Trademark” means all rights in and to U.S. and foreign trademarks, service marks, trade dress, trade names, brand names, logos, trade dress, corporate names, and domain names and other similar designations of source, sponsorship, association or origin, together with the goodwill symbolized by any of the foregoing, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, these rights and all similar or equivalent rights or forms of protection in any part of the world.
“Transition Period” is used as defined in Section 8.5.