1. ACCEPTANCE OF TERMS. “disrupt-IT” is a software as a service (SaaS) product offered by disrupt-IT LLC, a California company headquartered at: 451 Vermont Street, San Francisco, CA 94107.
By accepting this TOS or by accessing or using the Service, you agree to be bound by this TOS.
As used in this Agreement, the following capitalized terms, whether used in singular or plural forms, have the following meanings:
“Administrators” – those who manage disrupt-IT features (“Administrators”) (Owners and Administrators, collectively “Administrative Users”)
“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity.
“Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Customer Data” means all electronic data or information submitted by Customer to the Services.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“Members” means users who are invited to join an existing SLINGR instance that has already been created in the Service by an Administrator (“Members”)
“Owners” includes Primary Owners who initially set up the Service and other
Owners that are granted ownership privileges by the Primary Owner.
“Services” means the online, web-based applications and platform services provided by disrupt-IT via http://www.disrupt-IT.com and/or other designated websites sub-domains that are ordered by Customer online, but excluding Third Party Applications.
“Third-Party Applications” means online, web-based applications and offline software products that are provided by third parties, interoperate with the Services, and are identified as third-party applications.
“Help and Support” means the online user guide for the Services, accessible via http://www.disrupt-IT.com/disrupt-IT-support, as updated from time to time.
“Users“ and “You” encompasses all users who are authorized by Customer to use the Services, for whom subscriptions to the Services have been purchased, and who have been supplied User identifications and passwords by Customer (or by disrupt-IT at Customer’s request). Users may include but are not limited to Customer’s employees, consultants, contractors and agents, or third parties with whom Customer transacts business.
3.1. Provision of Services. Following subscription to disrupt-IT shall make the Services available for access and use by Customer pursuant to this Agreement. Customer’s purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by disrupt-IT regarding future functionality or features.
3.2. User Subscriptions. Services are purchased, and rights to use the Services are granted and priced on the basis described in the subscription description online. User subscriptions may be reassigned to new Users replacing former Users who no longer require ongoing use of the Services. User subscriptions and passwords and login credentials for a User may not be shared by or among more than one User.
4. USE OF THE SERVICES
4.1 disrupt-IT Responsibilities. disrupt-IT shall: (i) provide to Customer basic support for the Services at no additional charge, and/or upgraded support if purchased separately, and (ii) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for: (a) planned downtime or (b) any unavailability caused by circumstances beyond disrupt-IT reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving disrupt-IT employees) (collectively, “Force Majeure Events”), or power outages, telecommunications disruptions, Internet service provider failures or delays.
4.2. Customer’s Responsibilities. Customer shall (i) be responsible for all Users’ compliance with this Agreement and all User activity on or through the Services and all activities conducted through Customer’s account with disrupt-IT, (ii) be solely responsible for the accuracy, quality, integrity and legality of Customer Data and of the means by which Customer acquired Customer Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, maintain confidentiality and security of Customer’s account access, passwords and login credentials, and notify disrupt-IT promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with this Agreement, the User Guide and applicable laws and government regulations. Customer shall not (a) make the Services available or allow access to the Services to any person or party other than Users for whom subscriptions have been purchased and passwords and login credentials have been assigned, (b) sell, resell, rent or lease the Services or use the Services to provide service bureau data processing services to third parties, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to gain unauthorized access or exceed the scope of authorized access to the Services or their related systems or networks.
4.3. Usage Limitations. In no event shall Customer access the Services on any environment outside the hosted environment maintained and offered by disrupt-IT, and in no event shall Customer physically or personally possess or control any copy of the software or any related source code, object code, User Guide or technical documentation except as made available for authorized access under this Agreement by disrupt-IT. The Services shall be subject to such other limitations as set forth in an Order Form.
5. THIRD-PARTY PROVIDERS
5.1. Acquisition of Third-Party Products and Services. disrupt-IT may offer Third-Party Applications for resale to Customer disrupt-IT subscription. Any other acquisition by Customer of third-party products or services not expressly offered by disrupt-IT, including but not limited to Third-Party Applications and implementation, customization and other consulting services, and any exchange of data between Customer and any third-party provider, is solely governed by Customer and the applicable third-party provider’s agreement and disrupt-IT assumes no responsibility or obligation with respect thereto. disrupt-IT does not warrant or support third-party products or services, whether or not they are designated by disrupt-IT as “certified” or otherwise.
5.2. Third-Party Applications and Customer Data. If Customer installs or enables Third-Party Applications for use with Services, Customer acknowledges that disrupt-IT may allow providers of those Third-Party Applications to access Customer Data as required for the interoperation of such Third-Party Applications with the Services. disrupt-IT shall not be responsible for any disclosure, modification or deletion of Customer Data resulting from any such access by Third-Party Application providers. The Services allow Customer to restrict Users from installing or enabling such Third-Party Applications for use with the Services.
5.3. Slack and Google Services. Service features that interoperate with Google services depend on the continuing availability of the Slack and Google API’s and programs for use with the Services. If either Slack or Google Inc. ceases to make the Slack or Google API’s or programs available on reasonable terms for the Services, disrupt-IT may cease providing such Service features without entitling Customer to any refund, credit, or other compensation.
FEES AND PAYMENT FOR SERVICES
6.1. User Fees. Customer shall pay all fees specified in subscription sign-up process. Except as otherwise specified, (i) fees are quoted and payable in United States dollars (ii) fees are based on Services purchased and not actual usage, (iii) fees are calculated on a monthly basis, (iv) payment obligations are non-cancellable and fees paid are non-refundable.
6.2. Payment. All payments shall be by charges to Customer’s credit card provided to disrupt-IT, on the first day of each monthly payment period. Customer authorizes disrupt-IT to make such charges on such credit card for all Services. Customer is responsible for maintaining complete and accurate billing and contact information in the Services.
6.3. Overdue Charges. If any charges are not received from Customer by the due date (except charges then under reasonable and good faith dispute), then at disrupt-IT discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) disrupt-IT may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 6.2 (Payment). In addition, on each occasion any authorized credit card charge is denied by Customer’s bank, Customer shall pay disrupt-IT a late charge of $US50.00.
6.4. Charges 30 or More Days Overdue. If any charge owing by Customer under this or any other agreement for Services is 30 or more days overdue (except charges then under reasonable and good faith dispute), disrupt-IT may, without limiting disrupt-IT other rights and remedies, accelerate Customer’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Customer’s access to Services until such amounts are paid in full.
6.5. Taxes. Unless otherwise stated, disrupt-IT fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes“). Customer is responsible for paying all Taxes associated with Customer’s purchases hereunder. If disrupt-IT has the legal obligation to pay or collect Taxes for which Customer is responsible under this paragraph, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides disrupt-IT with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, disrupt-IT is solely responsible for taxes assessable against it based on disrupt-IT income, property and employees.
7. PROPRIETARY RIGHTS
7.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, disrupt-IT reserves all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
7.2. Restrictions. Customer shall not (i) permit any party to access the Services except for Users as permitted herein or in an Order Form, (ii) create derivate works based on the Services, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on Customer’s own intranets or otherwise for Customer’s own internal business purposes, (iv) reverse engineer, decompile, or disassemble the Services or attempt to discern the programming code enabling the Services, or (v) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.
7.3. Ownership of Customer Data. As between disrupt-IT and Customer, Customer exclusively owns all rights, title and interest in and to all of Customer Data.
7.4. Suggestions. disrupt-IT shall have an unrestricted right to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Users, but excluding any Customer Data or Confidential Information of Customer.
7.5. Federal Government End Use Provisions. disrupt-IT provides the Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (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 Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with disrupt-IT to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
8.1. Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a Party (“Disclosing Party“) to the other Party (“Receiving Party“), whether orally, electronically or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Customer’s Confidential Information shall include Customer Data; disrupt-IT Confidential Information shall include the Services, including all software programming, technical information, User Guides, functionality, architecture and layout, and pricing associated with subscriptions to the Services; and Confidential Information of each Party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such Party. However, Confidential Information (other than Customer Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
8.2. Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this TOS, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this TOS and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
8.3. Protection of Customer Data. Without limiting the above, disrupt-IT shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. disrupt-IT shall not (a) modify Customer Data, (b) disclose Customer Data except as compelled by law in accordance with Section 8.4 (Compelled Disclosure) or as expressly permitted in writing by Customer, or (c) access Customer Data except to provide the Services or prevent or address service or technical problems, or at Customer’s request in connection with customer support matters.
8.4. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
9. WARRANTIES AND DISCLAIMERS
9.1. disrupt-IT Warranties. disrupt-IT warrants that (i) the Services shall perform materially in accordance with the description at www.disrupt-IT.com, and (ii) subject to Section 4.3 (Slack and Google and Services), the functionality of the Services will not be materially decreased during a subscription term. For any breach of either such warranty, Customer’s exclusive remedy shall be for disrupt-IT to re-perform or repair the Services to make same conform with the foregoing warranty, and if disrupt-IT is unable to repair the Services, Customer’s sole and exclusive remedy shall be to terminate their subscription and obtain a refund for unused portion of the subscription term as provided in Section 11.3 (Termination for Cause) and Section 11.4 (Refund or Payment upon Termination) below. disrupt-IT shall not be responsible for any warranty claims to the extent a defect or nonconformance in the Service is caused by any party other than disrupt-IT, a Force Majeure Event, or Customer’s use of the Services not in compliance with the law, this Agreement or the User Guide
9.2. Mutual Warranties. Each Party represents and warrants that (i) it has the legal power to agree to this TOS, and (ii) it will not transmit to the other Party any Malicious Code (except for Malicious Code previously transmitted to the warranting Party by the other Party).
9.3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. DISRUPT-IT DOES NOT WARRANT THAT THE SERVICES WILL BE ERROR FREE, WILL OPERATE WITHOUT INTERRUPTION OR WILL MEET CUSTOMER’S REQUIREMENTS.
10. MUTUAL INDEMNIFICATION
10.1. Indemnification by disrupt-IT. disrupt-IT shall defend Customer against any claim, demand, suit, or proceeding (“Claim“) made or brought against Customer by an unaffiliated third party alleging that the use of the Services as permitted hereunder infringes or mis-appropriates the intellectual property rights of a third party, and shall indemnify Customer for any damages finally awarded against, and for reasonable attorney’s fees incurred by, Customer in connection with any such Claim; provided, that Customer (a) promptly gives disrupt-IT written notice of the Claim; (b) gives disrupt-IT sole control of the defense and settlement of the Claim (provided that disrupt-IT may not settle any Claim unless the settlement unconditionally releases Customer of all liability); and (c) provides to disrupt-IT all reasonable assistance, at disrupt-ITs expense.
10.2. Indemnification by Customer. Customer shall defend disrupt-IT against any Claim made or brought against disrupt-IT by a third party alleging that Customer Data, or Customer’s use of the Services in violation of this TOS or Customer’s use of any Third-Party Application or other product or service, infringes or mis-appropriates the intellectual property rights of a third party, breaches a contract, or violates applicable law, and shall indemnify disrupt-IT for any damages finally awarded against, and for reasonable attorney’s fees incurred by, disrupt-IT in connection with any such Claim; provided, that disrupt-IT (a) promptly gives Customer written notice of the Claim; (b) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle any Claim unless the settlement unconditionally release Idea2 of all liability); and (c) provides to Customer all reasonable assistance, at disrupt-IT’s expense.
10.3. Exclusive Remedy. This Section 9 states the indemnifying Party’s sole liability to, and the indemnified Party’s exclusive remedy against, the other Party for any type of Claim described in this Section 9.
11. LIMITATION OF LIABILITY
11.1. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO this TOS, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER OR, WITH RESPECT TO ANY SINGLE INCIDENT, THE LESSER OF $US10,000 OR THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT. THE FOREGOING SHALL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 5 (FEES AND PAYMENT FOR SERVICES).
11.2. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER 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 SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
11.3 Exceptions. The limitations, disclaimers and exclusions of liability shall not apply to a Party’s liabilities arising under an indemnification obligation hereunder, or to Customer’s exceeding the scope of rights to and permitted use of the Services or violation of the use restrictions and prohibitions related to the Services.
12. TERM AND TERMINATION
12.1. Term of Service. This TOS commences on the Effective Date and continues until all User subscriptions granted in accordance with this TOS have expired or been terminated.
12.2. Term of Purchased User Subscriptions. User subscriptions purchased by Customer commence on the Subscription Commencement Date specified by sign-up process, in the case of the initial User subscriptions, and on the start date stated in the applicable Order Form for any subsequently-subscribed Users, and continue for the subscription term specified therein.
12.3. Termination for Cause. A Party may terminate their subscription for cause: (i) upon 30 days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
12.4. Refund or Payment upon Termination. Upon any termination for cause by Customer under Section 11.3(i) above, 10.3. Exclusive Remedy. This Section 9 states the indemnifying Party’s sole liability to, and the indemnified Party’s exclusive remedy against, the other Party for any type of Claim described in this Section 9.
12.5. Return of Confidential Information. Upon termination of subscription, Customer is responsible for exporting Customer Data from the disrupt-IT user interface. After 30-day period, disrupt-IT shall have no obligation to maintain or provide any of Customer Data and shall thereafter, unless legally prohibited, delete all of Customer Data in disrupt-IT systems or otherwise in disrupt-IT‘s possession or under disrupt-IT’s control.
12.6. Surviving Provisions. Sections 6 (Fees and Payment for Services), 7 (Proprietary Rights), 8 (Confidentiality), 9.3 (Disclaimer), 10 (Mutual Indemnification), 11 (Limitation of Liability), 12.4 (Refund or Payment upon Termination), 12.5 (Return of Customer Data), 12.7 (Migration Upon Bankruptcy or Cessation of Business), and 13 (General Provisions) shall survive any termination or expiration of this Agreement.
13. GENERAL PROVISIONS
13.1. Notices. disrupt-IT may give notice by means of a general notice on the Service, electronic mail to Customer’s e-mail address on record in disrupt-IT’s account information.
13.2. Export Compliance. Each Party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services. Without limiting the foregoing, (i) each Party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) Customer shall not permit Users to access or use Services in violation of any U.S. export embargo, prohibition or restriction.
13.3. Relationship of the Parties. The Parties are independent contractors. This TOS does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
13.4. No Third-Party Beneficiaries. There are no third-party beneficiaries to this TOS.
13.5. Waiver and Cumulative Remedies. No failure or delay by either Party in exercising any right under this TOS shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity.
13.6. Severability. If any provision of this TOS is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this TOS shall remain in effect.
13.7. Attorney Fees. In the event of any action between Customer and disrupt-IT regarding this TOS, the Party substantially prevailing in such action shall be entitled to an award of its reasonable attorney fees and other costs incurred in such action, and such attorneys’ fees shall not be subject to any limitation or disclaimer of liability specified I this Agreement.
13.8. Assignment. Neither Party may assign 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 this TOS in its entirety, without consent of the other Party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other Party. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
13.9. Governing Law. this TOS shall be construed in accordance with the laws of the State of California and of the United States. The Parties stipulate that the sole forum and venue for any action relating to this TOS shall the California State Courts and the United States District Court located in the City and County of San Francisco, California. Each Party hereby waives any right to jury trial in connection with any action or litigation in any way relating to or arising out of this TOS.
13.10. Entire TOS. This TOS constitutes the entire agreement between the Parties.