(Effective as of May 2017)
IMPORTANT – THESE TERMS OF SERVICE ARE A LEGAL AGREEMENT BETWEEN YOU (referenced herein with “you” or with “your”) AND COMPANIONLABS SYSTEMS, INC. (referenced herein as “CompanionLabs”). YOU SHOULD READ CAREFULLY THESE TERMS OF SERVICE (referenced herein as “TOS”) BECAUSE THIS TOS GOVERNS YOUR USE OF COMPANIONLABS’ ONLINE OR MOBILE SOLUTION AND RECEIPT AND USE OF RELATED SERVICES (AND ANY ASSOCIATED DATA, REPORT, OR OUTPUT FROM COMPANIONLABS) (referenced herein collectively as the “Solution” ). COMPANIONLABS IS WILLING TO LICENSE TO YOU THE RIGHT TO USE THE SOLUTION ONLY ON THE CONDITION THAT YOU AGREE TO ALL OF THE TERMS AND CONDITIONS SET FORTH IN THIS TOS.
1. LICENSE GRANT. Subject to your continued compliance with this TOS, CompanionLabs provides to you a single, revocable, limited, non-exclusive, non-transferable, and non-sublicensable license to access and use the Solution during the term of this TOS only for personal or internal business purposes. If you are using the Solution pursuant to another agreement with CompanionLabs or on behalf of an entity, please note that this TOS provides only a license to use pursuant solely to the associated account. Nothing herein alters, modifies, or changes any other agreement(s) with CompanionLabs.
2. RESTRICTIONS ON USE. All rights not expressly granted under this TOS are hereby reserved to CompanionLabs. Accordingly, except as expressly and unambiguously authorized herein, you therefore may not modify, reproduce, duplicate, copy, download, store, further transmit, disseminate, transfer, disassemble, reverse engineer, decompile, extract source code, broadcast, publish, remove or alter any proprietary notices or labels, license, sublicense, sell, mirror, frame, rent, lease, private label, grant a security interest in, create derivative works of, or otherwise exploit the Solution, or any portion of the Solution, without CompanionLab’s prior written consent.
4. USAGE OF SOLUTION OUTPUT. You will use commercially reasonable efforts to prevent unauthorized access, use, alteration, abuse, theft, or misappropriation of the Solution. You further agree that you will not use the Solution for any purpose that would cause the following laws, as amended from time to time, or similar, laws, to apply to CompanionLabs: (i) Fair Credit Reporting Act, (ii) Children’s Online Privacy Protection Act, (iii) Health Insurance Portability and Accountability Act, (iv) Financial Service Modernization Act (a.k.a. the Gramm-Leach-Bliley Act), (v) Fair and Accurate Credit Transactions Act. To reflect CompanionLab’s ownership and/or rights and interests therein, you shall ensure that proper attribution and notice appears with any use of any printout or screen shot (from the Solution or of related data, report, or output). Accordingly, you shall ensure that a notice including the following information, namely, “Copyright © CompanionLabs Systems, Inc. ” (and such other information as designated by CompanionLabs from time to time) appears in connection with any printout or screenshot.
5. GENERAL USER OBLIGATIONS. In addition to any other obligations, representations, covenants, or responsibilities stated herein or in an order, you acknowledge and agree that successful implementation of this Agreement and the Solution (from CompanionLabs) shall require your reasonable and timely cooperation and that any failure by you to fulfill your obligations may cause delays in the fulfillment by CompanionLabs of its obligations under this Agreement. Accordingly, on a reasonable basis, you shall furnish CompanionLabs with or enable access by CompanionLabs to any relevant information that pertains to the Solution or its related services in a timely manner. You acknowledges and agrees that CompanionLabs will be relieved of its obligations under this Agreement to the extent that they are affected by your failure to fulfill your obligations under this Agreement. By downloading, accessing, or using the Solution, you covenant that you that you are at least the legal age of majority and will abide by all applicable local, state, and national laws and regulations with respect to your use of the Solution and your submission or making available of any data. In addition, you agree to assume all responsibility concerning your use of the Solution (and the related access). You further covenant you will at all times provide true, accurate, current, and complete information (and updates thereto) when submitting information to CompanionLabs using, via, or with the Solution. You further represent and warrant to CompanionLabs that you have all rights and permission necessary to submit, display, or make available any data using, via, or with the Solution and have obtained all necessary consents, rights, permissions, and clearances (and provided CompanionLabs with reasonable proof thereof (if requested)) required for CompanionLabs to use such data in connection with the Solution. You acknowledge and agree that you will permit and allow CompanionLabs access to data available to you via social media networks and represent that the current terms with which you agreed to participate in the related social media network(s) provide and enable the following grant by you to CompanionLabs.
6. ACCOUNT. You may be required to register to use the Solution. Each registration is for a single (designated) user only. Registration for access to and use of the Solution may also require access credentials, such as a user name and a password, or adherence to other particular access requirements as designated by CompanionLabs in its sole discretion from time to time. If an account specifies that you enter this agreement on behalf of an entity, you represent that you have the right, power, and authority to bind such organization to this Agreement and that such entity has agreed to this Agreement and accepted that a breach by you of the terms and conditions herein shall constitute a breach by such entity. You hereby agree to consider your access credentials, such as a user name and password, as confidential information and not to disclose such information to any third party without the prior express written consent of CompanionLabs, which may be withheld in its sole discretion. You may not allow any person(s) that is not an employee of your entity to access your account. You shall immediately notify CompanionLabs if you suspect or become aware of any loss or theft of your password or any unauthorized use of your user name and password.
7. PAYMENT. You shall pay the then-applicable license, service, or subscription fee(s) (as designated by CompanionLabs) for use of the Solution (if any) or any related service(s). Any applicable trial period shall be specified by CompanionLabs. The applicable fee(s) (if any) is for the designated time period, shall be payable in advance, and shall be non-cancelable (as applicable) once you submit your order, you access or use the Solution or related service (whichever is sooner), or the designated license period begins. Unless otherwise agreed, CompanionLabs shall bill you according to your subscription plan for all fees and you shall make payment according to your subscription plan payment interval (i.e. monthly or annually) for any amounts owed under this Agreement. No more than once each calendar year, CompanionLabs may increase its fees following the designated initial license period or the end of the then-current calendar year, whichever occurs first. All fees do not include any applicable taxes, and you shall remain responsible for and shall pay all taxes, duties and levies of any kind imposed by any governmental entity with respect to use or receipt of the Solution (or related services) or the transactions contemplated under the TOS (exclusive of taxes on CompanionLabs’ net income). You shall provide copies of any and all exemption certificates to CompanionLabs if you are entitled to any exemption. All fees or expenses are in U.S. Dollars ($), and you shall utilize the directed payment method (or address). All past-due payments will accrue interest at a rate of one and one-half percent (1.5%) or the highest rate permissible by law, whichever is less, per month on the unpaid balance from the due date until paid in full. CompanionLabs also reserves the right to terminate or suspend access to the Solution or related service if you fail to pay any amounts when due. You shall reimburse CompanionLabs for all reasonable costs incurred (including reasonable attorney’s fees) in collecting past-due amounts.
8. Mobile Services. The Solution offers various tools or display functionality that are available to you via your mobile phone or other mobile computing device (collectively, “Mobile Services”). Please note that your mobile carrier’s normal messaging, data, and other rates and fees will apply to your use of the Mobile Services. Not all Mobile Services may work with all carriers or devices or in all locations. You are therefore solely responsible for checking with your mobile carrier to determine if the Mobile Services are available for your mobile devices; what restrictions, if any, may be applicable to your use of the Mobile Services; and how much such use will cost you. Nevertheless, all use of Solution shall be strictly in accordance with this TOS.
9. DATA COLLECTION, COMMUNICATIONS & UPDATES. By installing, accessing, or using the Solution, you agree to allow CompanionLabs to collect (on behalf of itself and its business partners and while this Agreement is in effect) certain information regarding your use of the Solution (including, without limitation, certain data regarding your mobile device (e.g., type of device, unique device ID, etc.), operating software, feature utilization, navigation, and personal information (e.g., name, email, etc.)). You also agree to receive electronic communications from CompanionLabs utilizing the contact information you provide through the Solution. Electronic communications may include notices about applicable fees and charges, transactional information, and other information concerning or related to the Solution or CompanionLab’s other products, solutions, or services. These electronic communications are part of your relationship with CompanionLabs and you receive them as part of your use of the Solution. You therefore hereby agree that any such notices, agreements, disclosures or other communications that we send you electronically will satisfy any legal communication requirements. Further, you understand and agree that installation of the Solution permits the downloading of updates and upgrades to the Solution.
11. FEEDBACK. CompanionLabs welcomes your feedback and suggestions about CompanionLab’s products or services or with respect to how to improve the Solution. By transmitting any suggestions, information, material, or other content (collectively, “ Feedback”) to CompanionLabs, you represent and warrant that such Feedback does not infringe or violate the intellectual property or proprietary rights of any third party (including, without limitation, patents, copyrights, or trademark rights) and that you have all rights necessary to convey to CompanionLabs and enable CompanionLabs to use such Feedback. In addition, any Feedback received by CompanionLabs will be deemed to include a royalty-free, perpetual, irrevocable, transferable, non-exclusive right and license from you for CompanionLabs to adopt, publish, reproduce, disseminate, transmit, distribute, copy, use, create derivative works of, and display (in whole or in part) worldwide, or act on such Feedback without additional approval or consideration, in any form, media, or technology now known or later developed for the full term of any rights that may exist therein, and you hereby waive any claim to the contrary.
12. PROPRIETARY RIGHTS. This TOS provides only a limited license to access and use the Solution in accordance with the terms of this TOS. Accordingly, you hereby agree that CompanionLabs transfers no ownership or intellectual property interest or title in and to the Solution or any other CompanionLabs intellectual property to you or anyone else in connection with your use of the Solution. All text, graphics, user interfaces, visual interfaces, photographs, sounds, artwork, computer code (including html code), programs, software, products, information, and documentation as well as the design, structure, selection, coordination, expression, “look and feel,” and arrangement of any content contained on or available through the Solution are exclusively owned, controlled, and/or licensed by CompanionLabs Systems, Inc. or its licensor(s) or affiliate(s). COMPANIONLABS, COMPANIONLABS SYSTEMS, COMPANIONCHATS, and all other marks identifying the products or services of CompanionLabs are proprietary trademarks of CompanionLabs Systems, Inc., and any use of such marks, including, without limitation, as domain names, account identifiers, or in connection with any search engine optimization practice(s), without the prior express written permission of CompanionLabs is hereby strictly prohibited.
13. CONFIDENTIALITY. You acknowledge and agree that the Solution contains or includes proprietary trade secrets and confidential or nonpublic information of CompanionLabs and/or its licensors (the "Confidential Information"). You agree to secure and protect the confidentiality of the Confidential Information of CompanionLabs (and/or its licensors) in a manner consistent with the maintenance of CompanionLabs’ rights therein, using at least as great a degree of care as you use to maintain the confidentiality of your own confidential information of a similar nature, but in no event using less than reasonable efforts. You shall not, nor permit any third party to, sell, transfer, publish, disclose, or otherwise make available any portion of the Confidential Information to third parties, except as expressly authorized in this TOS.
14. DISCLAIMER. THE SOLUTION IS PROVIDED ON AN “AS-IS” BASIS AND MAY INCLUDE ERRORS, OMISSIONS, OR OTHER INACCURACIES. COMPANIONLABS HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OR ANY OTHER IMPLIED WARRANTY UNDER THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT AS ENACTED BY ANY STATE. COMPANIONLABS ALSO MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE SOLUTION WILL OPERATE ERROR-FREE, UNINTERRUPTED, OR IN A MANNER THAT WILL MEET YOUR PARTICULAR REQUIREMENTS AND/OR NEEDS. YOU ASSUME THE ENTIRE RISK REGARDING THE QUALITY AND/OR PERFORMANCE OF THE SOLUTION.
15. LIMITATION OF LIABILITY. COMPANIONLABS ASSUMES NO RESPONSIBILITY OR LIABILITY FOR ANY CLAIMS THAT MAY RESULT DIRECTLY OR INDIRECTLY FROM THE STORAGE OF ANY DATA OR FROM COMMUNICATIONS OR INTERACTIONS YOU ESTABLISH WITH OTHER PERSONS OR ENTITIES, INCLUDING SOCIAL MEDIA NETWORKS. YOU EXPRESSLY ABSOLVE AND RELEASE COMPANIONLABS FROM ANY CLAIM OF HARM RESULTING FROM A CAUSE BEYOND COMPANIONLAB’S CONTROL. MOREOVER, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL COMPANIONLABS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY USE OF THE SOLUTION, WITH THE DELAY OR INABILITY TO USE THE SOLUTION, THE COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY INFORMATION, SOFTWARE FUNCTIONALITY, AND MATERIALS AVAILABLE THROUGH THE SOLUTION, WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, AND EVEN IF COMPANIONLABS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, TOTAL LIABILITY OF COMPANIONLABS FOR ANY REASON WHATSOEVER RELATED TO USE OF THE SOLUTION SHALL NOT EXCEED $1,000 (US) OR THE AMOUNT PAID BY YOU TO COMPANIONLABS (FOR USE OF THE SOLUTION) DURING THE TWELVE (12) MONTHS PRECEDING ANY CLAIM, WHICHEVER IS GREATER.
16. INDEMNIFICATION. You agree to indemnify, defend, and hold CompanionLabs (and its affiliated companies, employees, and agents) harmless from any and all claims, suits, actions, liabilities, losses, costs, damages, expenses, and any other liabilities, including without limitation attorneys’ fees, arising out of or related in any manner to your breach or alleged breach of this TOS.
17. SECURITY & ENFORCEMENT. Any actual or attempted use of the Solution by you in violation of this TOS may result in criminal and/or civil prosecution, including, without limitation, punishment under the Computer Fraud and Abuse Act of 1986 under U.S. federal law. CompanionLabs reserves the right in its sole discretion to review, monitor, and/or record any information relating to your use of the Solution (“User Information”) without any prior notice to or permission from you, including, without limitation, by archiving content and/or communications submitted to and/or sent by you through the Solution. CompanionLabs may share any User Information CompanionLabs obtains from you with any law enforcement organization in connection with any investigation or prosecution of possible criminal or unlawful activity. CompanionLabs will also disclose User Information as required by any court order and/or subpoena. In addition, CompanionLabs hereby reserves the right in its sole discretion to, at any time and without notice, modify, suspend, terminate, and/or interrupt operation of or access to the Solution, or any portion thereof, in order to protect the Solution, CompanionLabs intellectual property, CompanionLabs, or the business interests of CompanionLabs and/or its members and affiliates.
18. INJUNCTIVE RELIEF. You acknowledge that any breach, threatened or actual, of this TOS, including, without limitation, violations or infringement of CompanionLab’s intellectual property or proprietary rights, may cause irreparable injury to CompanionLabs, whereby such injury would not be quantifiable in monetary damages, and CompanionLabs would not have an adequate remedy at law. In the event of such injury or potential for such injury you therefore hereby agree that CompanionLabs shall be entitled, in addition to other available remedies, to seek and be awarded an injunction or other appropriate equitable relief from a court of competent jurisdiction restraining any breach, threatened or actual, of your obligations under any provision of this TOS.
19. GOVERNING LAW. This TOS has been made in and will be construed and enforced in accordance with the laws of the State of Ohio as applied to agreements entered into and completely performed in the State of Ohio. You agree to the personal jurisdiction by and venue in any federal or state court in the State of Ohio and waive any objection to such jurisdiction or venue and further to a jury trial in any action. You also acknowledge and agree that any applicable state law implementation of the Uniform Computer Information Transactions Act (including any available remedies or laws) shall not apply to this TOS and is hereby disclaimed. Any claim you might have against CompanionLabs must be brought within one (1) year after the cause of action arises, or such claim or cause of action is barred. In any legal proceeding brought by CompanionLabs, CompanionLabs shall have the right to seek and be awarded all reasonable attorneys' fees and costs in addition to any other relief, at law or in equity, to which CompanionLabs may be entitled.
20. TERM AND TERMINATION. This TOS will take (re-take) effect at the time you click “I ACCEPT,” download the Solution or begin using the Solution, or upon the start date of the initial time period for use of the Solution or receipt of related services, whichever is earliest. You may uninstall or delete the Solution at any time by utilizing the available uninstall or delete functionality offered by the applicable operating software or mobile device. However, by uninstalling or deleting the Solution, you will no longer be able to access the Solution’s functionality or related services and will not be entitled to any refund of any amount paid for a subscription. This TOS will terminate automatically if (i) you fail to comply with any of its terms and conditions (including to pay any amount due); or (ii) cease all use of the Solution. Termination will be effective without notice. In addition, CompanionLabs may in its sole discretion terminate this TOS upon notice to you for any or no reason. Upon termination of this TOS, any and all right(s) to use the Solution shall immediately cease and you must promptly delete or destroy all copies of the Solution in your possession or control. Sections 2, 4, 7, 9, and 11-22 will survive the termination of this TOS.
21. OTHER TERMS AND CONDITIONS. Additional notices, terms, and conditions may apply to access to or use of CompanionLab’s other products and services. If there is a conflict between this TOS and any other notices, terms, or conditions, CompanionLabs shall resolve any conflict in good faith in its sole discretion, but this TOS shall generally control with respect to accessing and using the Solution.