Terms Of Service App

PLEASE READ THE FOLLOWING CAREFULLY BEFORE ACCEPTING THESE TERMS AND REGISTERING FOR, ACCESSING AND/OR USING THE TOTANGO SERVICE.

By selecting the box “I have read and agree to the terms and conditions”, or otherwise accessing and using the Totango Service, you acknowledge that you, on your own behalf as an individual and on behalf of your employer or another legal entity (collectively “you” or “your“), have read and understood and agree to comply with the terms and conditions below (the “Terms“), and are entering into a binding legal agreement with Totango Ltd. (“Totango“). You represent and warrant that you are at least 18 years old and, if you are entering into these Terms on behalf of your employer or other legal entity, that you have full authority to bind said employer or other legal entity to these Terms. If you do not agree to comply with and be bound by these Terms or do not have authority to bind your employer or other legal entity, please do not accept these Terms or access or use the Service. You hereby waive any applicable rights to require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent not prohibited under applicable law.

1. Description of the Service. The Totango Service (the “Service“), as further described on the website www.totango.com (the “Site“), enables you to track, and provides you with a global view of, the activities of customers that use your web service or other software services offering. The Service is made available to you through the Site and includes (i) the Site; (ii) any software that is made available to you by Totango and accessed by you in connection with the Service; (iii) the products, services, and features made available or provided to you by Totango in connection with the Service; and (iv) the content, text, documents, descriptions, products, graphics, photos, sounds, videos, interactive features, trademarks, service marks and logos, contained in or made available through the Service.

2. Subscription to the Service. Subject to your compliance with these Terms, and payment of applicable fees, Totango hereby grants you, and you accept, a worldwide, non-exclusive, non-transferable, non-sublicensable, and fully revocable right to access and use the Service during the Term (defined below) for your internal business purposes only. Your subscription to the Service is limited to the number of your end users designated in the Order Form (“End Users“). “Order Form” means Totango’s then current order form that you enter into with Totango prior to registering for the Service.

3. Restrictions on Use. You must not, and shall not allow any permitted End User to: (i) circumvent, disable or otherwise interfere with security-related features of the Service or features that prevent or restrict use or copying of any content or that enforce limitations on use of the Service; (ii) allow any third party to use the Service; (iii) use the Service to process data on behalf of any third party; (iv) give, sell, rent, lease, timeshare, sublicense, disclose, publish, assign, market, transfer or distribute any portion of the Service to any third party, including, but not limited to your affiliates, or use the Service in any service bureau arrangement; (v) reverse engineer, decompile or disassemble the Service or any components thereof, except to the extent such acts are required to be permitted by applicable law; (vi) disclose or publish the results of any benchmark tests run on the Service; (vii) use any robot, spider, scraper, or other automated means to access the Service for any purpose; (viii) take any action that imposes or may impose (at Totango’s sole discretion) an unreasonable or disproportionately large load on the Totango infrastructure; (ix) interfere or attempt to interfere with the integrity or proper working of the Service, or any related activities; (x) modify, translate, patch, alter, change or create any derivative works of the Service, or any part thereof; (xi) disclose your Account (defined below) user names or passwords to any third party; (xii) remove, deface, obscure, or alter Totango’s or any third party’s copyright notices, trademarks, or other proprietary rights affixed to or provided as part of the Service, or use or display logos of the Service differing from Totango’s own without Totango’s prior written approval; and/or (xiii) use the Service in any unlawful manner or in breach of these Terms.

4. Account. In order to use the Service, you have to create an account (“Account“). You must not allow anyone other than an authorized End User to access and use the Account. You acknowledge and agree (i) not to exceed the aggregate number of authorized End Users or any other Units (defined below) designated in the applicable Order Form unless you first notify Totango in writing and pay Totango the required additional subscription fees; (ii) that the login details for each End User may only be used by that End User, and that multiple people may not share the same login details; (iii) to provide accurate and complete Account and login information; (iv) to keep, and ensure that End Users keep, all Account login details and passwords secure at all times; (v) that, as between you and Totango, you remain solely responsible and liable for the activity that occurs in connection with your Account, and (vii) to promptly notify Totango in writing if you become aware of any unauthorized access or use of the Account or Service. Without derogating from your payment obligations, you may cancel your Account at any time by following the options within the Service. “Units” means any measuring unit, in addition to End Users, described in the applicable Order Form upon which the fees set forth in the Order Form are calculated.

5. Customer Data.

5.1. You may choose to provide, post, or make accessible to Totango, data or information about you, your employees, customers, or any third party (“Data“), and Totango may store such Data on your behalf, all in connection with your use of the Service. You hereby provide Totango a limited non-exclusive, non-transferable license to use, upload, display, copy and store Data solely in connection with providing the Service to you.

5.2. You represent and warrant that (i) you own or have obtained the right to all intellectual property rights subsisting in the Data, and have the right to provide Totango the license granted herein to such Data; and (ii) the Data does not infringe or violate any patents, copyrights, trademarks or other intellectual property rights, or misappropriate the trade secret, or violate the privacy rights of any third party. As between you and Totango, you retain exclusive ownership of the Data. You acknowledge and agree that you remain solely responsible and liable for the Data. You may download your Data at any time during the Term, or as otherwise set forth herein, provided you comply with these Terms and Totango’s security requirements.

5.3. Totango shall maintain generally accepted industry safeguards to protect the security and confidentiality of your Data. We will maintain any personally identifiable information that we collect and/or receive in connection with the Service in accordance with our Privacy Policy (defined below).

6. Title. Title and full, exclusive ownership rights of the Service (and all parts thereof), and all reproductions, corrections, modifications, enhancements and improvements, and all related patent rights, copyrights, trade secrets, trademarks, service marks, related goodwill, including data related your usage thereof, and Totango’s intellectual property, and any rights therein not explicitly granted to you hereunder, are reserved to and shall remain solely and exclusively proprietary to Totango (or its third party licensors).

7. Term. The Service is provided on a pay-as-you-go basis for the subscription period designated in the Order Form (“Subscription Period“). These Terms shall become effective on the earlier of (i) the date that you commence access to or use of the Service; or (ii) the date that we receive payment of the applicable subscription fee, and shall continue until expiration of the Subscription Period (the “Initial Term“). Notwithstanding the foregoing, these Terms shall automatically renew for successive Subscription Periods unless either party provides the other with at least fourteen (14) days written notice prior to the end of any Subscription Period of its intent not to renew, or these Terms are terminated in accordance with Section 9 herein (each a “Renewal Term“, and together with the Initial Term, the “Term“). If you continue to use the Service past any renewal date, you shall be deemed to have renewed these Terms for the corresponding Renewal Term.

8. Free Trial Period. We currently offer a free, no-obligations trial period of the Service (“Trial Period“). The Trial Period shall commence on the date that you commence access or use of the Service and will conclude at the end of the trial period displayed on the Site (as amended from time to time), or sooner if (i) you upgrade your account by beginning to pay the applicable subscription fees, or (ii) your use of the Service is terminated in accordance with these Terms. You acknowledge and agree that these Terms are applicable and binding upon you during the Trial Period and that Totango (i) does not make any commitments in connection with the Service; and (ii) may send you, subject to your opting out, communications and other notices about the Service to your email address. We reserve the right to modify, cancel and/or limit this Trial Period offer at any time.

9. Termination. Without derogating from your obligation to pay the subscription fees, you may terminate these Terms at any time by cancelling your Account. We may suspend or terminate these Terms at any time upon written notice to you in the event that you breach these Terms and, to the extent that the breach can be cured, you do not cure that breach within fourteen (14) days of said notice.

10. Effect of Termination.

10.1. Upon termination of these Terms, you will lose all access to the Service and to any Data that we may be storing in connection thereto on your behalf. It is your responsibility to download your Data prior to canceling your Account or termination of these Terms. Notwithstanding the foregoing, for a period of forty-five (45) days from the effective date of termination of these Terms we will provide you, upon your written request, with a reasonable opportunity to download your Data at a time nominated by us. We reserve the right to permanently delete from our (or our third party service provider’s) servers any Data that may be contained in your Account at any time following said forty-five (45) day period. We do not accept any liability for any deactivation of the Service or Data that is deleted in connection thereto.

10.2. This Section 10, and Sections 3, 6, 11.1, 12, 13, 14, 15 and 19 shall survive termination of these Terms.

11. Fees.

11.1. Your access to and use of the Service is subject to your timely, up-front payment in full of the subscription fees set forth in the Order Form (which are based on the amounts displayed on the Site). Totango reserves the right upon thirty (30) days notice to you to increase the subscription fees payable for the next Renewal Term(s) to Totango’s then-current subscription fees, as displayed on the Site, for access to and use of the Service.

11.2. All fees shall be paid in US Dollars, are non-refundable and are exclusive of all taxes, levies, or duties, which are your responsibility. Overdue payments shall accrue interest at the lesser of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law.

11.3. If you authorize the charging of the applicable subscription fees to your credit card, we will charge the credit card account that you authorize and will continue to charge that card (or any replacement card) during each Renewal Term. If payment is not received from your card issuer, you agree to promptly pay all amounts due upon demand.

11.4. Notwithstanding any other term herein, you may upgrade or downgrade your subscription plan level or increase or decrease the number of End Users or Units at any time provided that (i) any such change will not derogate from your payment obligations hereunder that are in effect prior to the change; (ii) you provide us with prior written notice; and (iii) you first pay any additional applicable fees at Totango’s then-current rates. If the foregoing occurs during a Subscription Period, you acknowledge that any incremental cost will be prorated over the remaining Subscription Period.

12. Warranty Disclaimer. The Service is provided on an “as is” and “as available” basis, and without warranties of any kind either express or implied. You assume all responsibility for the selection of the Service to achieve your intended results. TOTANGO HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED, IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. TOTANGO DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED. TOTANGO DOES NOT OFFER A WARRANTY OR MAKE ANY REPRESENTATION REGARDING ANY INFORMATION, RESULTS, OR ADVICE THAT YOU OBTAIN THROUGH THE SERVICE. Applicable law may not allow the exclusion of certain warranties, so to that extent such exclusions may not apply.

13. Limitation of Liability. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, TOTANGO SHALL NOT BE LIABLE FOR ANY INDIRECT, EXEMPLARY, SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOST PROFITS OR REVENUE) ARISING OUT OF THESE TERMS OR IN CONNECTION WITH THE SERVICE, EVEN IF TOTANGO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF TOTANGO FOR ANY DAMAGES UNDER THESE TERMS OR IN CONNECTION WITH THE SERVICE EXCEED THE TOTAL AMOUNT OF SUBSCRIPTION FEES PAID BY YOU FOR THE SERVICE DURING THE SIX (6) MONTHS PRIOR TO BRINGING THE CLAIM.

14. Indemnification. You agree to defend, indemnify and hold harmless Totango and our affiliates and our respective officers, directors, agents, consultants and employees from any third party claims, damages, liabilities, costs, and expenses (including reasonable attorney’s fees) arising from (i) your use of the Service; and/or (ii) your breach of these Terms.

15. Privacy Policy and Site Terms of Use. You acknowledge and agree that your (i) use of the Service, including, without limitation, Data and other information transmitted to or stored by Totango, is governed by the Totango Service privacy policy at www.totango.com/privacy (“Privacy Policy“); and (ii) your use of the Site is also subject to the Totango Site terms of use at www.totango.com/terms-of-service (“Site Terms of Use“). To the extent of any inconsistency or conflict between these Terms and the Site Terms of Use, these Terms shall prevail.

16. Marketing Activities, Use of Trademark. You hereby grant Totango the right to use, reproduce, publish, perform and display, at its sole discretion, your trademarks, service marks, trade name, and/or logo (“Your Marks“) on the Site and in Totango’s printed marketing materials, solely in connection with the Service. You retain all title in and to Your Marks. At any time, you may request in writing that Totango cease to display Your Marks and Totango will subsequently remove Your Marks from the Site and cease to use Your Marks in any future printed marketing materials.

17. Compliance with laws. Each party shall comply with all applicable laws relating in any way to its performance of its obligations under these Terms. You agree to comply fully with all applicable export laws and regulations in any jurisdiction to ensure that neither the Service nor any technical data related thereto are exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations.

18. Assignment. These Terms, and any rights granted hereunder, may not be transferred or assigned by you but may be assigned by Totango without restriction.

19. General. These Terms, the Order Form, the Site Terms of Use, and the Privacy Policy represent the complete agreement concerning the Service between You and Totango and supersede all prior agreements and representations related to the subject matter hereof. These Terms and each Order Form shall be governed by the laws of the State of California, without reference to its conflict of laws rules. The exclusive jurisdiction and venue for all disputes hereunder shall be the state and federal courts located in San Francisco County, California, and each party hereby irrevocably consents to the jurisdiction of such courts. Application of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act are excluded from these Terms. All proceedings shall be conducted in English. Notwithstanding the foregoing, Totango reserves the right to seek injunctive relief against you to enforce these Terms in any venue and court of competent jurisdiction. Section headings are provided for convenience only and have no substantive effect on construction. Except for Your obligation to pay Totango, neither party shall be liable for any failure to perform due to causes beyond its reasonable control. Notice shall be deemed effective one (1) day after being sent to either the designated fax, email, or postal address set forth in the Order Form or as displayed on the Site. Nothing herein shall be construed to create any employment relationship, partnership, joint venture or agency relationship or to authorize any party to enter into any commitment or agreement binding on the other party. If any provision is held to be unenforceable, these Terms shall be construed without such provision. The failure by a party to exercise any right hereunder shall not operate as a waiver of such party’s right to exercise such right or any other right in the future.

20. Modifications. Totango reserves the right to modify these Terms at any time by publishing revised Terms on the Site. The revised Terms shall become effective within ten (10) days of publication thereof.