SERVICE AGREEMENT TERMS
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE ACCESSING AND USING THE SERVICE (DEFINED BELOW).
THESE SERVICE AGREEMENT TERMS (“TERMS”) GOVERN YOUR USE OF THE SERVICE UNLESS YOU AND TOTANGO, INC. (“TOTANGO”) HAVE EXECUTED A SEPARATE AGREEMENT GOVERNING USE OF THE SERVICE.
Totango is willing to provide the Service to you only upon the condition that you accept all the terms contained in these Terms. By accessing or using the Service, you have indicated that you understand and accept all of these Terms. If you are accepting these Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms, and, in such event, “you” and “your” will refer to that company or other legal entity. If you do not accept all of these Terms, then you must not accept these Terms and you may not use the Service.
1. Description of the Service. The Totango service (the “Service“), as further described at www.totango.com (the “Site“), is a complete Customer Success Platform that actively monitors information about your customer’s health and provides you with alerts and health information of your customers. The Service is accessible through the Site and through Totango’s mobile application (”App”) and includes (i) the Site; (ii) the App; (iii) any software or API that is made available to you by Totango and accessed by you in connection with the Service; (iv) the products, services, and features made available or provided to you by Totango in connection with the Service; and (v) 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” means employees and independent contractors that you may authorize to access the Service via your employee Account interface. “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, outsource, sublicense, disclose, publish, assign, market, resell, 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 with 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 you remain solely responsible and liable for the activity that occurs in connection with your Account, and the activities of your End Users on or relating to the Services, whether or not you know of such activity, and (vii) to promptly notify Totango in writing if you become aware of any unauthorized access or use of your Account or the Service. Totango may suspend or terminate any End User’s access to the Services upon notice to you in the event that Totango reasonably determines that such End User has violated these Terms or any other terms between Totango and such End User pursuant to which such End User is permitted to access and use the Service. You will ensure that all End users comply with the terms and conditions of these Terms. You will be liable for any violation of the Terms by any End User. “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.
5.1. You and your End Users may choose to provide, post, input, submit, or otherwise 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, distribute copies of, perform and display publicly, and store Data solely in connection with providing the Service.
5.2. You represent and warrant that (i) you own all Data or have all rights that are necessary to grant Totango the licensed rights in Data under these Terms; (ii) your collection of Data has and will be in compliance with all applicable laws and regulations, including without limitation those concerning data or information privacy; and (ii) neither the Data, nor the inclusion of Data in or use of Data in connection with the Service, will infringe, misappropriate or violate any Intellectual Property Rights, or violate the privacy rights, of any third party, or result in the violation of any applicable law or regulation, including without limitation those concerning data or information privacy. Totango reserves the right, but is not obligated, to remove or disable access to any Data, at any time and without notice. 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. “Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), copyrights, trademarks, trade secrets, moral rights, know-how, and any other intellectual property rights recognized in any country or jurisdiction in the world.
6. Title. The Service (and all parts thereof), all reproductions, corrections, modifications, enhancements and improvements thereto, and all data related your usage thereof, and all Intellectual Property Rights therein or relating thereto, are and will remain the exclusive property of Totango or its licensors. 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 for the subscription period designated in the Order Form (“Subscription Period“). These Terms shall become effective on the effective date of the applicable Order Form, and shall continue until expiration of the Subscription Period (the “Initial Term“), unless terminated earlier as provided in these Terms. These Terms shall automatically renew for successive Subscription Periods (each a “Renewal Term”) unless either party provides the other with at least thirty (30) days written notice prior to the end of the then-current Subscription Period of its intent not to renew. The Initial Term, together with any Renewal Terms, will be referred to collectively as the “Term“.
8. Free Trial Period. Totango currently offers a free, trial period of the Service (“Trial Period“). The Trial Period shall commence on the date that you commence access or use of the Service on a trial basis and will conclude at the end of the trial period displayed on the Site or App (as amended from time to time), or sooner if (i) you upgrade your Account by paying 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 during the Trial Period; 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 for Cause. Either party may terminate these Terms upon written notice in the event that the other party materially breaches these Terms and, to the extent that the breach can be cured, fails to cure that breach within thirty (30) days of said notice.
Rights and Obligations upon Expiration or Termination; Survival.
10.1. Upon expiration or termination of these Terms, (i) you and your End Users rights to access and use the Service will immediately terminate; (ii) you and your End Users will immediately cease all use of the Service; and (iii) each party will return and make no further use of any Confidential Information, materials, or other items (and all copies thereof) belonging to the other party. For a period of forty-five (45) days from the effective date of expiration or 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. Also upon expiration or termination of these Terms, Totango will cease use of the Customer Marks; provided, however, that (a) Totango will have a reasonable time to remove the Customer Marks from promotional materials, (b) Totango will be entitled to exhaust materials printed during the Term that include the Customer Marks, and (c) Totango will not be required to remove any such printed materials from circulation.
10.2. For the avoidance of doubt, expiration or termination of these Terms for any reason shall not relieve you from your obligation to pay Totango any outstanding payments due under these Terms and/or Order Form and Totango has the right to issue an invoice to you for any such outstanding payments. If either party terminates these Terms for cause pursuant to Section 9 herein, you will remain liable for payment of the entire subscription fee described in the applicable Order Form for the Initial Term or the applicable Renewal Term, as applicable; provided however, if you terminate these terms for cause pursuant to Section 9 herein due to Totango’s intentional or willful breach of these Terms, then you will be liable only for a prorated amount of the subscription fee described in the applicable Order Form directly attributable to your access to the Services prior to the effective date of termination.
10.3. This Section 10, and Sections 3, 6, 11.1, 12, 14, 15, 17, 18 and 19 shall survive expiration or termination of these Terms.
11.1. In consideration for Totango providing the Services, you will pay to Totango the subscription fees set forth in the Order Form, in accordance with the terms set forth in the Order Form. Totango reserves the right upon thirty (30) days’ notice to you to increase the subscription fees payable for any ensuing Renewal Term(s) to Totango’s then-current subscription fees, for access to and use of the Service.
11.2. All fees shall be paid in US Dollars, and are exclusive of all taxes, levies, duties, tariffs, and other governmental charges (including without limitation, VAT) (collectively, “Taxes”). You will be responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made hereunder, other than any taxes based on Totango’s net income. 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. Unless stated otherwise in an Order Form, Totango will invoice you quarterly in advance for all subscription fees and applicable Taxes due in that Quarter. Each invoice is due and payable thirty (30) days following the invoice date. Customer will reimburse Totango for the reasonable costs of collection, including fees and expenses of attorneys. 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 accordingly. 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 remainder of the Subscription Period.
12.1. “Confidential Information” means any information disclosed by one party to the other party that: (i) if disclosed in writing, is marked “confidential” or “proprietary” at the time of disclosure; (ii) if disclosed orally, is identified as “confidential” or “proprietary” at the time of disclosure, and is summarized in a writing sent by the disclosing party to the receiving party within thirty (30) days after any such disclosure; or (iii) under the circumstances, a person exercising reasonable business judgment would understand to be confidential or proprietary. Data is considered to be your Confidential Information, the Services are Totango’s Confidential Information, and the terms of these Terms constitute Confidential Information of both you and Totango.
12.2. The use and nondisclosure obligations and restrictions set forth in Section 12.3 will not apply to any information that: (i) is or becomes generally known to the public through no breach of these Terms by the receiving party; (ii) is rightfully known by the receiving party at the time of disclosure; (iii) is independently developed by the receiving party without use of or access to the disclosing party’s Confidential Information; or (iv) the receiving party rightfully obtains from a third party who has the right to disclose such information without breach of any confidentiality obligation to the disclosing party.
12.3. A receiving party will not use the disclosing party’s Confidential Information except as necessary for the performance or enforcement of these Terms and will not disclose such Confidential Information to any third party except to those of its employees and subcontractors who have a bona fide need to know such Confidential Information for the performance or enforcement of these Terms; provided that each such employee and subcontractor is bound by a written agreement that contains use and disclosure restrictions consistent with the terms set forth in this Section. Each receiving party will protect the disclosing party’s Confidential Information from unauthorized use and disclosure using efforts equivalent to the efforts that the receiving Party ordinarily uses with respect to its own confidential information and in no event less than a reasonable standard of care. The provisions of this Section 12.3 will remain in effect during the term of these Terms and for a period of three (3) years after the expiration or termination of these Terms.
12.4. The provisions of this Section 12 will not restrict either party from disclosing Confidential Information pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided that the party required to make such a disclosure gives reasonable notice to the other party to enable it to contest such order or requirement or limit the scope of such request. The party responding to such an order or requirement will only disclose that information that is expressly required.
13. 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.
14. Limitation of Liability. EXCEPT FOR LIABILITY ARISING FROM A BREACH OF SECTIONS 3 OR 4 OR SECTION 12, AND FOR THE PARTIES INDEMNIFICATION OBLIGATIONS IN SECTION 15, TO THE FULLEST EXTENT PERMISSIBLE BY LAW, NEITHER PARTY SHALL 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 SUCH PARTY 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 ACTUALLY PAID BY YOU AND COLLECTED BY TOTANGO FOR THE SERVICE DURING THE TWELVE (12) MONTHS PRIOR TO BRINGING THE CLAIM.
15.1. Totango will defend any suit or action brought against you to the extent that it is based upon a third party claim that the Service, as provided by Totango to you pursuant to these Terms, infringe any U.S. patent or any copyright or misappropriate any trade secret, and will pay any costs, damages and reasonable attorneys’ fees attributable to such claim awarded in final judgment against or paid in settlement by you. Totango’s obligations under this Section 15.1 are contingent upon: (a) you providing Totango with prompt written notice of such claim; (b) you providing reasonable cooperation to Totango, at Totango’s expense, in the defense and settlement of such claim; and (c) Totango having sole authority to defend or settle such claim.
15.2. If your use of the Service is, or in Totango’s opinion is likely to be, enjoined due to the type of claim specified in Section 15.1, then Totango may at its sole option and expense: (i) replace or modify the Service to make them non-infringing and of equivalent functionality; (ii) procure for you the right to continue using the Service under the terms of these Terms; or (iii) if Totango is unable to accomplish either (i) or (ii) despite using its reasonable efforts, terminate your rights and Totango’s obligation under these Terms with respect to such Service and refund to you a pro-rata portion of the fees paid for the remaining term during which you would have had access to the Service.
15.3. Exclusions. Notwithstanding the terms of Section 15.1, Totango will have no liability for any infringement or misappropriation claim of any kind to the extent that it results from: (i) the combination, operation or use of the Service with equipment, devices, software or data (including without limitation Data) not supplied by Totango, if a claim would not have occurred but for such combination, operation or use; or (ii) your or an End User’s use of the Service other than in accordance with the Terms.
15.4. Sole Remedy. THE FOREGOING STATES THE ENTIRE OBLIGATION OF TOTANGO AND ITS LICENSORS WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY THE SERVICE.
15.5. 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. Your obligations under this Section 15.5 are contingent upon: (a) Totango providing you with prompt written notice of such claim; (b) Totango providing reasonable cooperation to you, at your expense, in the defense and settlement of such claim; and (c) you having sole authority to defend or settle such claim.
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 (“Customer Marks“) on the Site, in press releases and in Totango’s printed marketing materials, solely in connection with the Service. You retain all title in and to Customer Marks, and all goodwill developed from such use shall be solely for your benefit. At any time, you may request in writing that Totango cease to display Customer Marks and Totango will subsequently remove Customer Marks from the Site and cease to use Customer Marks in any future press releases and printed marketing materials. Notwithstanding the foregoing, Totango’s obligation to cease use of the Customer Marks in accordance with the foregoing sentence will not apply if you have explicitly agreed in an Order Form or other sales contract entered into with Totango that Totango can use your Customer Marks on the Site, in press releases, or in Totango’s 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 and the Order Form, 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. Totango may need to amend and update these Terms from time to time and when Totango does so, Totango will communicate such amendments or updates to you (for example, by publishing revised Terms on the Site) so that you can review and agree to the amendments and updates. If you do not agree to such amendments and updates, you will not be able to continue to use the Services.
Last Updated: April 16, 2015