Terms Of Service

IMPORTANT – READ CAREFULY THE FOLLOWING TERMS OF SERVICE (THESE “TERMS”). BEFORE ACCESSING AND USING THE PRODUCT . BY CLICKING THE "I AGREE" BUTTON OR USING THE PRODUCT, YOU AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, CLICK THE "CANCEL" BUTTON AND DO NOT USE OR ACCESS THE PRODUCT. DO NOT SELECT "I AGREE," OR USE THE PRODUCT UNTIL YOU HAVE CAREFULLY READ, UNDERSTOOD, AND AGREED TO THESE TERMS. FURTHERMORE, YOU HEREBY WAIVE ANY RIGHTS OR REQUIREMENTS UNDER ANY LAWS OR REGULATIONS IN ANY JURISDICTION WHICH REQUIRE AN ORIGINAL (NON-ELECTRONIC) SIGNATURE OR DELIVERY OR RETENTION OF NON-ELECTRONIC RECORDS, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW.

THESE TERMS CONSTITUTE THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU AND THE COMPANY ON WHOSE BEHALF YOU ARE USING AND ACCESSING THE PRODUCT IN THE SCOPE OF YOUR EMPLOYMENT (COLLECTIVELY, “YOU” OR “YOUR”) AND TOTANGO LTD. AND/OR ITS AFFILIATES ("TOTANGO"), WHICH SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATION RELATING TO THE SUBJECT MATTER OF THESE TERMS.

ACCESS AND USE RIGHTS.

Totango grants to you the right to access and use Totango’s ServicePulse (the “Product”)for the purpose of evaluating this product for your internal business purposes (the “Evaluation License”) for an evaluation period of 1 month from the date hereof (the “Evaluation Period”), which period may be extended at Totango’s sole discretion upon your request. At the end of the Evaluation Period you will cease using the Product, or if you wish to continue using the Product, your continued use of the Productafter the Evaluation Period shall be subject to paying the appropriate license fees and entering into Totango’s standard end user agreement.

NO FEES OR SERVICES

Totango shall not be entitled to any fees for the Evaluation License and Totango shall be under no obligation to provide you with any services. Neither party shall have any obligation with respect to any further license of the Product or any other Totango product. 
 

OWNERSHIP AND CONFIDENTIALITY.

The Product is owned by Totango (or its third party licensees) and is protected by intellectual property laws and international treaty provisions. Totango (or its third party providers) retains all title, right, copyright (and any other applicable intellectual property right), and interest in and to the Product, including all documentation, translations, enhancements, improvements or other modifications made to or derived from the Product.
You shall own all data loaded by you to the Product, and Totango shall have no rights with respect thereto.

Each party agrees to retain in confidence all information disclosed by a party to the other party pursuant to these Terms which is either designated as proprietary and/or confidential, or by the nature of the circumstances surrounding disclosure, should reasonably be understood to be confidential (the “Confidential Information”). You acknowledge and agree that the Productand all information provided to you in accordance with these Terms shall be deemed Totango’s Confidential Information. Totango agrees that all data loaded by you to the Product shall be deemed your Confidential Information. Each party agrees to: (a) strictly preserve and protect the confidentiality of the other party’s Confidential Information; and (b) refrain from using the other party’s Confidential Information except as contemplated herein.

LIMITATION OF LIABILITY AND WARRANTY.

THE PRODUCT IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. TOTANGO DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, ACCURACY, RELIABILITY, AND NON-INFRINGEMENT, WITH RESPECT TO THE PRODUCT, AND ANY ACCOMPANYING DOCUMENTATION. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THESE TERMS.

EXCEPT IN RELATION TO A BREACH BY TOTANGO OF ITS OBLIGATIONS UNDER SECTION ‎4 ABOVE, TOTANGO SHALL NOT BE LIABLE UNDER ANY LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY, FOR ANY DAMAGES OR LOSSES SUFFERED BY YOU. FOR GREATER CLARITY, TOTANGO SHALL NOT BE LIABLE FOR HEREUNDER FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL OR EXEMPLARY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF GOODWILL, ACCURACY OF RESULTS, COMPUTER FAILURE, MALFUNCTION), ARISING OUT OF THE USE OF OR INABILITY TO USE THE PRODUCT, EVEN IF TOTANGO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

RESTRICTED USE.

You may not copy, distribute, sell, sublicense, reverse engineer, decompile, or disassemble the Product. The Product is provided to you for your evaluation only and you shall use the Product only for that purpose. You may not remove from view any copyrights legend, trademark or confidentiality notice appearing on the Product or Product output.

TERMINATION

These Terms shall commence on the date hereof and shall terminate at the end of the Evaluation Period, unless earlier terminated as set forth herein. Totango may, at its option, terminate these Terms immediately if you: (i) use the Product other than as authorized herein; or (ii) otherwise fail to comply with any terms and conditions of these Terms. Sections ‎3 through ‎8 shall survive the termination of these Terms.   

GOVERNING LAW

These Terms shall be governed by and construed in accordance with the laws of the State of New York, without regard to the conflicts of laws provisions thereof. The United Nations Convention for the International Sale of Goods shall not apply, and is expressly excluded.

GENERAL.

These Terms represent the complete agreement concerning the Product between you and Totango and supersede all prior agreements and representations between you and Totango. They may be amended only in writing and executed by you and Totango. If any provision of these Terms is held to be unenforceable for any reason, such provision shall be construed only to the extent necessary to make it enforceable and the remainder of these Terms shall remain valid and enforceable according to their terms. The failure of Totango to act with respect to a breach of these Terms by you or others does not constitute a waiver and shall not limit the rights of Totango with respect to such breach or any subsequent breaches. These Terms are personal to you and may not be assigned or transferred for any reason whatsoever (by operation of law or otherwise) without the consent of Totango and any action or conduct in violation of the foregoing shall be void and without effect. Totango expressly reserves the right to assign these Terms.

Last updated: October 21, 2012