These Terms of Service (this “Agreement”) govern your access to and use of CycleIO, Inc. (“we”, “our”, or “PersistIQ”) websites and services (the “Service” or “Services”). Please read this Agreement carefully. By using any part of the Service, you acknowledge that you have read, understood and agree to be legally bound by this Agreement.
We reserve the right to update or modify this Agreement from time to time by posting updated versions of the Agreement on the PersistIQ Website, or otherwise providing notice to you, and may discontinue or revise any or all other aspects of the Service in our sole discretion. Except as otherwise provided in the Agreement, all such changes shall become effective upon the posting of the revised Agreement on the Service or at the PersistIQ Website. Your use of the Service following such notification constitutes your acceptance of the terms and conditions of this Agreement as modified. If at any time you do not agree to these terms and conditions, you must terminate your use of the Service.
Only parties that can lawfully enter into and form legal contracts may use the Service. By accepting this Agreement, you represent and warrant that you are at least eighteen (18) years old and may lawfully enter into and form binding legal contracts. If you are entering into this Agreement on behalf of an organization (for example, your employer), you warrant and represent that you are a duly authorized representative of such organization with the authority to enter into binding contracts on behalf of such organization.
PersistIQ reserves the right to use your Company name as a reference for marketing or promotional purposes on PersistIQ’s website and in other communication with existing or potential PersistIQ customers. For example, we might list your company on one of our webpages under lists of PersistIQ customers. We don’t want to list customers who don’t want to be listed, so you may send an email to firstname.lastname@example.org stating that you do not wish to be used as a reference.
The Service may not be used for the sending of unsolicited email (sometimes called "spam") in violation of applicable law or for the transmission of illegal or prohibited content.
To the extent any portion of the Service is made available for a fee, you will be required to select a payment plan and provide PersistIQ accurate information regarding your credit card or other payment instrument. You will promptly update your account information with any changes in your payment information. You agree to pay PersistIQ the amount that is specified in the applicable payment plan in accordance with the terms set forth in the Service and this TOS, and you authorize PersistIQ to bill your payment instrument in advance on a periodic basis in accordance with such terms. If you dispute any charges you must let PersistIQ know within sixty (60) days after the date that PersistIQ invoices you. All amounts paid are non-refundable and we reserve the right to change our prices in the future. If we do change prices, we will provide notice of the change on the Site or in email to you, at our option, at least 30 days before the change is to take effect regarding your use of the Service. Your continued use of the Service after the price change becomes effective constitutes your agreement to pay the changed amount. PersistIQ may choose to bill through an invoice, in which case, full payment for invoices issued must be received by the specified date or the Services may be terminated. Unpaid invoices are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. You shall be responsible for all taxes associated with Services other than U.S. taxes based on PersistIQ’s net income.
"Your Data" means any data and content stored or transmitted via the Services by or on behalf of you or your end users (which may include data you elect to import from third party services you use). This includes messages you send, files you upload, comments on files, and anything else you enter or upload into PersistIQ.
In order for us to provide the Service to you, we require that you grant us certain rights with respect to Your Data. For example, we need to be able to transmit, store and copy Your Data in order to display it to you and your teammates, to index it so you are able to search it, to make backups to prevent data loss, and so on. Your acceptance of this TOS gives us the permission to do so and grants us any such rights necessary to provide the service to you, only for the purpose of providing the service (and for no other purpose). This permission includes allowing us to use third-party service providers (such as Amazon Web Services) in the operation and administration of the service and the rights granted to us are extended to these third parties to the degree necessary in order for the service to be provided.
You hereby (i) warrant and represent that you are the owner of, or have permission from the rightful owner of, all content furnished to us or uploaded or utilized by You or Your Users in connection with the Service (collectively, the “Content”); and (ii) grant us a non-exclusive, royalty-free, transferable license to use and display such Content, as necessary to provide the Service. You retain all right, title and interest in and to the Content, except for the limited license set forth above.
You will be responsible for the accuracy, quality, integrity and legality of Your Content and of the means by which You acquired your Content. You will use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify PersistIQ promptly of any such unauthorized access or use. You will be responsible for any third party products or services used or exchanged by You in connection with the Services or any of your Content. You understand and acknowledge that PersistIQ has no obligation to review your Content.
You will use the Services only for your internal business purposes and in accordance with applicable laws, rules and regulations. You are responsible for all of your activities that occur within, through or as a result of your use of the Services. You agree that you will not use the Services for unlawful purposes or to engage in any illegal, offensive, indecent or objectionable conduct, including violation of any third party privacy or other rights.
You hereby warrant and represent that:
(i) you are the sole or designated "sender" (as such term is defined in the CAN-SPAM Act of 2003 and any rules adopted under such act (collectively, the “CAN-SPAM Act”)) of any email message sent by you using the Service, and all messages you send using the Service will comply with all requirements of the CAN-SPAM Act;
(ii) the Service will not be used for the sending of unsolicited bulk email (sometimes called "spam") in violation of the CAN-SPAM Act or other applicable law;
(iii) the Service will only be used for lawful purposes;
(iv) you will not access or otherwise use third party mailing lists or otherwise prepare or distribute unsolicited email, in connection with the Service, and you will import, access or otherwise use only lists for which all listed parties have consented to receive correspondence from you in connection with your use of the Service. Mere agreement of a person or entity to participate in a survey or register for an event is not consent to receive correspondence from you unrelated to such survey or event. You hereby covenant that you shall not use any other lists in connection with your use of the Service;
(v) you acknowledge and agree that not all email messages sent through use of the Service will be received by their intended recipients;
(vi) the "from" line of any email message sent by you using the Service will accurately and in a non-deceptive manner identify your organization, your product or your service;
(vii) the "subject" line of any email message sent by you using the Service will not contain any deceptive or misleading content regarding the overall subject matter of the email message;
(viii) you will include in any email message sent by you using the Products your valid physical address, if required by law, which may be a valid post office box meeting the registration requirements established by the United States Postal Service.
You are solely responsible for all activities that occur in Your account(s) and for the security of all of Your and passwords. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, PERSISTIQ HAS NO LIABILITY OF ANY KIND (WHETHER BY CONTRACT, TORT OR OTHERWISE) FOR ANY UNAUTHORIZED ACCESS TO YOUR OR YOUR USERS' ACCOUNTS AS A RESULT OF YOUR ACTIONS OR INACTIONS.
You acknowledge that PersistIQ and all technology and other materials relating thereto, excluding the Content (collectively, the “PersistIQ Technology”) are protected by copyrights, trademarks, trade secrets, patents, or other proprietary rights, and that these worldwide rights are valid and protected in all forms, media, and technologies existing now and hereinafter developed. You also acknowledge that the PersistIQ Technology is and shall remain the property of us or our licensors. You agree to comply with all intellectual property laws and you shall not encumber any interest in, or assert any rights to, any portion of the PersistIQ Technology. You may not modify, transmit, participate in the sale or transfer of, create derivative works based on, or reverse engineer any of the PersistIQ Technology, or use the Service or any of the PersistIQ Technology other than as expressly permitted herein.
PersistIQ shall use commercially reasonable efforts to maintain appropriate administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of your Content. PersistIQ shall not: (a) modify or access your Content except as necessary to provide the Services, prevent or resolve service or technical problems, or at Your request in connection with customer-support matters; or (b) disclose your Content except as compelled by Law or other legal proceedings, or as expressly permitted in writing by You.
YOU ACKNOWLEDGE AND AGREE THAT THE SERVICE AND ALL PERSISTIQ TECHNOLOGY IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. NONE OF THE PERSISTIQ PARTIES MAKE ANY, AND EACH HEREBY SPECIFICALLY DISCLAIMS, ANY AND ALL, REPRESENTATIONS, ENDORSEMENTS, GUARANTEES, AND WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SERVICE AND THE PERSISTIQ TECHNOLOGY, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE SERVICE OR THE PERSISTIQ TECHNOLOGY IS TO STOP USING THE SAME. NONE OF THE PERSISTIQ PARTIES GUARANTEES THE ACCURACY, COMPLETENESS, TIMELINESS, RELIABILITY, SUITABILITY OR USEFULNESS OF THE SERVICE OR ANY PERSISTIQ TECHNOLOGY. NONE OF THE PERSISTIQ PARTIES WARRANT THAT THE SERVICE OR THE PERSISTIQ TECHNOLOGY WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ANY FILES AVAILABLE FOR DOWNLOADING THROUGH THE SERVICE ARE FREE OF COMPUTER VIRUSES OR OTHER HARMFUL ELEMENTS. YOU EXPRESSLY AGREE THAT THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SERVICE AND THE PERSISTIQ TECHNOLOGY IS ASSUMED SOLELY BY YOU.
WE SHALL NOT BE IN BREACH OF THIS AGREEMENT OR RESPONSIBLE FOR DAMAGES CAUSED BY DELAYS OR FAILURE TO PERFORM, IN FULL OR IN PART, OUR OBLIGATIONS HEREUNDER, PROVIDED THAT SUCH DELAY OR FAILURE IS DUE TO FIRE, EARTHQUAKE, UNUSUALLY SEVERE WEATHER, STRIKES, GOVERNMENT SANCTIONED EMBARGO, FLOOD, ACT OF GOD, ACT OF WAR OR TERRORISM, ACT OF ANY PUBLIC AUTHORITY OR SOVEREIGN GOVERNMENT, CIVIL DISORDER, DELAY OR DESTRUCTION CAUSED BY PUBLIC CARRIER, OR ANY OTHER CIRCUMSTANCE REASONABLY BEYOND OUR CONTROL, INCLUDING, WITHOUT LIMITATION, OUTAGES OR PROBLEMS WITH THIRD PARTY SERVERS.
IN NO EVENT SHALL ANY OF THE PERSISTIQ PARTIES BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THE SERVICE, ANY PERSISTIQ TECHNOLOGY, OR ANY CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY. IN THE EVENT ANY JURISDICTION DOES NOT ALLOW ANY EXCLUSION OR LIMITATION OF LIABILITY SET FORTH HEREIN, IN SUCH JURISDICTION, THE LIABILITY OF THE PERSISTIQ PARTIES IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
You shall indemnify, defend and hold harmless the PersistIQ Parties from any and all third party claims and related losses, liability, damages and/or costs (including attorneys' fees and costs) arising from (i) any Content, (ii) your use of the Services, or (iii) breach by you or your Content of any Law or this Agreement. We shall indemnify, defend and hold you harmless from any and all third party claims and related losses, liability, damages and/or costs (including attorneys’ fees and costs) arising from an allegation that the PersistIQ Technology infringes or misappropriates any third party intellectual property right.
This Agreement shall continue in full force and effect until terminated in accordance with the terms set forth herein. We reserve the right, in our sole discretion, to restrict, suspend, or terminate this Agreement and your access to the Service, at any time and for any reason without prior notice or liability. We reserve the right to change, suspend, or discontinue all or any part of the Service at any time without prior notice or liability. You may terminate this Agreement at any time upon at least thirty (30) days prior written notice to us.
In the event that any portion of this Agreement is held to be invalid or unenforceable, then such portion shall be construed in accordance with the applicable law as nearly as possible to reflect the original intentions of the parties, and the remainder of this Agreement shall remain in full force and effect. The sections of this Agreement entitled Intellectual Property Rights, Disclaimer and Limitations of Liability, Indemnification and Miscellaneous shall survive the termination of this Agreement. The paragraph headings herein are provided only for reference and shall have no effect on the construction or interpretation of this Agreement. You may not assign this Agreement. No waiver shall be effective unless in writing. This Agreement shall be governed by and construed in accordance with the laws of the State of California. Except for proceedings commenced by us to protect our intellectual property or confidential information which may be brought in any court of competent jurisdiction, the parties mutually agree that any and all disputes arising hereunder shall be resoAgreement. No waiver shall be effective unless in writing. This Agreement shall be governed by and construed in accordance with the laws of the State of California. Except for proceedings commenced by us to protect our intellectual property or confidential information which may be brought in any court of competent jurisdiction, the parties mutually agree that any and all disputes arising hereunder shall be resoAgreement. No waiver shall be effective unless in writing. This Agreement shall be governed by and construed in accordance with the laws of the State of California. Except for proceedings comment shall be admissible in judicial or administrative proceedings to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.