SOLVE NEXT INC. ThinkWrong Lab Membership Agreement
BY ACCESSING AND USING THE SERVICE IN ANY WAY, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
The Service may continue to change over time as we refine and add more features. We may modify the Service at any time without prior notice to you. We may also remove features from the Service at our discretion.
We may update and change any part or all of this Agreement. If we update or change this Agreement, we will post the updated version at http://www.thingwrong.com/membership-agreement/ The updated Agreement will become effective on the next business day after being posted. When we change this Agreement, we will modify the "Last Modified" date above. We encourage you to review this Agreement periodically.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interest of the subject entity.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
“Order Form” means the documents for purchasing the Service hereunder, including addenda and supplements thereto, that are entered into between You and Us. Order forms shall be deemed incorporated herein by reference. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
“Purchased Services” mean the Services that You or Your Affiliate purchased under an Order Form.
"Services" mean the services that are ordered by You under an Order Form and made available online by Us. The Service does not include technical support, training services, or consulting services.
“Subscription Term” means the term specified on Your Order Form.
"User(s)" means an individual who is authorized by You to use a Service, for whom You have ordered the Service, and to whom You (or We at your request), have supplied a user identification and password.
“User Guide” means Our online help and training materials, as updated from time to time.
“User Subscription” means Your User’s authorized subscription to use Purchases Services.
“We,” “Us” or “Our,” means the Solve Next Inc. company described in the Notices section 18.
“You” or “Your” means the company or other legal entity for which you are accepting this Agreement and Affiliates of your company or entity.
“Your Data” means all electronic data or information submitted by You to the Service, including names, email addresses, documents, and permissions settings.
2. Purchased Service
2.1 Provision of Purchased Services. We shall: (i) provide Our basic support for the Purchased Service to You at no additional charge, during normal weekday business hours (except holidays) from 9am to 5pm (PST) by contacting our technical support team at firstname.lastname@example.org, and (ii) use commercially reasonable efforts to make the Purchased Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which We shall give at least 8 hours notice, and which We shall schedule to the extent practicable during the weekend hours from 6:00 p.m. Friday to 3:00 a.m. Monday Pacific Time), or (b) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Our employees), Internet service provider failures or delays, or denial of service attacks, and (iii) provide the Purchased Services only in accordance with applicable laws and government regulations.
2.2 Protection of Your Data. We shall not (a) modify Your Data, (b) disclose Your Data except as compelled by law in accordance with Section 6.3 (Compelled Disclosure) or as expressly permitted in writing by You, or (c) access Your Data except to provide the Services and prevent or address service or technical problems, or at Your request in connection with customer support matters. Services are hosted on Amazon Web Services (“AWS”). More information about AWS security practices can be found at: https://d0.awsstatic.com/whitepapers/aws-security-whitepaper.pdf.
3. Use of the Service
3.1 User Subscriptions and Usage Limits. Unless otherwise provided in the applicable Order Form, Services are provided on a subscription basis. Subscription Terms are specified on the Order Form. User Subscriptions are limited to the specified number of Users on the Order Form. If the number of Users increases during the Subscription Term You may upgrade your subscription to the next level prorated for the remainder of the applicable Subscription Term in effect at the times the subscription is upgraded. The upgraded User subscription shall terminate on the same date as the pre-existing subscription. User subscriptions are for designated Users only and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing user of the Service. The Service is purchased as User subscriptions and may be accessed by no more than the specified number of Users.
3.2 Your Responsibilities. You shall (i) be responsible for Users' compliance with this Agreement, (ii) be responsible for the accuracy, quality and legality of Your Data and of the means by which You acquired Your Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Service, and notify Us promptly of any such unauthorized access or use, and (iv) use the Service only in accordance with the User Guide and applicable laws and government regulations.
3.3 Usage Restrictions. You shall not (a) Permit any third party to access the Service except as permitted herein or in an Order Form; (b) Enable multiple Users in your organization to access the Service with a single User Subscription login; (c) Sell, resell, rent or lease the Service; (d) Transfer a User Subscription to subsequent acquisitions, mergers, or white labels; (e) Copy, frame or mirror any part or content of the Service, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes (f); Misrepresent ownership of the Service; (g) Reverse engineer the Service, or access the Service in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Service; (h) Use the Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; or (i) Use the Service to store or transmit Malicious Code, interfere with or disrupt the integrity or performance of the Service or third-party data contained therein, or attempt to gain unauthorized access to the Service or their related systems or networks.
3.4 Trademark License.
You are granted a limited, revocable, non-exclusive, without the right to sublicense, license to use the Think Wrong mark in connection with Your User Subscription and subject to compliance with Our Think Wrong quality control guidelines. You agree to (a) to cooperate with Us in facilitating control of the quality of Our Marks; (b) to permit reasonable inspection of Your Use of the Marks; and (c) to supply Us with specimens of use of the Mark upon request. We may request changes be made to such materials or Use in our sole discretion in order to comply with Our quality standards. You agree to make appropriate changes to materials within a reasonable amount of time. You agree not to commit any acts, directly or indirectly, which may contest, dispute, or otherwise impair the rights, title or interest of Us in or to the Marks. You agree not to claim or assert any rights, title or interest in or to the Marks in any way. All uses of the Marks by You will be in such a manner as to inure at all times to the benefit of Us. You will not use any language or display any Marks in such a manner as to create the impression that the Marks belong to and are owned by You. You may not use the Marks in combination with any other trademarks, trade names, service marks, or other designations, without Our prior written approval. Your license to use the Mark is expressly conditional on Your cooperation, and may be revoked if by Us if You do not cooperate with Us to maintain Our quality standards.
4. Fees and payment for purchased services
4.1 Fees. You shall pay all fees specified in all Order Forms hereunder. Except as otherwise specified herein or in an Order Form, (i) fees are based on services purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) User level subscriptions purchased cannot be decreased during the relevant subscription term stated on the Order Form. Subscription terms are specified in the Order Form.
4.2. Invoicing and Payment. You will provide Us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit card for all Services listed in the Order Form. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.
4.3. Overdue Charges. If any charges are not received from You by the due date, then at Our discretion, such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
4.4. Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for Our services is thirty (30) or more days overdue (or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our service to you until such amounts are paid in full. We will give You at least seven (7) days' prior notice that Your account is overdue, in accordance with Section 18 (Notices), before suspending services to You.
4.5 Payment Disputes. Payment for the service will be due as per sections 5.1 through 5.4 and according to the Order Form, regardless of actual usage of the Service, satisfaction with the Service, or technical support issues hereunder.
4.6 No Refunds. Upon receipt of an Order Form by Us, You have committed to purchasing the Service for the term and price specified in the Order Form. We will not under any circumstances issue a refund to You once an Order Form is received.
4.7 Taxes. Unless otherwise stated, Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority.
5. Proprietary rights
5.1 Reservation of Rights in Service. Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Service, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
5.2 Suggestions. We shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the Services.
5.3 Federal Government End Use Provisions. We provide the Service, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Service include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with Us to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
6.1 Definition of Confidential Information. As used herein, "Confidential Information" means information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), which are in tangible form and labeled “confidential” or the like, or, if disclosed orally, are identified as being confidential and the time of disclosure, and, within two (2) weeks thereafter, are summarized, appropriately labeled and provided in tangible form. The following information shall be considered Confidential Information whether or note marked or identified as such: 1) Software and the Software License Key; and (ii) Our pricing and product roadmaps. However, Confidential Information (other than Your Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
6.2 Protection of Confidential Information. The Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates' employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party shall disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates and their legal counsel and accountants without the other party's prior consent.
6.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party's Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
7. Warranties and disclaimers
7.1 Our Warranties. We warrant that We have validly entered into this Agreement and have the legal power to do so,
7.2 Your Warranties. You warrant that You have validly entered into this Agreement and have the legal power to do so.
7.3 Disclaimer. We MAKE NO WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICE, OR SUPPORT, ITS QUALITY, PERFORMANCE, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. AS A RESULT, THE SERVICE IS PROVIDED “AS-IS”, AND YOU ARE ASSUMING THE ENTIRE RISK AS TO ITS QUALITY AND PERFORMANCE.
You will indemnify, defend and hold Us harmless, at Your expense, against any third-party claim, suit, action, or proceeding (each, an “Action”) brought against Us (and Our officers, directors, employees, agents, service providers, licensors, and affiliates) to the extent that such Action is based upon or arises out of (a) Your use of the Service; (b) Your noncompliance with or breach of this Agreement, or (c) the unauthorized use of the Service by any other person using Your User information. You will indemnify Us for any and all costs, damages, settlements, liabilities, losses, and expenses (including, but not limited to, reasonable attorneys' fees and court costs) of any kind whatsoever, directly and to the extent arising out of any Action by a third party not affiliated with Us. We shall use commercially reasonable efforts to: notify You in writing within thirty (30) days of Our becoming aware of any such claim; give You sole control of the defense or settlement of such a claim (provided that You may not settle any such claim unless the settlement unconditionally releases Us of all liability); and provide You (at Your expense) with any and all information and assistance reasonably requested by You to handle the defense or settlement of the claim. You shall not accept any settlement that (i) imposes an obligation on Us; (ii) requires Us to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on Us without Our prior written consent.
9. Limitation of Liability
9.1 Limitation of Liability. OUR LIABLITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT WILL OUR AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.
9.2 Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
10. Term and Termination
10.1 Term of Agreement. This Agreement commences on the date You accept it and continues until all User subscriptions granted in accordance with this Agreement have expired or been terminated.
10.2 Term of Purchased User Subscriptions. User subscriptions purchased by You commence on the start date specified in the applicable Order Form, or on the date You begin using the Purchased Service, whichever is earlier, and continues for the subscription term, as specified in the Order Form.
10.3 Termination for Cause. Either party may terminate this Agreement for cause: (i) upon thirty (30) days’ notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
10.4 Suspension for Present Harm. If Your use of, the Service: (i) is being subjected to denial of service attacks or other disruptive activity, or (ii) is being used to engage in denial of service attacks or other disruptive activity, (iii) is creating a security vulnerability for the Service or others, (iv) is consuming excessive bandwidth, or (v) is causing immediate, material and ongoing harm to Us or others, then We may, with reasonably contemporaneous electronic or telephonic notice to You, suspend all or any access to the Service. In this extraordinary circumstance, We will use commercially reasonable efforts to limit the suspension to the affected portion of the Service and promptly resolve the issues causing the suspension of the Service.
10.5 Retrieval of Your Data. Upon request by You made within thirty (30) days after the date of termination or expiration of this Agreement, We will provide You with temporary access to the Service to retrieve, or We will provide You with copies of, all Your Data then in its possession or control. After such thirty (30)-day period, We shall have no obligation to maintain or provide any Your Data and shall thereafter, unless legally prohibited, delete all Your Data in its systems or otherwise in its possession or control.
11. No Waiver. The failure of either party to enforce any rights granted hereunder or to take action against the other Party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
12. Applicable Law. To the maximum extent permitted by law, this Agreement shall be governed by the laws of the state of California, U.S.A. without reference to conflicts of law principles, and both parties hereby consent to the exclusive jurisdiction and venue of courts in San Jose, California, U.S.A. in all disputes arising out of or relating to the use of the Service. Use of the Service is unauthorized in any jurisdiction that does not give effect to all provisions of this Agreement, including without limitation this paragraph.
13. Waiver of Jury Trial. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
14. Force Majeure. Neither party shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
15. Relationship of the Parties. The parties are independent contractors. The parties agree that no joint venture, partnership, employment, or agency relationship exists between the parties as a result of this Agreement or Your use of the Service.
16. Severability. If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement shall continue in effect.
17. Notices. Notice shall be sent to the contact address set forth here (as such may be changed by notice given to the other party),and shall be deemed delivered as of the date of actual receipt. Us: Solve Next Inc., 432B Main Street, Half Moon Bay, CA 94019, Attention: Kim Scales. You: Customer’s address as provided in Our Account Information for You. We may give electronic notices applicable to its Service customer base by means of a general notice via the Service and may give electronic notices specific to You by email to Your e-mail addresses on record in Our account information for You.
18. Entire Agreement. This Agreement is the entire agreement between You and Us regarding Your use of Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning the subject matter. No modification, amendment, or waiver of any provisions of this Agreement will be effective unless in writing and signed by the parties against whom the modification, amendment or waiver is to be asserted. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any Order Form, the terms of such Order Form shall prevail. We object to and reject any additional or different terms proposed by You, including those contained in Your purchase order, acceptance form or website. Our failure to object elsewhere to any provisions of any subsequent document, communication, or act of Yours shall not be deemed a waiver of any of the terms hereof. The party’s obligations hereunder are neither contingent on the delivery of any future functionality or features of the Service nor dependent on any oral or written public comments made by Us regarding future functionality or features of the Service.
19. Assignment. You will not assign or transfer this Agreement, including any assignment or transfer by reason of merger, reorganization, sale of all or substantially all of its assets, change of control or operation of law, without Our prior written consent. We may assign or transfer this agreement to any successor.
20. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
21. Attorney Fees. You shall pay on demand all of Our reasonable attorney fees and other costs incurred by Us to collect any fees or charges due Us under this Agreement following Your breach of Section 5.1 (Invoicing and Payment).
22. Export Compliance. The Service, other technology We make available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. You shall not permit Users to access or use Services in a U.S.- embargoed country (currently Cuba, Iran, North Korea, Sudan or Syria) or in violation of any U.S. export law or regulation.
23. Survival. The following sections shall survive the expiration or termination of this Agreement: Fees and Payments, Proprietary Rights, Confidentiality, Indemnification, Warranties and Disclaimers, Limitation of Liability, Termination, and General.
24. Sub-processors. The following is a list of sub-processors we use in the execution of the Service: SquareSpace (squarespace.com), Cloudinary (cloudinary.com), Klaviyo (www.klaviyo.com), mLab (mlab.com), SendGrid (sendgrid.com), Doorbell.io (doorbell.io), Stripe (stripe.com), Vimeo (vimeo.com), HubSpot (hubspot.com), Google Analytics (www.google.com/analytics), and Amazon Web Services (aws.amazon.com).