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Customer Terms of Service (2018-08-06)

14 minute read
Last updated August 06, 2018

These Customer Terms of Service (the “Customer Terms”) describe your rights and responsibilities when using our online feedback management and user research analysis tools (the “Services“).

If you are a Customer (defined below), these Customer Terms govern your access and use of the Services. If you are being invited to a team created by a Customer (e.g. your employer), the User Terms of Service (the “User Terms”) govern your access and use of the Services.

Introduction

The “Customer” is the organization that you represent in agreeing to the Contract (e.g. your employer). If your team is being set up by someone who is not formally affiliated with an organization, the Customer is the individual creating the team.

These Customer Terms form a binding “Contract” between the Customer and us. If any terms in the Customer-Specific Supplement apply to the Customer, those terms also form part of the Contract.

You represent the Customer

If you personally create a team (a digital space where a group of users may access the Services), purchase team subscription(s), or use or allow use of that team after being notified of a change to these Customer Terms, you acknowledge your understanding of the Contract and agree to the Contract on behalf of the Customer.

Customers give access to Authorized Users

Individuals authorized by the Customer to access the Services (an “Authorized User”) may submit content to the Services, such as textual data or files (“Customer Data”). The Customer will:

(a) inform Authorized Users of all Customer policies and practices that are relevant to their use of the Services; and

(b) ensure the transfer and processing of Customer Data under the Contract is lawful.

Upgrading to a paid subscription

A paid subscription allows a Customer and its Authorized Users to access the Services (the “team subscription”). You may upgrade to a team subscription during, or at the end of, your trial period. Team subscriptions commence immediately and continue for the term specified in the “billing” interface. Each team subscription is for a single team for a specified term.

Purchase based on now; not the future

We may share information about our future product plans (e.g. linking to our public roadmap). These public statements are an expression of intent. Do not rely on them when making a purchase decision. If you decide to purchase a team subscription to our Services, that decision should be based on the functionality or features we have made available at that moment, and not on the delivery of any future functionality or features.

Your feedback

If a Customer sends us any feedback or suggestions regarding the Services, there is a chance we will use it, so the Customer grants us (for itself and all of its Authorized Users and other Customer personnel) an unlimited, irrevocable, perpetual, sublicensable, transferable, royalty-free license to use any such feedback or suggestions for any purpose without any obligation or compensation to the Customer, any Authorized User or other Customer personnel.

You’re responsible for your content

The Customer must comply with the Contract and ensure that its Authorized Users comply with the Contract and the User Terms. We aren't responsible for the content of any Customer Data or the way the Customer or its Authorized Users choose to use the Services to store or process any Customer Data.

Our removal rights

If we believe that there is a violation of the Contract that can be remedied, we will, in most cases, ask the Customer to take direct action rather than intervene. However, we may directly step in and take what we determine to be appropriate action, if the Customer does not take appropriate action, or if we believe there is a credible risk of harm to us, the Services, Authorized Users, or any third parties.

Payment terms

Fees are specified in the “billing” interface and must be paid in advance. Payment obligations are non-cancelable and fees paid are non-refundable. For clarity, in the event the Customer cancels any subscriptions, the Customer will remain responsible for any unpaid fees under the paid subscription, and Services under the paid subscription will be deemed fully performed and delivered upon expiration of the initial team subscription term. If you decide to cancel part way through your subscription term, we will not refund you for the remainder of the term.

Auto-renewal

All team subscriptions automatically renew (without the need to go through the Services “billing” interface) for additional periods equal to the preceding term.

Downgrade for non-payment

If any fees owed to us by the Customer are three (3) days or more overdue, we may, without limiting our other rights and remedies, pause any team subscriptions until those amounts are paid in full. The Customer acknowledges and agrees that pausing their team subscription will result in a temporary loss of access to Customer Data.

We’ll provide the Services

We will make the Services available to the Customer and its Authorized Users as described in the Contract; and not use or process Customer Data for any purpose without the Customer’s prior written instructions; provided, however, that “prior written instructions” will be deemed to include use of the Services by Authorized Users and any processing related to such use or otherwise necessary for the performance of the Contract.

We’ll keep the Services available

We will use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, excluding planned downtime. We expect planned downtime to be infrequent but will endeavor to provide the Customer with advance notice if we think it may exceed sixty (60) continuous minutes.

We’ll protect your Customer Data

The protection of Customer Data is a top priority for us so we will maintain administrative, physical, and technical safeguards. Those safeguards will include measures for preventing unauthorized access, use, modification, deletion and disclosure of Customer Data by our personnel. Before sharing Customer Data with any of our third party service providers, we will ensure that the third party maintains, at a minimum, reasonable data practices for maintaining the confidentiality and security of Customer Data and preventing unauthorized access. The Customer (not us) bears sole responsibility for adequate security, protection and backup of Customer Data when in the Customer’s or its representatives’ or agents’ possession or control. We are not responsible for what the Customer’s Authorized Users do with Customer Data. That is the Customer’s responsibility.

Data portability and deletion

During the term of a team subscription, the Customer will be permitted to export or share certain Customer Data from the Services. However, because we have multiple, complex features, and the Customer has different retention options, the Customer acknowledges and agrees that the ability to export or share Customer Data may be limited or unavailable. Following termination or expiration of a team’s subscriptions, we will have no obligation to maintain or provide any Customer Data and may thereafter, unless legally prohibited, delete all Customer Data in our systems or otherwise in our possession or under our control.

Privacy Policies

Please review our User Privacy Policy and Website Visitor Privacy Policy for more information on how we collect and use data relating to the use of the Services.

You own your Customer Data

The Customer will own all Customer Data. Subject to the terms and conditions of the Contract, the Customer (for itself and all of its Authorized Users) grants us a worldwide, non-exclusive, limited term license to access, use, process, copy, distribute, perform, export and display Customer Data, only as reasonably necessary:

(a) to provide, maintain and update the Services;

(b) to prevent or address service, security, support or technical issues;

(c) as required by law; and

(d) as expressly permitted in writing by the Customer. The Customer represents and warrants that it has secured all rights in and to Customer Data from its Authorized Users as may be necessary to grant this license.

We own our Services

We own and will continue to own our Services, including all related intellectual property rights. We grant to the Customer a non-sublicensable, non-transferable, non-exclusive, limited license for the Customer and its Authorized Users to use the object code version of these components, but solely as necessary to use the Services and in accordance with the Contract and the User Terms. All of our rights not expressly granted by this license are hereby retained.

The Customer and its Authorized Users must not breach any copyright or intellectual property rights connected with the Services. This includes but is not limited to:

(a) altering or modifying any of the code in the Services;

(b) causing any of the material in the Services to be framed or embedded in another website without our permission;

(c) decompiling or reverse engineering, including attempting to decompile or reverse engineer, any software in the Services;

(d) undertaking or attempting to undertake any act which would otherwise constitute an infringement of our moral rights;

(e) transferring the Services to a third party or mirroring the Services on another server;

(f) creating derivative works from the Services.

Contract term

As further described below, a team subscription has a term that may expire or be terminated. The Contract remains effective until all subscriptions ordered under the Contract have expired or been terminated or the Contract itself terminates. Termination of the Contract will terminate all subscriptions.

Termination for cause

We or the Customer may terminate the Contract on notice to the other party if the other party materially breaches the Contract and such breach is not cured within thirty (30) days after the non-breaching party provides notice of the breach. The Customer is responsible for its Authorized Users, including for any breaches of this Contract caused by its Authorized Users. We may terminate the Contract immediately on notice to the Customer if we reasonably believe that the Services are being used by the Customer or its Authorized Users in violation of applicable law.

Upon any termination for cause by the Customer, we will refund the Customer any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by us, the Customer will pay any unpaid fees covering the remainder of the term of those subscriptions after the effective date of termination. In no event will any termination relieve the Customer of the obligation to pay any fees payable to us for the period prior to the effective date of termination.

Termination without cause

Customer may terminate its team subscriptions immediately without cause. We may also terminate Customer’s team subscriptions without cause, but we will provide Customer with thirty (30) days prior written notice.

Representations disclaimer of warranties

The Customer represents and warrants that it has validly entered into the Contract and has the legal power to do so. The Customer further represents and warrants that it is responsible for the conduct of its Authorized Users and their compliance with the terms of this Contract and the User Terms.

Limitation of liability

To the extent permissible at law, we are not liable for any indirect, punitive, incidental, special, consequential damages including without limitation any claims, losses, liability, loss of data, loss of profits, revenue, business or goodwill arising out of or in any way connected with the provision of or failure to provide the Services under these Customer Terms.

To the extent permitted by law, we exclude all representations, guarantees, warranties or terms (whether express or implied) other than those expressly set out in these Customer Terms, and the Australian Consumer Law to the extent applicable.

We cannot guarantee specific results for our Services. It is the Customer’s sole responsibility to determine that the Services or any part of these meet the Customer’s needs or are otherwise suitable for the purposes for which they are used.

These Customer Terms are to be read subject to any legislation that prohibits or restricts the exclusion, restriction or modification of any implied warranties, conditions, guarantees or obligations. If such legislation applies, to the extent possible we limit our liability as follows, at our option: for any claims relating to these Customer Terms, to the fees payable under this agreement (if applicable) for the preceding one (1) month; in the case of products including any digital products (a) the replacement of the products or the supply of equivalent products; (b) the repair of the products; (c) the payment of the cost of replacing the products or of acquiring equivalent products; or (d) the payment of having the products repaired; or in the case of services, the supply of the services again or the payment of the cost of having the services supplied again.

This limitation applies to any supply under or related to these Customer Terms including the supply of the Services and covers loss of Customer Data, any viruses or other disabling features that affect Customer access to or use of our Services, incompatibility between the Services and Customer hardware or software, delays or failures the Customer may have in using the Services including any connections or transmissions that fail or are not completed in an accurate or timely manner.

This clause survives the termination or expiry of these Customer Terms for whatever reason.

Our indemnification of Customer

We agree to defend, indemnify and hold the Customer harmless from any losses or damages (“Claims”) brought against or sustained by the Customer by a third party, which relates to the infringement of a third-party Intellectual Property Rights caused by the Customer’s use of the Services.

Our indemnity does not include any actions, suits, claims, demands, liabilities, costs, expenses, losses and damage (including reasonable legal fees) brought against or sustained by the Customer by a third party, which:

(a) relates to Customer Data;

(b) relates to a product or service of another entity;

(c) arises out of any unlawful modification of the Services;

(d) arises out of any breach by the Customer of these Customer Terms; or

(e) arises from an admission or settlement by the Customer without our prior written consent.

For any Claims arising under this clause, the Customer must:

(a) provide us with prompt notice of any Claim brought against the Customer;

(b) provide reasonable assistance to defend the Claim, including providing us with any relevant documents or evidence that we request;

(c) allow us to maintain exclusive control over the Claim, including as to any settlements that we may agree upon.

This clause is the Customer’s exclusive remedy and our sole liability against any Claim brought against or sustained by the Customer by a third party.

This clause survives the termination or expiry of these Customer Terms for whatever reason.

Customer indemnification of Us

The Customer agrees to defend, indemnify and hold us, our affiliates, employees, agents, contributors, third party content providers and licensors harmless from and against all actions, suits, claims, demands, liabilities, costs, expenses, losses and damage (including legal fees on a full indemnity basis) brought against or sustained by us, which:

(a) is directly or indirectly caused by the Customer’s breach of these Terms;

(b) is directly or indirectly caused by any willful, reckless or negligent act of the Customer;

(c) concerns personal injury to any person caused or contributed to by the Customer;

(d) is caused by the Customer’s act or omission and constitutes a loss of or damage to property;

(e) is brought by any third-party in respect of personal injury, death or damage to third-party property; or

(f) arises from the Customer’s act or omission.

Except as required by law, we will not be liable for any claim, loss or liability for personal injury, death or damage to the Customer or its property however it may be caused.

We reserve the right, at our own expense, to assume the exclusive defence and control of any matter otherwise subject to indemnification by the Customer, and in such case, the Customer agrees to cooperate with our defence of such claim.

In no event will we be liable to the Customer for any indirect, incidental or consequential damages including, without limitation, direct, indirect, special, punitive, or exemplary damages.

Confidentiality

In these Customer Terms, “Confidential Information” means information that:

(a) is by its nature confidential; or

(b) is designated by a party as confidential; and

(c) the party knows or ought to know is confidential;

but does not include information which:

(d) is or becomes public knowledge other than by breach of these Customer Terms or by any other unlawful means;

(e) is in the possession of the party without restriction in relation to disclosure before the date of receipt from the other party; or

(f) has been independently developed or acquired by the other party.

A party who receives Confidential Information under these Customer Terms agrees not to disclose it to any other party without the prior written consent of the other party.

We will restrict disclosure of such Confidential Information only to such of our employees, agents or subcontractors that need to know it for discharging our obligations under these Customer Terms, and shall ensure that such employees, agents or subcontractors are subject to the same obligations of confidentiality.

Severability

The Contract will be enforced to the fullest extent permitted under applicable law. If any provision of the Contract is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of the Contract will remain in effect.

Disputes

You agree to use your best endeavors to use mediation and negotiation to resolve any dispute arising out of or relating to these Customer Terms, prior to resorting to an external dispute resolution process.

Publicity

The Customer grants us the right to use the Customer’s company name and logo as a reference for marketing or promotional purposes on our website and in other public or private communications with our existing or potential customers, subject to Customer’s standard trademark usage guidelines. The Customer may send us an email to legal@dovetailapp.com stating that it does not wish to be used as a reference.

Relationship of the Parties

The parties are independent contractors. The Contract does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. There are no third party beneficiaries to the Contract.

Amendment

These Terms may be amended without notice from time to time at our sole discretion. Your use of the Services following any amendments indicates that you accept the amendments. Please check these Terms regularly to ensure you are aware of any changes, and only proceed to use the Services if you accept the new Terms.

Jurisdiction

Your use of the Services and any dispute arising out of your use of it is subject to the laws of New South Wales and the Commonwealth of Australia. These Customer Terms are governed by the laws of New South Wales and the Commonwealth of Australia and subject to the exclusive jurisdiction of the courts operating in New South Wales. The Services may be accessed throughout Australia and overseas. We make no representation that the Services complies with the laws (including intellectual property laws) of any country outside Australia. If you access the Services from outside Australia, you do so at your own risk and are responsible for complying with the laws in the place where you access the Services.

Entire agreement

The Contract, including these Customer Terms and all referenced pages constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Without limiting the foregoing, the Contract supersedes the terms of any online agreement electronically accepted by the Customer or any Authorized Users. However, to the extent of any conflict or inconsistency between the provisions in these Customer Terms and any other documents or pages referenced in these Customer Terms, the following order of precedence will apply: (1) the portions of the Customer-Specific Supplement that apply to the Customer (if any), (2) the Customer Terms, and (3) any other documents or pages referenced in the Terms.


For questions and notices, please email legal@dovetailapp.com.

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