Customer Terms of Service

Last Modified: July 21, 2016


PLEASE READ THESE CUSTOMER TERMS OF SERVICE CAREFULLY.


This is a contract between you (the Customer) and us (Cloverpop, Inc.). It describes the services we will provide to you, how we will work together, and other aspects of our business relationship. It is a legal document so some of the language is “legalese” but we have made it as readable as possible. By using the Subscription Service or receiving Consulting Services, you are agreeing to these terms.

We reserve the exclusive right to modify or update these terms and make changes to or discontinue any or all of our programs, products and services without providing further notice.

In the ‘General Terms’ below are provisions that apply to all of our products; in the ‘Product Terms’ below are provisions that apply to specific products, including our Alpha/Beta Services and our Free Services. Please read them carefully because the ‘Product Terms’ section takes precedence if there’s any conflict between the ‘General Terms’ and the ‘Product Terms’.


I. GENERAL TERMS


1. Definitions

“Agreement” means these Customer Terms of Service and all materials referred or linked to in here. The Customer Terms of Service used to be called the Terms of Use.

“Billable Users” means those types of Users for which we charge you fees.

“Billing Period” means the period for which you agree to prepay fees under a Sales Order.

“Communication Services” means third-party instant message services, forums, online communities, blogs, personal web pages, calendars, and/or other social media communication facilities (such as Slack, Facebook, Twitter and LinkedIn) linked to or from the Subscription Service that enable you to communicate with the public or with a private group.

“Confidential Information” means all information provided by you or us (“Discloser”) to the other (“Receiver”), whether orally or in writing that is designated as confidential. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser, or (ii) was known to the Receiver before receipt from the Discloser.

“Consulting Services” means the professional services provided to you by us, which may include training, enablement, configuration, integration, strategy or other consulting services.

“Customer Data” means all information that you submit or collect via the Subscription Service, including but not limited to decisions you create, files you upload and account information.

“Decider” means those types of Billable Users who can create and manage decisions and administer Teams using the Subscription Service.

“Sales Order” or “Order Form” means the Cloverpop-approved form or online subscription process by which you agree to subscribe to the Subscription Service and purchase Consulting Services. Sales Orders may be completed through a signature process or via an online process or via an in-app purchase. The purchase form may be referred to as a “Statement of Work” if you are purchasing only Consulting Services.

“Sensitive Information” means credit or debit card numbers; personal financial account information; Social Security numbers; passport numbers; driver’s license numbers or similar identifiers; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to regulations, laws or industry standards designed to protect data privacy and security, such as the Health Insurance Portability and Accountability Act and the Payment Card Industry Data Security Standards.

“Subscription Fee” means the amount you pay for the Subscription Service.

“Subscription Service” means our web-based decision management platform, applications and tools to which you have subscribed by a Sales Order, or that we otherwise make available to you, developed, operated, and maintained by us, accessible via http://www.cloverpop.com or another designated URL, and any ancillary products and services that we provide to you.

“Subscription Term” means the Initial Subscription Term and all Renewal Subscription Terms.

“Team” means a group of Users that can view the same set of decisions using the Subscription Service; Teams have administrative control of all the decisions they manage.

“Team Administrator” means those types of Users who can provision and manage User permissions for Teams within the Subscription Service; Team Administrators must be Deciders.

“Team Guest” means those types of Users who are limited to viewing and weighing in on only decisions they were specifically invited to by a Team Member using the Subscription Service.

“Team Member” means those types of Users who can view and weigh in on decisions for Teams they have permission to access within the Subscription Service.

“Third-Party Products” means non-embedded products and professional services that are provided by third parties which interoperate with or are used in connection with the Subscription Service.

“Third-Party Sites” means third-party websites linked from within the Subscription Service, including Communications Services.

“Users” means your employees, representatives, consultants, contractors or agents who are authorized to use the Subscription Service for your benefit and have unique user identifications and passwords for the Subscription Service.

“Cloverpop”, “we”, “us” or “our” means the applicable contracting entity as specified in the ‘Contracting Entity and Applicable Law’ section of the ‘General Terms’

“You”, “your” or “Customer” means the person or entity using the Subscription Service or receiving the Consulting Services and identified in the applicable billing statement, online subscription process, Sales Order or Statement of Work as the customer.

2. The Subscription Service

a. Access. During the Subscription Term, we will provide you access to use the Subscription Service as described in this Agreement.

b. Limits. The limits that apply to you will be specified in your Sales Order(s) and in this Agreement.

c. Modifications. We modify the Subscription Service from time to time, including by adding or deleting features and functions, in an effort to improve your experience. But we will not make changes to the Subscription Service that materially reduce the functionality of the Subscription Service provided to you during the Subscription Term. We might provide some or all elements of the Subscription Service through third party service providers.

d. Additional Features. You may subscribe to new and/or additional features of the Subscription Service by agreeing to a new Sales Order.

3. Customer Support

a. Support. Support is included in your Subscription Fee. Live chat or webform support for the Subscription Service is available 8AM to 5PM Pacific Time (GMT-5), Monday through Friday, excluding US national holidays. We accept webform support questions 24 Hours per Day x 7 Days per Week at https://cloverpop.zendesk.com. Webform responses are provided during live support hours only. We attempt to respond to webform support questions within one business day; in practice, our responses are generally faster. We do not promise or guarantee any specific response time.

b. Availability. We try to make the Subscription Service available 24 hours a day, 7 days a week, except for planned down-time for maintenance.

4. Consulting Services

You may purchase Consulting Services through a Sales Order or Statement of Work. The Consulting Services, including fees and terms, will be described in a Statement of Work or Sales Order. Fees for any Consulting Services are in addition to your Subscription Fee.

5. Fees and Payments

a. Subscription Fees. The Subscription Fee will remain fixed during the Subscription Term unless you: (i) exceed your contracted number of Billable Users, or other applicable limits, (see Section 2.b. above), (ii) upgrade products, or (iii) subscribe to additional features or products. Where a price change applies to you, we will charge or invoice you under the new price structure as outlined in sections 5.b. and 5.c. below. You may not downgrade your subscription during the Subscription Term, and in order to avoid additional charges, you should purchase the appropriate capacity of the Subscription Service and/or features for your anticipated needs. We may monitor or audit remotely the number of Billable Users of the Subscription Service.

b. Fee Adjustments During a Billing Period. If you exceed your contracted number of Billable Users during a Billing Period, your Subscription Fee will increase to correspond with your maximum Billable Users from the current Billing Period. The Subscription Fee will also increase during a Billing Period if you exceed other applicable limits, change products or subscribe to additional features for use during the Billing Period. Once increased, your Subscription Fee will not decrease during the Subscription Term, even if there is a subsequent reduction in the number Billable Users, or other applicable limits, during the Subscription Term. We may choose to decrease your fees upon written notice to you.

c. Fee Adjustments in Next Billing Period. If you exceed your contracted number of Billable Users during a Billing Period, or if you exceed other applicable limits, change products or subscribe to additional features, your Subscription Fee will increase at the beginning of the next Billing Period to correspond with the changes. This process will continue for each subsequent Billing Period during the Subscription Term. Once increased, your Subscription Fee will not decrease during the Subscription Term, even if there is a subsequent reduction in the number Billable Users, or other applicable limits, during the Subscription Term. We may choose to decrease your fees upon written notice to you.

d. Payment by Credit Card. If you are paying by credit card, you authorize us to charge your credit card or bank account for all fees payable during the Subscription Term. You further authorize us to use a third party to process payments, and consent to the disclosure of your payment information to such third party.

e. Payment Against Invoice. If you are paying by invoice, we will invoice you on the Initial Subscription Term start date and each subsequent Billing Period, and other times during the Subscription Term when fees are payable. All amounts invoiced are due and payable within thirty (30) days from the date of the invoice, unless otherwise specified in the Sales Order.

f. Payment Information. You will keep your contact information, billing information and credit card information (as required) up to date. Where applicable, changes may be made within your Cloverpop account. All payment obligations are non-cancelable and all amounts paid are non-refundable, except as specifically provided for in this Agreement. All fees are due and payable in advance throughout the Subscription Term. If you are a Cloverpop partner that purchases on behalf of a client, you agree to be responsible for the Sales Order and to guarantee payment of all fees.

g. Sales Tax. All fees are exclusive of taxes, which we will charge as applicable. You agree to pay any taxes applicable to your use of the Subscription Service and performance of Consulting Services. You shall have no liability for any taxes based upon our gross revenues or net income. If you are located in the European Union, all fees are exclusive of any VAT and you represent that you are registered for VAT purposes in your member state. At our request, you will provide us with the VAT registration number under which you are registered in your member state. If you are subject to GST, all fees are exclusive of GST. If you are required to deduct or withhold any tax, you must pay the amount deducted or withheld as required by law and pay us an additional amount so that we receive payment in full as if there were no deduction or withholding.

6. Subscription Term and Renewal

a. Initial Subscription Term. The initial subscription term shall begin on the start date of your initial subscription period and expire at the end of the period selected during the subscription process (“Initial Subscription Term”).

b. Renewal Subscription Term. Unless one of us gives the other written notice that it does not intend to renew the subscription, this Agreement will automatically renew for the shorter of the Initial Subscription Term or one year (“Renewal Subscription Term”). Written notice of non-renewal must be sent no more than ninety (90) days but no less than forty-five (45) days in advance of the end of the Subscription Term, unless otherwise set forth in your Sales Order. Unless otherwise specified, the Renewal Subscription Term will be on the current terms and conditions of this Agreement, and subject to any renewal pricing provided for in your Sales Order. See the ‘Limits’ section above for the applicability of product usage limits on renewal. Should you decide not to renew, you may send the notice of non-renewal by email to accountmanagement@cloverpop.com.

c. End of Subscription Term. The Subscription Term will expire on the end date and cannot be canceled before its expiration.

7. Cloverpop’s Proprietary Rights

This is an Agreement for access to and use of the Subscription Service, and you are not granted a perpetual license to any software by this Agreement. The Subscription Service and Consulting Services are protected by intellectual property laws, they belong to and are the property of us or our licensors (if any), and we retain all ownership rights to them. You agree not to copy, rent, lease, sell, distribute, or create derivative works based on the Subscription Service, or the Consulting Services in whole or in part, by any means, except as expressly authorized in writing by us.

We encourage all customers to comment on the Subscription Service or Consulting Services and provide suggestions for improving them. You agree that all such comments and suggestions will be non-confidential and that we own all rights to use and incorporate them into the Subscription Service or Consulting Services, without payment or attribution to you.

8. Customer’s Proprietary Rights

As between the parties, you own and retain all rights to the Customer Data. This Agreement does not grant us any ownership rights to Customer Data. You grant permission to us and our licensors to use the Customer Data only as necessary to provide the Subscription Service and Consulting Services to you and as permitted by this Agreement. If you are using the Subscription Service or receiving Consulting Services on behalf of another party, then you represent and warrant that you have all sufficient and necessary rights and permissions to do so.

9. Confidentiality

The Receiver will: (i) protect the confidentiality of the Confidential Information using the same degree of care that it uses with its own confidential information of similar nature, but with no less than reasonable care, (ii) not use any Confidential Information for any purpose outside the scope of this Agreement, (iii) not disclose Confidential Information to any third party (except our third party service providers), and (iv) limit access to Confidential Information to its employees, contractors, advisors and agents. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.

10. Customer Responsibilities

To realize the full value of the Subscription Service and Consulting Services, your participation and effort are needed. Resources that may be required could include an Executive Sponsor, one or more Deciders, a Team Administrator, an Account Administrator, and a Technical Resource. Responsibilities that may be required could include identifying and framing goals and decisions, reviewing analysis of individual and team decisions, acting as internal liaison between business units or departments, and supporting the integration of the Subscription Service with other processes and systems.

11. Publicity

You grant us the right to add your company’s name and logo to our customer list and website.

12. Customer Data

a. Limits on Cloverpop. We will not use, or allow anyone else to use, Customer Data to contact any individual or company except as you direct or otherwise permit. We will use Customer Data only in order to provide the Subscription Service and Consulting Services to you and only as permitted by applicable law, this Agreement, and our Privacy Policy, located at http://web.cloverpop.com/privacy-policy.

b. Aggregate Data. We may monitor use of the Subscription Service by all of our customers and use the data gathered in an aggregate and anonymous manner. You agree that we may use and publish aggregate analysis of such information, provided that such information does not incorporate any specific Customer Data and/or identify you.

c. Safeguards. We will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. You consent to the processing of Customer Data in the United States.

d. No Sensitive Information. YOU AGREE NOT TO USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION. WE WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM YOUR USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION.

13. Use and Limitations of Use

a. Acceptable Use. You are solely responsible for your conduct (including by and between all Users), the content of your Customer Data, and all communications with others while using the Subscription Service. You acknowledge that Cloverpop has no obligation to monitor any information on the Subscription Service. We are not responsible for the accuracy, appropriateness, or legality of your Customer Data or any other information you and your Users may be able to access using the Subscription Service.

As part of the account registration process, Users will identify a user name (in the form of an email address) and a password. Deciders may use these credentials to invite Team Members to weigh in on decisions, each with their own user name and password. You are responsible for maintaining the confidentiality of your login, password, and account, and for all activities that occur under your login or account.

You will notify us right away of any security breach of the Subscription Service or any unauthorized use of your Users’ identifications and passwords or your account by sending an email to support@cloverpop.com.

Deciders are solely responsible for informing Team Members of the applicable company policies, obtaining any legally required member consent to such policies, and for ensuring that all uses of the Subscription Service comply with applicable federal, state and/or international privacy laws, including but not limited to, the Electronic Communications Privacy Act, 18 U.S.C. § 2510 et seq.

You represent and warrant to Cloverpop that (i) you own all your Customer Data or have obtained all permissions, releases, rights or licenses required to engage in your activities (and allow Cloverpop to perform its obligations) in connection with the Subscription Service without obtaining any further releases or consents, and (ii) your Customer Data and your other activities in connection with the Subscription Service, and Cloverpop’s exercise of all rights and license granted by you herein, do not and will not violate, infringe, or misappropriate any third party’s copyright, trademark, right of privacy or publicity, or other personal or proprietary right, nor does your Customer Data contain any matter that is defamatory, obscene, unlawful, threatening, abusive, tortious, offensive or harassing.

Cloverpop may review your Customer Data where we deem appropriate, including for violations of this Agreement or in response to a User complaint. Without limiting the foregoing, Cloverpop and its designees shall have the right to remove any of your Customer Data that violates the Agreement or is otherwise objectionable. You must evaluate, and bear all risks associated with, the use of your Customer Data, including any reliance on the accuracy, completeness, or usefulness of your Customer Data.

You acknowledge, consent and agree that Cloverpop may access, preserve and disclose your account information and your Customer Data if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (i) comply with legal process, (ii) enforce the Agreement, (iii) respond to claims that any of your Customer Data violates the rights of third parties, (iv) respond to your requests for customer service, or (v) protect the rights, property or personal safety of Cloverpop, its users and the public.

By accessing or using the Subscription Service, you affirm that you are at least 18 years of age (or have reached the age of majority if that is not 18 years of age where you live). You represent that you are fully able and competent to enter into and comply with the terms and conditions in these Terms of Service. The Subscription Service is not directed to children under 13, so if you are under 13 years of age, you are not permitted to access or use the Subscription Service. If we become aware that you are using the Subscription Service even though you are under 13, we will deactivate your account.

If you are a school or teacher in the United States and want your students, who are over 13, to use the Subscription Service, including in conjunction with the establishment of an account for the school or a group of students at the school, you are responsible for complying with the U.S. Family Educational Rights and Privacy Act (“FERPA”). This means you must notify those students’ parents/guardians of the personally identifiable information you will collect and share with Cloverpop and obtain parental/guardian consent before your students establish accounts or use the Subscription Service. When obtaining such consent, you should provide parents/guardians with a copy of our Privacy Policy. You must keep all consents on file and provide them to us if we request them. If you are located outside of the United States, we will rely upon you to obtain any required consent or approval from the parent or guardian of any student covered by similar laws and, as a condition to your and your students’ use of the Subscription Service, you will comply with such laws.

b. Prohibited and Unauthorized Use. You will not: (i) use or launch any automated system, including, “robots,” “spiders,” or “offline readers,” that sends more request messages to our servers in a given period of time than a human can reasonably produce in the same period by using a conventional browser, (ii) use the Subscription Service in any manner that damages, disables, overburdens, or impairs any of our websites or interferes with any other party’s use of the Subscription Service, (iii) attempt to gain unauthorized access to the Subscription Service, (iv) access the Subscription Service other than through our interface, or (v) use the Subscription Service for any purpose or in any manner that is unlawful or prohibited by this Agreement.

You also agree not to: (i) upload, post, transmit, or otherwise make available any Customer Data that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically, or otherwise objectionable, (ii) use the Subscription Service to harm minors in any way, (iii) impersonate any person or entity, including, but not limited to, a Cloverpop employee, a Decider, or a Team Member, or falsely state or otherwise misrepresent your affiliation with a person or entity, (iv) manipulate identifiers in order to disguise the origin of any Customer Data, (v) upload, post, transmit, or otherwise make available any Customer Data that you do not have a right to make available under any law or under contractual or fiduciary relationships, (vi) upload, post, transmit or otherwise make available any Customer Data in a manner that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party, (vii) sublicense, resell, rent, lease, transfer or assign (except as permitted in Assignment) the Subscription Service or its use, or offer the Subscription Service on a timeshare basis to any third party, (viii) use the Subscription Service to upload, post, transmit, or otherwise make available any software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware, (ix) intentionally or unintentionally violate any applicable local, state, national or international law in connection with your use of the Subscription Service, including, but not limited to, any data, privacy, or export control laws, or regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including, without limitation, the New York Stock Exchange, the American Stock Exchange, or the NASDAQ, and any regulations having the force of law, or (x) use the Subscription Service to provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act.

14. Acceptable Use of Communications Services

You agree to use Communication Services only in compliance with any terms of use specified by each Communication Service. We do not control the content, messages or information found in the Communication Services. We will not have any liability with regards to the Communication Services and any actions resulting from your use of the Communication Services.

15. Third-Party Sites and Products

Third-Party Sites and Products are not under our control. Third-Party Sites and Products are provided to you only as a convenience, and the availability of any Third-Party Site or Product does not mean we endorse, support or warranty the Third-Party Site or Product.

16. Indemnification

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) by a third party not affiliated with us to the extent that such Action is based upon or arises out of (i) unauthorized or illegal use of the Subscription Service by you, (ii) your noncompliance with or breach of this Agreement, (iii) your use of Third-Party Products, or (iv) the unauthorized use of the Subscription Service by any other person using your User information. We will 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; 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.

17. Disclaimers; Limitations of Liability

a. Disclaimer of Warranties. WE AND OUR AFFILIATES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE SUBSCRIPTION SERVICE, DATA MADE AVAILABLE FROM THE SUBSCRIPTION SERVICE, OR THE CONSULTING SERVICES FOR ANY PURPOSE. APPLICATION PROGRAMMING INTERFACES (APIs) MAY NOT BE AVAILABLE AT ALL TIMES. TO THE EXTENT PERMITTED BY LAW, THE SUBSCRIPTION SERVICE AND CONSULTING SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND WITH REGARD TO THE SUBSCRIPTION SERVICE AND THE CONSULTING SERVICES INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.

b. No Indirect Damages. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS OR BUSINESS OPPORTUNITIES.

c. Limitation of Liability. EXCEPT FOR YOUR LIABILITY FOR PAYMENT OF FEES, YOUR LIABILITY ARISING FROM YOUR OBLIGATIONS UNDER THE ‘INDEMNIFICATION’ SECTION, AND YOUR LIABILITY FOR VIOLATION OF OUR INTELLECTUAL PROPERTY RIGHTS, IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, EITHER PARTY IS DETERMINED TO HAVE ANY LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTY, THE PARTIES AGREE THAT THE AGGREGATE LIABILITY OF A PARTY WILL BE LIMITED TO THE LESSER OF ONE THOUSAND DOLLARS OR THE TOTAL AMOUNTS YOU HAVE ACTUALLY PAID FOR THE SUBSCRIPTION SERVICE IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM.

d. Third Party Products. WE DISCLAIM ALL LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS THAT YOU USE. OUR LICENSORS SHALL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.

YOU UNDERSTAND AND AGREE THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, WE WOULD NOT PROVIDE THE SUBSCRIPTION SERVICE TO YOU.

18. Termination, Suspension and Expiration

a. 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, liquidation or assignment for the benefit of creditors. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.

b. Suspension for Prohibited Acts. We may suspend any User’s access to the Subscription Service for use of the Subscription Service in a way that violates applicable local, state, federal, or foreign laws or regulations or the terms of this Agreement.

c. Suspension for Non-Payment. We may suspend your access to all or any part of the Subscription Service upon ten (10) days notice to you of non-payment of any amount past due. We will not suspend the Subscription Service while you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute. If the Subscription Service is suspended for non-payment, we may charge a re-activation fee to reinstate the Subscription Service.

d. Suspension for Present Harm. If your use of the Subscription Service: (i) is being subjected to denial of service attacks or other disruptive activity, (ii) is being used to engage in denial of service attacks or other disruptive activity, (iii) is creating a security vulnerability for the Subscription Service or others, (iv) is consuming excessive bandwidth, or (v) is causing harm to us or others, then we may, with electronic notice to you, suspend all or any access to the Subscription Service. We will try to limit the suspension to the affected portion of the Subscription Service and promptly resolve the issues causing the suspension of the Subscription Service.

e. Effect of Termination or Expiration. Upon termination or expiration of this Agreement, you will stop all use of the Subscription Service. If you terminate this Agreement for cause, we will promptly refund any prepaid but unused fees covering use of the Subscription Service after termination. If we terminate this Agreement for cause, you will promptly pay all unpaid fees due through the end of the Subscription Term. Fees are otherwise non-refundable.

f. Retrieval of Customer Data. As long as you have paid all fees owed to us, if you make a written request within thirty (30) days after termination or expiration of your Subscription, we will provide you with temporary access to the Subscription Service to retrieve all Customer Data then in our possession or control. If we provide you with temporary access, we may charge a re-activation fee. We may withhold access to Customer Data until you pay any fees owed to us. Thirty (30) days after termination or expiration of your Subscription, we will have no obligation to maintain or provide you the Customer Data and may, unless legally prohibited, delete all Customer Data in our systems or otherwise in our control.

19. Copyrights

Cloverpop respects the intellectual property of others, and we ask our Users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, you should notify Cloverpop of your infringement claim in accordance with the procedure set forth below. Cloverpop will process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act (“DMCA”) and other applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement should be emailed to Cloverpop’s copyright agent at: copyrightagent@cloverpop.com (Subject line: “DMCA Takedown Request”). You may also contact us by mail at:

Cloverpop, Inc.
415 Jackson St
San Francisco, CA 94111

To be effective, the notification must be in writing and contain the following information: an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest; a description of the copyrighted work or other intellectual property that you claim has been infringed; a description of where the material that you claim is infringing is located on the Subscription Service, with enough detail that we may find it on the Subscription Service; your address, telephone number, and email address; a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law; a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.

If you believe that the content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to upload and use the content, you may send a written counter-notice containing the following information to the copyright agent: your physical or electronic signature; identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled; a statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal court located within Northern District of California, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.

If a counter-notice is received by the copyright agent, Cloverpop will send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at our sole discretion.

In accordance with the DMCA and other applicable law, Cloverpop has adopted a policy of terminating, in appropriate circumstances and at Cloverpop’s sole discretion, users who are deemed to be repeat infringers. Cloverpop may also at its sole discretion limit access to and/or terminate the Subscription Service of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.

20. General

a. Amendment; No Waiver. We may update and change any part or all of these Customer Terms of Service, including the fees and charges associated with the use of the Subscription Service (but, your fees and charges won’t change during the Subscription Term except as we explain in the ‘Fees and Payments’ section above.) If we update or change these Customer Terms of Service, the updated Customer Terms of Service will be posted at http://web.cloverpop.com/terms-of-service. The updated Customer Terms of Service will become effective and binding on the next business day after it is posted. When we change these Customer Terms of Service, the “Last Modified” date above will be updated to reflect the date of the most recent version. We encourage you to review these Customer Terms of Service periodically.

b. Applicable Law. You are contracting with Cloverpop, Inc. for the Subscription and Consulting Services, and this Agreement is governed by the laws of the State of California, U.S.A. without reference to conflicts of law principles. For contracts with Cloverpop, Inc., both parties consent to the exclusive jurisdiction and venue of courts located in California, U.S.A. for all disputes arising out of or relating to the use of the Subscription Service or the Consulting Services.

c. Force Majeure. Neither party will be responsible for failure or delay of performance if caused by: (i) an act of war, hostility, or sabotage, (ii) an act of God, (iii) electrical, internet, or telecommunication outage that is not caused by the obligated party, (iv) government restrictions, (v) 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.

d. Actions Permitted. Except for actions for nonpayment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.

e. Relationship of the Parties. You and we agree that no joint venture, partnership, employment, or agency relationship exists between us.

f. Compliance with Laws. We will comply with all U.S. state and federal laws in our provision of the Subscription Service, the Consulting Services and our processing of Customer Data. We reserve the right at all times to disclose any information as necessary to satisfy any law, regulation, legal process or governmental request. You will comply with all laws in your use of the Subscription Service and Consulting Services, including any applicable export laws. You will comply with the sanctions programs administered by the Office of Foreign Assets Control (OFAC) of the U.S. Department of the Treasury. You will not directly or indirectly export, re-export, or transfer the Subscription Service or Consulting Services to prohibited countries or individuals or permit use of the Subscription Service or Consulting Services by prohibited countries or individuals.

g. Severability. If any part of this Agreement or a Sales Order is determined to be invalid or unenforceable by applicable law, 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 will continue in effect.

h. Notices. Notice will be sent to the contact address set forth herein, and will be deemed delivered as of the date of actual receipt.

To Cloverpop, Inc.:
Cloverpop, Inc.
415 Jackson Street
San Francisco, CA 94111

To you: your contact information as provided in our Cloverpop Subscription account information for you. We may give electronic notices by general notice via the Subscription Service and may give electronic notices specific to you by email to your e-mail address(es) on record in our account information for you or through the notifications preferences of the Subscription Service. We may give notice to you by telephone calls to the telephone numbers on record in our account information for you. You must keep all of your account information current.

i. Entire Agreement. This Agreement (including each Sales Order and Statement of Work), along with our Privacy Policy, is the entire agreement between us for the Subscription Service and Consulting Services and supersedes all other proposals and agreements, whether electronic, oral or written, between us. We object to and reject any additional or different terms proposed by you, including those contained in your purchase order, acceptance or website. Our obligations are not contingent on the delivery of any future functionality or features of the Subscription Service or dependent on any oral or written public comments made by us regarding future functionality or features of the Subscription Service. We might make versions of this Agreement available in languages other than English. If we do, the English version of this Agreement will govern our relationship and the translated version is provided for convenience only and will not be interpreted to modify the English version of this Agreement.

j. 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 your assets, change of control or operation of law, without our prior written consent, which will not be unreasonably withheld. We may assign this Agreement to any affiliate or in the event of merger, reorganization, sale of all or substantially all of our assets, change of control or operation of law.

k. No Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or shall confer upon any third party person or entity any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

l. Contract for Services. This Agreement is a contract for the provision of services and not a contract for the sale of goods.

m. Authority. Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms.

n. Survival. The following sections in the ‘General Terms’ shall survive the expiration or termination of this Agreement: ‘Definitions’, ‘Fees and Payments’, ‘Cloverpop’s Proprietary Rights’, ‘Customer’s Proprietary Rights’, ‘Confidentiality’, ‘Publicity’, ‘Indemnification’, ‘Disclaimers; Limitations of Liability’, ‘Termination, Suspension and Expiration’, and ‘General’.

o. Precedence. In the event of a conflict between the terms of this Agreement and a Sales Order or Statement of Work, the terms of the Sales Order or Statement of Work shall control, but only as to that Sales Order or Statement of Work.


II. PRODUCT TERMS


1. Alpha/Beta Services

a. Applicability. If you are given alpha or beta access to any features of the Subscription Service, the following additional terms apply. In the event of a conflict between the terms set forth in the ‘General Terms’ and the terms set forth in this ‘Alpha/Beta Services’ section, the terms in this ‘Alpha/Beta Services’ section take precedence with respect to your use of Alpha/Beta Services.

b. Alpha/Beta Services. If we make alpha or beta access to some or all of the Subscription Service (the “Alpha/Beta Services”) available to you: (i) the Alpha/Beta Services are provided “as is” and without warranty of any kind, (ii) we may suspend, limit, or terminate the Alpha/Beta Services for any reason at any time without notice, and (iii) we will not be liable to you for damages of any kind related to your use of the Alpha/Beta Services. If we inform you of additional terms and conditions that apply to your use of the Alpha/Beta Services, those will apply as well. We might require your participation to be confidential, and we might also require you to provide feedback to us about your use of the Alpha/Beta Services. You agree that we own all rights to use and incorporate your feedback into our services and products, without payment or attribution to you.

c. Contracting Entity and Applicable Law. You are contracting with Cloverpop, Inc. with respect to your use of Alpha/Beta Services..

d. Survival. The following sections in this ‘Alpha/Beta Services’ section shall survive the expiration or termination of this Agreement: ‘Alpha/Beta Services’, ‘Contracting Entity and Applicable Law’ and ‘Survival’.

2. Free Services

a. Applicability. In the event of a conflict between the terms set forth in any of the sections above and the terms set forth in this ‘Free Services’ section, the terms in this ‘Free Services’ section take precedence with respect to your use of the Free Services.

b. Additional Definitions. “Free Services” means the Subscription Service or other products or features made available by us to you on an unpaid trial or free basis.

c. Limits. Notwithstanding anything to the contrary in this Agreement, limits may apply to our Free Services, regardless of whether these limits are specified as set forth in Section 2.b. of the ‘General Terms’ above or other sections of the ‘Product Terms’. These limits may be specified only within the Free Services. We may change the limits that apply to your use of our Free Services any time in our sole discretion without notice to you, regardless of whether or not these Free Services are used in conjunction with other products or services for which you pay us a fee. In order to use our Free Services, you must be 18 years of age or older.

d. Free Services. If you use our Free Services, we will make the Free Services available to you free of charge until earlier of (a) the date on which your free subscription is terminated or (b) the start date of your paid subscription.

e. Free Trial. If you register for a trial of the Free Services, we will make the Free Services available to you on a trial basis free of charge until the earlier of (a) the end of the free trial period (if not earlier terminated) or (b) the start date of your paid subscription. If we include additional terms and conditions on the trial registration web page, those will apply as well. Unless you purchase a subscription to the applicable Free Services before the end of the free trial, all of your data in the Subscription Service may be permanently deleted at the end of the trial, and we will not recover it.

f. Disclaimers; Limitations of Liability. WE AND OUR AFFILIATES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE FREE SERVICES FOR ANY PURPOSE. APPLICATION PROGRAMMING INTERFACES (APIs) MAY NOT BE AVAILABLE AT ALL TIMES. TO THE EXTENT PERMITTED BY LAW, THE FREE SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND WITH REGARD TO THE FREE SERVICES, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL HUBSPOT BE LIABLE FOR ANY INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS OR BUSINESS OPPORTUNITIES. IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, CLOVERPOP IS DETERMINED TO HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY, THE PARTIES AGREE THAT CLOVERPOP’S AGGREGATE LIABILITY WILL BE LIMITED TO ONE DOLLAR. WE DISCLAIM ALL LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS THAT YOU USE. OUR LICENSORS SHALL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT. YOU UNDERSTAND AND AGREE THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, WE WOULD NOT PROVIDE THE FREE SERVICES TO YOU. THIS ‘DISCLAIMERS; LIMITATIONS OF LIABILITY’ SECTION SHALL APPLY IN LIEU OF THE ‘DISCLAIMERS; LIMITATIONS OF LIABILITY’ SECTION IN THE ‘GENERAL TERMS’ WITH RESPECT TO YOUR USE OF OUR FREE SERVICES.

g. Suspension. We may suspend, limit, or terminate the Free Services for any reason at any time without notice.

h. Contracting Entity and Applicable Law. You are contracting with Cloverpop, Inc. with respect to your use of the Free Services.

i. Survival. The following sections in this ‘Free Services’ section shall survive the expiration or termination of this Agreement: ‘Definitions’, ‘Disclaimers; Limitations of Liability’, ‘Contracting Entity and Applicable Law’, and ‘Survival’.