LAST REVISED ON: 04/15/2014
The website located at http://tempo-db.com/ (the “Site”) is a copyrighted work belonging to TempoDB Inc. (“Company”, “us”, and “we”). Company provides a service to store and analyze data (collectively, with all other services provided through the Site, the “Services”). Certain features of the Services or Site may be subject to additional guidelines, terms, or rules, which will be posted on the Service or Site in connection with such features. All such additional terms, guidelines, and rules are incorporated by reference into this Agreement. If you have entered into a separate Custom Pricing Agreement (“Custom Pricing Agreement”) with Company, the terms of such Custom Pricing Agreement apply as well and may supersede certain terms and conditions in this Agreement.
THE TERM “YOU” MEANS (A) YOU AS AN INDIVIDUAL IF YOU ARE ORDERING A SUBSCRIPTION ON YOUR OWN BEHALF OR (B) THE COMPANY, ENTITY, OR ORGANIZATION YOU REPRESENT IF YOU ARE ORDERING A SUBSCRIPTION ON BEHALF OF A COMPANY, ENTITY, OR ORGANIZATION (EACH, A “CUSTOMER”), AND (C) YOU AS AN INDIVIDUAL IF YOU ARE AN AUTHORIZED USER (DEFINED BELOW). THESE TERMS OF SERVICE (“AGREEMENT”) SET FORTH THE LEGALLY BINDING TERMS FOR YOUR USE OF THE SITE AND SERVICE. BY ACCESSING OR USING THE SITE OR SERVICE, YOU (ON BEHALF OF YOURSELF OR THE CUSTOMER, AS APPLICABLE) ARE ACCEPTING THIS AGREEMENT AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THIS AGREEMENT (ON BEHALF OF YOURSELF OR THE CUSTOMER, AS APPLICABLE). YOU MAY NOT ACCESS OR USE THE SITE OR SERVICE OR ACCEPT THE AGREEMENT IF YOU ARE NOT AT LEAST 18 YEARS OLD. IF YOU DO NOT AGREE WITH ALL OF THE PROVISIONS OF THIS AGREEMENT, DO NOT ACCESS AND/OR USE THE SITE OR SERVICE.
1. SUBSCRIPTIONS AND ACCOUNTS
1.1 The Service is available under a variety of subscription levels (each a “Subscription”) as described at http://tempo-db.com/pricing/ (“Pricing Page”) or your Custom Pricing Agreement. Customer may order a Subscription by following the directions on the Site or entering into a Custom Pricing Agreement. The Service features Customer receives (which may include support services) will depend on the type of Subscription Customer ordered.
1.2 Customer will designate an employee or contractor to manage the Customer’s Subscription (the “Admin”); if no one is designated, the Admin will be the first Customer Account created. An “Authorized User” means the Admin and each individual that (a) is a Customer employee or contractor, (b) is invited by the Admin to join, (c) creates and maintains a valid Account, and (d) agrees to be bound by the terms and conditions of this Agreement. The Admin may remove Authorized Users by following the instructions in the Admin’s Account. The Customer is responsible for the acts and omissions of the Customer and its Authorized Users under this Agreement, and any breach by an Authorized User will be deemed a breach by Customer. Customer will ensure that its Authorized Users comply with the terms and conditions of this Agreement and will promptly notify Company of any known violation.
1.3 In order to use the Services, you must register for an account with Company (“Account”) and provide certain information about yourself as prompted by the Site registration form. You represent and warrant that: (a) all required registration information you submit is truthful and accurate; and (b) you will maintain the accuracy of such information. You may delete your Account at any time, for any reason, by following the instructions on the Site. Company may suspend or terminate your Account in accordance with Section 9. You agree to immediately notify Company of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. Company cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
2. PAYMENT TERMS
2.1 Unless otherwise agreed to in a Custom Pricing Agreement, the following payment terms apply. The Subscription will continue for 1 month and auto-renew for additional 1 month terms thereafter until the Subscription is canceled (“Subscription Term”). The current “Subscription Fee” is set forth on the Pricing Page. For the avoidance of doubt, the Subscription Fee includes the base monthly fee for the base usage level, as well as any additional fee applied for uses above such base level (as described on the Pricing Page). Company will invoice Customer at the beginning of each month during the Subscription Term and Customer’s credit card on file with Company will automatically be charged for the applicable monthly Subscription Fee within one (1) week thereafter. Company may change the Subscription Fee (from time to time in its sole discretion) by updating the Site and without any additional notice to Customer, provided that any changes will not take effect until the Customer’s Subscription renews. Customer may cancel the Subscription by following the directions on the Site or emailing us at [email protected] with the subject line “CANCEL SUBSCRIPTION” (however, payments already made will not be refunded). All payments are non-refundable. Customer hereby authorizes Company to bill Customer’s credit card provided in ordering the Subscription as described above.
2.2 All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Customer is responsible for payment of all such taxes, levies or duties. Any amounts not paid when due shall bear interest at the rate of one and one half percent (1.5%) per month, or the maximum legal rate if less. If any fee cannot be charged to Customer’s credit card for any reason, Company may provide Customer, via email, notice of such non-payment and a link for Customer to update Customer’s payment information. If such non-payment is not remedied within seven (7) days after receiving such notice of non-payment, then Company may terminate the Subscription.
3.1 Site and Service License. Subject to the terms of this Agreement, Company grants you a non-transferable, non-exclusive, license (without the right to sublicense) to use the Site and Services (excluding the API) for your internal business use, which for the avoidance of doubt, includes using the Services internally to process third party information and content you receive through your Customer Application (defined below).
3.2 API License. Subject to the terms of this Agreement, Company grants you a non-transferable, non-assignable, non-exclusive, license (without the right to sublicense) to use the application programming interface provided under your Subscription (“API”) in accordance with the API documentation, solely to enable Customer’s application or service (“Customer Application”) to work with the Service. For the avoidance of doubt, the term “Service” includes the API.
3.3 Certain Restrictions. The rights granted to you in this Agreement are subject to the following restrictions, except as expressly licensed above: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Site or Services; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Site or Services; (c) you shall not access the Site or Services in order to build a similar or competitive service; and (d) no part of the Site or Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Any future release, update, or other addition to functionality of the Site or Services shall be subject to the terms of this Agreement. All copyright and other proprietary notices on any Site or Services content must be retained on all copies thereof. You shall not use Company’s name to endorse or promote any Customer Application. You shall not use the API for any illegal, unauthorized or otherwise improper purposes or use the API in a manner that, as determined by Company in Company’s sole discretion, exceeds reasonable request volume, constitutes excessive or abusive usage, or otherwise fails to comply or is inconsistent with any part of the API documentation.
3.4 Modification. Company reserves the right, at any time, to modify, suspend, or discontinue the Site or Services or any part thereof with or without notice. You agree that Company will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Site or Services or any part thereof, except and if otherwise expressly set forth in Section 9.
3.5 Ownership. Excluding your Customer Materials (defined below), you acknowledge that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Site and Services are owned by Company or Company’s licensors. The provision of the Site and Services does not transfer to you or any third party any rights, title or interest in or to such intellectual property rights. Company and its suppliers reserve all rights not granted in this Agreement. As between Company and Customer, Customer retains all of its rights in and to the Customer Materials and Customer Application (excluding the API).
3.6 Feedback. If you provide Company any feedback or suggestions regarding the Site or Services (“Feedback”), you hereby assign to Company all rights in the Feedback and agree that Company shall have the right to use such Feedback and related information in any manner it deems appropriate. Company will treat any Feedback you provide to Company as non-confidential and non-proprietary. You agree that you will not submit to Company any information or ideas that you consider to be confidential or proprietary.
4. CUSTOMER MATERIALS
4.1 Customer Materials. “Customer Data” means any and all (a) information and content that Customer or an Authorized User submits to, or uses with, the Site or Services and (b) third party information and content processed by the Site or Service through a Customer Application. “Customer Materials” means Customer Data and Customer Applications. You are solely responsible for your Customer Materials. You assume all risks associated with use of your Customer Materials, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your Customer Materials that makes you or any third party personally identifiable. You hereby represent and warrant that your Customer Materials does not violate the Acceptable Use Policy (defined below). You may not state or imply that your Customer Materials is in any way provided, sponsored or endorsed by Company. Because you alone are responsible for your Customer Materials (and not Company), you may expose yourself to liability if, for example, your Customer Materials violates the Acceptable Use Policy. Company is not obligated to backup any Customer Materials and Customer Materials may be deleted at anytime. You are solely responsible for creating backup copies of your Customer Materials if you desire.
4.2 License. You hereby grant, and you represent and warrant that you have the right to grant, to Company a nonexclusive, royalty-free and fully paid, worldwide license to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use your Customer Data, and to grant sublicenses of the foregoing, as necessary for the purpose of providing you the Site and Services.
4.3 Acceptable Use Policy. The following sets forth Company’s “Acceptable Use Policy”:
(b) You agree not to use with the Site or Services any Customer Materials (i) that violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) that is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive, promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual or is otherwise objectionable; (iii) that is harmful to minors in any way; or (iv) that is in violation of any law, regulation, or obligations or restrictions imposed by any third party.
(c) In addition, you agree not to use the Site or Services to: (i) upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter a computer system or data; (ii) send unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (iii) harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; (iv) interfere with, disrupt, or create an undue burden on servers or networks connected to the Site or Services or violate the regulations, policies or procedures of such networks; (v) attempt to gain unauthorized access to the Site or Services, other computer systems or networks connected to or used together with the Site or Services, through password mining or other means; (vi) harass or interfere with another user’s use and enjoyment of the Site or Services; or (vi) introduce software or automated agents or scripts to the Site or Services so as to produce multiple accounts, generate automated searches, requests and queries, or to strip, scrape, or mine data from the Site or Services (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials).
4.4 Enforcement. We reserve the right (but have no obligation) to review any Customer Materials, investigate, and/or take appropriate action against you in our sole discretion if you violate the Acceptable Use Policy or any other provision of this Agreement or otherwise create liability for us or any other person. Such acts may include removing or modifying your Customer Materials, terminating your Account in accordance with Section 9, and/or reporting you to law enforcement authorities.
5. INDEMNITY. You agree to indemnify and hold Company (and its officers, employees, and agents) harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of (a) your use of the Site or Services, (b) your Customer Materials (including Customer Data and Customer Applications), (c) your violation of this Agreement; or (d) your violation of applicable laws or regulations (including privacy laws). Company reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Company. Company will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
6. THIRD PARTY LINKS. The Site may contain links to other web sites operated by third parties. Such third party web sites are not under the control of Company. Company is not responsible for the content of any third party web site or any link contained in a third party web site. Company provides these links only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to third party web sites.
THE SITE AND SERVICES ARE PROVIDED “AS-IS” AND “AS AVAILABLE” AND WE (AND OUR SUPPLIERS) EXPRESSLY DISCLAIM ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WE (AND OUR SUPPLIERS) MAKE NO WARRANTY THAT THE SITE OR SERVICES: (A) WILL MEET YOUR REQUIREMENTS; (B) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (C) WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
8. LIMITATION ON LIABILITY
IN NO EVENT SHALL WE (AND OUR SUPPLIERS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFIT OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT OR YOUR USE OF, OR INABILITY TO USE, THE SITE OR SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SITE AND SERVICES ARE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA RESULTING THEREFROM.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (A) FIFTY US DOLLARS ($50) OR (B) AMOUNTS YOU’VE PAID COMPANY IN THE PRIOR 12 MONTHS (IF ANY). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. YOU AGREE THAT OUR SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THIS AGREEMENT.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
9. TERM AND TERMINATION
9.1 Subject to this Section, this Agreement will remain in full force and effect while you use the Site or Services. We may (a) suspend your rights to use the Site and/or Services (including your Account) or (b) terminate this Agreement, at any time for any reason at our sole discretion, including for any use of the Site or Services in violation of this Agreement. Notwithstanding anything to the contrary, if Company terminates this Agreement other than due to your violation of this Agreement or discontinues the Service, Company will provide you a pro-rata refund of your last monthly payment for any pre-paid but unused Services.
9.2 Upon termination of this Agreement, your Account and right to access and use the Site and Services will terminate immediately. You understand that any termination of your Account may involve deletion of your Customer Materials associated therewith from our live databases. Company will not have any liability whatsoever to you for any termination of this Agreement, including for termination of your Account or deletion of your Customer Materials. Even after this Agreement is terminated, the following provisions of this Agreement will remain in effect: Sections 3.5, 3.6, 4 –10.
10.2 Governing Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of Delaware, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Customer hereby expressly consents to the personal jurisdiction and venue in the state and federal courts for the county in which Company’s principal place of business is located for any lawsuit filed there against Customer by Company arising from or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. The laws of the jurisdiction where Customer is located may be different from Delaware law. Customer shall always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its purchase and use of the Service hereunder.
10.3 Entire Agreement. This Agreement constitutes the entire agreement between you and us regarding the use of the Site and Services. Our failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. The word including means including without limitation. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Your relationship to Company is that of an independent contractor, and neither party is an agent or partner of the other. This Agreement, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Company’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Company may freely assign this Agreement. The terms of this Agreement shall be binding upon assignees.
10.4 Electronic Communications. The communications between you and Company use electronic means, whether you use the Company Site, Customer Site, or send Company e-mails, or whether Company posts notices on the Company Site or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from Company in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Company provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
10.5 Copyright/Trademark Information. Copyright © 2012, TempoDB Inc. All rights reserved. All trademarks, logos and service marks (“Marks”) displayed on the Site are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.
10.6 Contact Information:
Address: TempoDB ℅ Catapult Chicago, 321 N. Clark St. Ste. 2550, Chicago, IL 60654
Telephone: (810) 423 9698
Email: [email protected]