Effective Date: February 1st, 2022
PLEASE NOTE THAT YOUR USE OF AND ACCESS TO OUR SERVICES (DEFINED BELOW) ARE SUBJECT TO THE FOLLOWING TERMS; IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE SERVICES IN ANY MANNER. USE OF THE SERVICES IS EXPRESSLY CONDITIONED UPON CUSTOMER’S (DEFINED BELOW) ASSENT TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, TO THE EXCLUSION OF ALL OTHER TERMS. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS.
Welcome to Massdriver. Please read on to learn the terms and conditions that govern your use of our website(s) and the products and services that you order or use (collectively, the “Service” or “Services”). If you have any questions, comments, or concerns regarding this Agreement or the Services, please contact us at support@massdriver.cloud
These Terms of Service (the “Agreement”) are a binding contract between you and Massdriver, Inc. (“Massdriver,” “we” and “us”). You must agree to and accept all the terms and conditions of this Agreement, or you don’t have the right to use the Services. By mutually executing an order form or similar document that references this Agreement (each, an “Order Form”) or by clicking a button, checking a box or otherwise indicating your acceptance, you or the entity you represent (“Customer” or “you”) agree that you have read and agree to this Agreement. You represent and warrant that you are authorized to bind Customer. This Agreement will remain in effect while you use the Services. Massdriver reserves the right to modify the terms and conditions of this Agreement at any time, provided Massdriver will provide Customer with notice of change by email and/or by another reasonable means.
- Order Forms; Access to the Service. Upon mutual execution, each Order Form, if any, shall be incorporated into and form a part of the Agreement. To the extent any terms in this Terms of Service conflict with any terms in the Order Form, the Order Form shall govern. Subject to Customer’s compliance with the terms and conditions of this Agreement (including any limitations and restrictions set forth on any applicable Order Form), Massdriver grants Customer a nonexclusive, limited, personal, nonsublicensable, nontransferable right and license to internally access and use the Services for the internal business purposes of Customer, only as provided herein and only in accordance with Massdriver’s applicable official user documentation for such Service (the “Documentation”).
- Service Updates. From time to time, Massdriver may provide upgrades, patches, enhancements, or fixes for the Services to its customers generally without additional charge (“Updates”), and such Updates will become part of the Services and subject to this Agreement; provided that Massdriver shall have no obligation under this Agreement or otherwise to provide any such Updates. Customer understands that Massdriver may cease supporting old versions or releases of the Services at any time in its sole discretion; provided that Massdriver shall use commercially reasonable efforts to give Customer reasonable prior notice of any major changes.
- Ownership; Feedback. As between the parties, Massdriver retains all right, title, and interest in and to the Services, and all software, products, works, and other intellectual property and moral rights related thereto or created, used, or provided by Massdriver for the purposes of this Agreement, including any copies and derivative works of the foregoing. For clarity, Services include any feature development on Massdriver’s development roadmap, or as otherwise mutually agreed in writing by Massdriver and Customer (“Feature Development”). Massdriver shall own all right, title, and interest in and to any Feature Development and any associated intellectual property rights therein. Any software which is distributed or otherwise provided to Customer hereunder (including without limitation any software identified on an Order Form) shall be deemed a part of the “Services” and subject to all of the terms and conditions of this Agreement. No rights or licenses are granted except as expressly and unambiguously set forth in this Agreement. Customer may (but is not obligated to) provide suggestions, comments or other feedback to Massdriver with respect to the Services or Feature Development (“Feedback”). Feedback, even if designated as confidential by Customer, shall not create any confidentiality obligation for Massdriver notwithstanding anything else. Massdriver acknowledges and agrees that all Feedback is provided “AS IS” and without warranty of any kind. Customer shall, and hereby assigns all right, title and interest worldwide in the Feedback and all applicable intellectual property rights related to the Feedback. Nothing in this Agreement will impair Massdriver’s right to develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as, or otherwise compete with any products, software or technologies that Customer may develop, produce, market, or distribute.
- Fees; Payment. Customer shall pay Massdriver fees for the use of the Service as set forth at (i) https://massdriver.cloud/pricing or (ii) in an Order Form (each (i)-(ii) “Fees”). Unless otherwise specified in the applicable pricing page referenced in the foregoing sentence or in an Order Form, all Fees shall be charged to the credit card associated with Customer’s account on a 30-day basis beginning thirty (30) days after Customer’s submission of its credit card information via Massdriver’s third-party payment processor (such submission, a “Subscription”, and each such 30-day period, a “Subscription Term”). Massdriver reserves the right to change the Fees in any manner and at any time. Any changes to the Fees will take effect following notice to Customer. If applicable, past due invoices are subject to interest on any outstanding balance of the lesser of 1.5% per month or the maximum amount permitted by law. Customer shall be responsible for all taxes associated with Service (excluding taxes based on Massdriver’s net income). All Fees paid are non-refundable and are not subject to set-off.
- Restrictions. Except as expressly set forth in this Agreement, Customer shall not (and shall not permit any third party to), directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Service (except to the extent applicable laws specifically prohibit such restriction); (ii) modify, translate, or create derivative works based on the Service; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Service; (iv) use the Service for the benefit of a third party; (v) remove or otherwise alter any proprietary notices or labels from the Service or any portion thereof; (vi) use the Service to build an application or product that is competitive with any Massdriver product or service; (vii) interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service; or (viii) bypass any measures Massdriver may use to prevent or restrict access to the Service (or other accounts, computer systems or networks connected to the Service); or (ix) “crawl,” “scrape,” or “spider” any page, data, or portion of or relating to the Service (or any information, data or content made available through the Service), whether through use of manual or automated means. Customer is responsible for all of Customer’s activity in connection with the Service, including but not limited to uploading Customer Data (as defined below) onto the Service. Customer (a) shall use the Service in compliance with all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer’s use of the Service (including those related to data privacy, international communications, export laws and the transmission of technical or personal data laws), and (b) shall not use the Service in a manner that violates any third party intellectual property, contractual or other proprietary rights.
- Customer Data. For purposes of this Agreement, “Customer Data” shall mean any data, information or other material provided, uploaded, or submitted by Customer to the Service in the course of using the Service. Customer shall retain all right, title and interest in and to the Customer Data, including all intellectual property rights therein. Customer, not Massdriver, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data. Massdriver shall use commercially reasonable efforts to maintain the security and integrity of the Service and the Customer Data. Massdriver is not responsible to Customer for unauthorized access to Customer Data or the unauthorized use of the Service unless such access is due to Massdriver’s gross negligence or willful misconduct. Customer is responsible for the use of the Service by any person to whom Customer has given access to the Service, even if Customer did not authorize such use. Customer agrees and acknowledges that Customer Data may be irretrievably deleted if Customer’s account is ninety (90) days or more delinquent. Notwithstanding anything to the contrary, Customer acknowledges and agrees that Massdriver may (i) internally use and modify Customer Data for the purposes of (A) providing the Service to Customer and (B) generating Aggregated Anonymous Data (as defined below), (ii) if Customer communicates or otherwise interacts with another party on the Service (the “Receiving Party”), disclose Customer Data with such other party as necessary to provide the Service to Customer, and (iii) freely use and make available Aggregated Anonymous Data for Massdriver’s business purposes (including without limitation, for purposes of improving, testing, operating, promoting and marketing Massdriver’s products and services). “Aggregated Anonymous Data” means data submitted to, collected by, or generated by Massdriver in connection with Customer’s use of the Service, but only in aggregate, anonymized form which can in no way be linked specifically to Customer. Customer acknowledges and agrees that Massdriver is not responsible for any use or disclosure of Customer Data by the Receiving Party.
- Third Party Services. Customer acknowledges and agrees that the Service may operate on, with or using application programming interfaces (APIs) and/or other services operated or provided by third parties (“Third Party Services”), including without limitation through integrations or connectors to such Third Party Services that are provided by Massdriver. Massdriver is not responsible for the operation of any Third Party Services nor the availability or operation of the Service to the extent such availability and operation is dependent upon Third Party Services. Customer is solely responsible for procuring any and all rights necessary for it to access Third Party Services (including any Customer Data or other information relating thereto) and for complying with any applicable terms or conditions thereof. Massdriver does not make any representations or warranties with respect to Third Party Services or any third party providers. Any exchange of data or other interaction between Customer and a third party provider is solely between Customer and such third party provider and is governed by such third party’s terms and conditions.
- Term; Termination. Unless otherwise specified in an Order Form, this Agreement shall commence upon the earlier of the (i) mutual execution of an Order Form or (ii) the date on which you click a button, check a box or otherwise indicate your acceptance to this Agreement, and shall continue unless earlier terminated in accordance herewith. Massdriver may terminate this Agreement for any or no reason by giving Customer at least thirty (30) days’ prior written notice. Customer may stop using the Services at any time. If Customer has a Subscription, Customer may cancel its Subscription by contacting Massdriver at support@massdriver.cloud and, subject to the Fees, may continue to use the Services through the end of the then-current Subscription Term. In the event of a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement by providing written notice to the breaching party, provided that the breaching party does not materially cure such breach within thirty (30) days of receipt of such notice. Without limiting the foregoing, Massdriver may suspend or limit Customer’s access to or use of the Service if (i) Customer’s account is more than sixty (60) days past due, or (ii) Customer’s use of the Service results in (or is reasonably likely to result in) damage to or material degradation of the Service which interferes with Massdriver’s ability to provide access to the Service to other customers; provided that in the case of subsection (ii): (a) Massdriver shall use reasonable good faith efforts to work with Customer to resolve or mitigate the damage or degradation in order to resolve the issue without resorting to suspension or limitation; (b) prior to any such suspension or limitation, Massdriver shall use commercially reasonable efforts to provide notice to Customer describing the nature of the damage or degradation; and (c) Massdriver shall reinstate Customer’s use of or access to the Service, as applicable, if Customer remediates the issue within thirty (30) days of receipt of such notice. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, accrued payment obligations, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
- Indemnification. Each party (“Indemnitor”) shall defend, indemnify, and hold harmless the other party, its affiliates and each of its and its affiliates’ employees, contractors, directors, suppliers and representatives (collectively, the “Indemnitee”) from all liabilities, claims, and expenses paid or payable to an unaffiliated third party (including reasonable attorneys’ fees) (“Losses”), that arise from or relate to any claim that (i) in the case of Customer as Indemnitor, the Customer Data or Customer’s use of the Service infringes, violates, or misappropriates any third party intellectual property or proprietary right or violates any applicable law, or (ii) in the case of Massdriver as Indemnitor, the Service infringes, violates, or misappropriates any third party intellectual property or proprietary right. Each Indemnitor’s indemnification obligations hereunder shall be conditioned upon the Indemnitee providing the Indemnitor with: (i) prompt written notice of any claim (provided that a failure to provide such notice shall only relieve the Indemnitor of its indemnity obligations if the Indemnitor is materially prejudiced by such failure); (ii) the option to assume sole control over the defense and settlement of any claim (provided that the Indemnitee may participate in such defense and settlement at its own expense); and (iii) reasonable information and assistance in connection with such defense and settlement (at the Indemnitor’s expense). The foregoing obligations of Massdriver do not apply with respect to the Service or any information, technology, materials or data (or any portions or components of the foregoing) to the extent (i) not created or provided by Massdriver (including without limitation any Customer Data), (ii) made in whole or in part in accordance to Customer specifications, (iii) modified after delivery by Massdriver, (iv) combined with other products, processes or materials not provided by Massdriver (where the alleged Losses arise from or relate to such combination), (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) Customer’s use of the Service is not strictly in accordance herewith.
- Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE” AND ARE WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. CUSTOMER HEREBY ACKNOWLEDGES THAT MASSDRIVER DOES NOT SUPERVISE, DIRECT, CONTROL ANY USER OF THE SERVICE AND EXPRESSLY DISCLAIMS ANY RESPONSIBILITY AND LIABILITY FOR THE ACTIONS OR INACTIONS OF ANY SUCH PARTY. If there is a dispute between participants on the Services, or between users and any third party, Customer agrees that Massdriver is under no obligation to become involved. In the event that Customer has a dispute with one or more other users, Customer releases Massdriver, its directors, officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our Services. Customer shall and hereby does waive California Civil Code Section 1542 or any similar law of any jurisdiction, which says in substance: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”
- Limitation of Liability. EXCEPT FOR THE PARTIES’ INDEMNIFICATION OBLIGATIONS AND FOR CUSTOMER’S BREACH OF SECTION 7 (RESTRICTIONS), IN NO EVENT SHALL EITHER PARTY, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) THE FEES PAID (OR PAYABLE) BY CUSTOMER TO MASSDRIVER HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM HEREUNDER.
- Miscellaneous. This Agreement represents the entire agreement between Customer and Massdriver with respect to the subject matter hereof, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Customer and Massdriver with respect thereto. Unless otherwise specified in an Order Form or in this Agreement, all notices under this Agreement shall be in writing and shall be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Notices must be sent to the contacts for each party set forth on the Order Form. Either party may update its address set forth above by giving notice in accordance with this section. Except as otherwise provided herein, no modification or amendment of any provision of this Agreement shall be effective unless agreed by both parties in writing, and no waiver of any provision of this Agreement shall be effective unless in writing and signed by the waiving party. Except for payment obligations, neither party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such party’s reasonable control, including, without limitation, the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes lock-outs or labor disruptions; pandemics; epidemics; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts. Neither party may assign any of its rights or obligations hereunder without the other party’s consent; provided that (i) either party may assign all of its rights and obligations hereunder without such consent to a successor-in-interest in connection with a sale of substantially all of such party’s business relating to this Agreement, and (ii) Massdriver may utilize subcontractors in the performance of its obligations hereunder. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect. Customer agrees to allow Massdriver to use and display Customer’s name and logo on Massdriver’s website and in Massdriver’s promotional materials to identify Customer as a customer. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees. If any provision of this Agreement is held to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. The failure of either party to act with respect to a breach of this Agreement by the other party shall not constitute a waiver and shall not limit such party’s rights with respect to such breach or any subsequent breaches. This Agreement is governed by and will be construed under the laws of the State of California, without regard to the conflicts of laws provisions thereof. Except as otherwise expressly set forth herein, any dispute arising from or relating to the subject matter of this Agreement shall be finally settled in San Francisco County, California, in English, in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. (“JAMS”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with the Arbitration Rules and Procedures of JAMS. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the state or federal courts located in, respectively, Los Angeles County, California, or the Central District of California.
