Terms Of Service
- Your Percepticon Account and Service Access. If you create or use an account assigned to you, you are responsible for maintaining the security of your account and "Digital Channels" (Any destination of your digital content, for example a website, mobile site, mobile app, kiosk, etc.), and you are fully responsible for all activities that occur under the account and any other actions taken in connection with the account. You must not describe or assign keywords in your content in a misleading or unlawful manner, including in a manner intended to trade on the name or reputation of others, and Percepticon may change or remove any description or keyword that it considers inappropriate or unlawful, or otherwise likely to cause Percepticon liability. You must immediately notify Percepticon of any unauthorized uses of your account or any other breaches of security. Percepticon will not be liable for any acts or omissions by you, including any damages of any kind incurred as a result of such acts or omissions. You may only use a single user account for a single person, not a group of people. For example, one login can't be shared by two or more people.
- Responsibility of Contributors. If you activate portions of Percepticon services which allow content to be collected in your account, or otherwise make (or allow any third party to make) material available by means of the Service (any such material, "Content"), you are entirely responsible for the content of, and any harm resulting from, that Content. That is the case regardless of whether the Content in question constitutes text, graphics, an audio file, or computer software. By making Content available, you represent and warrant that:
- the downloading, copying and use of the Content will not infringe the proprietary rights, including but not limited to the copyright, patent, trademark or trade secret rights, of any third party;
- if your employer has rights to intellectual property you create, you have either (i) received permission from your employer to post or make available the Content, including but not limited to any software, or (ii) secured from your employer a waiver as to all rights in or to the Content;
- you have fully complied with any third-party licenses relating to the Content, and have done all things necessary to successfully pass through to end users any required terms;
- the Content does not contain or install any viruses, worms, malware, Trojan horses or other harmful or destructive content;
- the Content is not spam, is not machine- or randomly-generated, and does not contain unethical or unwanted commercial content designed to drive traffic to third party sites or boost the search engine rankings of third party sites, or to further unlawful acts (such as phishing) or mislead recipients as to the source of the material (such as spoofing);
- the Content is not pornographic, does not contain threats or incite violence towards individuals or entities, and does not violate the privacy or publicity rights of any third party;
- your Digital Channels are not getting advertised via unwanted electronic messages such as spam links on newsgroups, email lists, other blogs and web sites, and similar unsolicited promotional methods;
- your Digital Channels are not named in a manner that misleads your readers into thinking that you are another person or company. For example, your website's URL or name is not the name of a person other than yourself or company other than your own; and
- you have, in the case of Content that includes computer code, accurately categorized and/or described the type, nature, uses and effects of the materials, whether requested to do so by Percepticon or otherwise.
Without limiting any of those representations or warranties, Percepticon has the right (though not the obligation) to, in Percepticon's sole discretion (i) refuse or remove any content that, in Percepticon's reasonable opinion, violates any Percepticon policy or is in any way harmful or objectionable, or (ii) terminate or deny access to and use of the Service to any individual or entity for any reason, in Percepticon's sole discretion. Percepticon will have no obligation to provide a refund of any amounts previously paid.
- Payment and Renewal.
- General Terms.
Paid services such as Percepticon Corespin, CampaignTracks, QRspin, Related Services term subscriptions, or other services or licenses (collectively "Percepticon Licensing"); support ("Support"); or Hosting that are available on or through the Service or from Percepticon related to the Service (any such services, a "License"). By selecting a License you agree to pay Percepticon the monthly or annual subscription fees indicated for that service (additional payment terms specifically for hosting services are described below). Payments will be charged on a pre-pay basis on the day you sign up for a License and will cover the use of that service for a monthly, quarterly, annual or other subscription period as indicated. Any and all fees are not refundable.
- Automatic Renewal.
Unless you notify Percepticon thirty (30) days before the end of the applicable subscription period that you want to cancel a License, your License subscription will automatically renew and you authorize us to collect the then-applicable annual or monthly subscription fee for such a License (as well as any taxes) using any credit card or other payment mechanism we have on record for you.
- Failure to Pay; Delinquent Status; Suspension of Service.
By using Percepticon License services you agree to pay all fees on time and you acknowledge and agree to the following failure to pay terms. Failure to pay fees prior to the beginning date of any subscription period will result in a delinquent status being applied to the Services. Failure to pay within 5 days after the beginning date of any service period, at our sole discretion, may result in suspension of service without any further notice. Reinstatement of services will require payment in full of any outstanding balance plus, at our sole discretion, an additional late fee equal to the monthly fees for the subscription services. Past due balances will accrue interest at the rate of 1.5% per month.
- General Terms.
- Percepticon Licensing.
- Fees; Payment. By signing up for a Percepticon Service you agree to pay Percepticon the setup fees, monthly hosting fees, and any other service fees indicated in your Percepticon License Agreement as represented by a license agreement, service order(s), a statement of work, or invoices delivered physically or electronically. Fees are due and payable regardless of your receipt of any invoice. Applicable fees will be invoiced starting from the day Service is established and in advance of using such Service. Percepticon reserves the right to change the payment terms and fees upon thirty (30) days prior written notice to you. Percepticon accounts, if not under a specific term commitment, can be canceled by you at any time on thirty (30) days written notice to Percepticon. Cancellation during a term commitment period requires payment in full of the fees for the entire term.
- Datacenter and Hosting Services.
- Fees; Payment. By signing up for a hosting account you agree to pay Percepticon the setup fees, monthly hosting fees, and any other service fees indicated in your Percepticon License Agreement as represented by a license agreement, service order(s), a project statement of work, or invoices. Applicable fees will be invoiced starting from the day your hosting Services are established and in advance of using such services. Percepticon reserves the right to change the payment terms and fees upon thirty (30) days prior written notice to you. Hosting Services, if not under a specific term commitment, can be canceled by you at any time on thirty (30) days written notice to Percepticon. Cancellation during a term commitment period requires payment in full of the fees for the entire term.
- Support Services.
- Support Services include access to priority email support. "Email support" means the ability to make requests for technical support assistance by email at any time (with reasonable efforts by Percepticon to respond within two business days) concerning the use of the Service, Percepticon Licensing, and Datacenter and Hosting Services. All Support Services will be provided in accordance with Percepticon standard Support practices, procedures and policies. Access to support services are suspended for any account that is in a delinquent or suspended status. To reinstate support services, the account status must be returned to active.
- Responsibility of Service Visitors. Percepticon has not reviewed, and cannot review, all of the material, including computer software, posted to the Service, and cannot therefore be responsible for that material's content, use or effects. By operating the Service, Percepticon does not represent or imply that it endorses the material there posted, or that it believes such material to be accurate, useful or non-harmful. You are responsible for taking precautions as necessary to protect yourself and your computer systems from viruses, worms, Trojan horses, and other harmful or destructive content. The Service may contain content that is offensive, indecent, or otherwise objectionable, as well as content containing technical inaccuracies, typographical mistakes, and other errors. The Service may also contain material that violates the privacy or publicity rights, or infringes the intellectual property and other proprietary rights, of third parties, or the downloading, copying or use of which is subject to additional terms and conditions, stated or unstated. Percepticon disclaims any responsibility for any harm resulting from the use by visitors of the Service, or from any downloading by those visitors of content there posted.
- Content Posted on Other Websites. We have not reviewed, and cannot review, all of the material, including computer software, made available through the websites and webpages to which the Service links, and that link to the Service. Percepticon does not have any control over those non-Percepticon websites and webpages, and is not responsible for their contents or their use. By linking to a non-Percepticon website or webpage, Percepticon does not represent or imply that it endorses such website or webpage. You are responsible for taking precautions as necessary to protect yourself and your computer systems from viruses, worms, Trojan horses, and other harmful or destructive content. Percepticon disclaims any responsibility for any harm resulting from your use of non-Percepticon websites and webpages.
- Copyright Infringement. As Percepticon asks others to respect its intellectual property rights, it respects the intellectual property rights of others. If you believe that material located on or linked to by the Service violates your copyright, you are encouraged to notify Percepticon at the contact information below. Percepticon will terminate a visitor's access to and use of the Service if, under appropriate circumstances in our sole discretion, the visitor is determined to be a repeat infringer of the copyrights or other intellectual property rights of Percepticon or others. In the case of such termination, Percepticon will have no obligation to provide a refund of any amounts previously paid to Percepticon.
- Intellectual Property. This Agreement does not transfer from Percepticon to you any Percepticon or third party intellectual property, and all right, title and interest in and to such property will remain (as between the parties) solely with Percepticon. Percepticon, Corespin, CampaignTracks, Percepticon Analytics, Percepticon Social, the Percepticon logo, and all other trademarks, service marks, graphics and logos used in connection with Percepticon or the Service are trademarks or registered trademarks of Percepticon or Percepticon's licensors. Other trademarks, service marks, graphics and logos used in connection with the Service may be the trademarks of other third parties. Your use of the Service grants you no right or license to reproduce or otherwise use any Percepticon or third-party trademarks.
- Changes. Percepticon reserves the right to change or modify any of the terms and conditions contained in this Agreement, or any policy or guideline of the Service, at any time and in its sole discretion. If you do not agree with the changes, you can cancel your account with us. Unless otherwise specified, any changes or modifications will be effective immediately upon posting of the revisions on our website, and your continued use of the Service after such time will constitute your acceptance of such changes or modifications. You should from time to time review this Agreement and any policies and documents incorporated in them to understand the terms and conditions that apply to your use of the Service. If you do not agree to any amended Agreement, you must stop using the Service. If you have any questions about the Agreement, please email us at the contact address below. Percepticon may also, in the future, offer new services and/or features through the Service (including, the release of new tools and resources). Such new features and/or services shall be subject to the terms and conditions of this Agreement, as amended from time to time.
- Termination. Percepticon may terminate your access to all or any part of the Service at any time, with cause, with 30 days notice. If you wish to terminate this Agreement or your Percepticon account (if you have one), you must give 30 days written notice to Percepticon. Notwithstanding the foregoing, if you have a Hosting Services account, such account can only be terminated by Percepticon if you materially breach this Agreement and fail to cure such breach within thirty (30) days from Percepticon's notice to you thereof; provided that, Percepticon can terminate the Service immediately as part of a general shut down of our service. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
- Disclaimer of Warranties. The Service is provided "as is". Percepticon and its suppliers and licensors hereby disclaim all warranties of any kind, express or implied, including, without limitation, the warranties of merchantability, fitness for a particular purpose and non-infringement. Neither Percepticon nor its suppliers and licensors, makes any warranty that the Service will be error free or that access thereto will be continuous or uninterrupted. You understand that you download from, or otherwise obtain content or services through, the Service at your own discretion and risk.
- Limitation of Liability. In no event will Percepticon, or its suppliers or licensors, be liable with respect to any subject matter of this Agreement under any contract, negligence, strict liability or other legal or equitable theory for: (i) any special, incidental or consequential damages; (ii) the cost of procurement or substitute products or services; (iii) for interruption of use or loss or corruption of data; or (iv) for any amounts that exceed the fees paid by you to Percepticon under this Agreement during the six (6) month period prior to the cause of action. Percepticon shall have no liability for any failure or delay due to matters beyond their reasonable control. The foregoing shall not apply to the extent prohibited by applicable law.
- Indemnification. You agree to indemnify and hold harmless Percepticon, its contractors, and its licensors, and their respective directors, officers, employees and agents from and against any and all claims and expenses, including attorneys' fees, arising out of your use of the Service, including but not limited to your violation of this Agreement.
- Non-Solicitation of Personnel. Neither Party shall without the other Party's prior written consent solicit for hire any of the other Party's employees who are directly involved in the provision or receipt of the Services during the time such personnel are involved providing or receiving the Services and for twelve (12) months thereafter. This provision shall not restrict the right of either Party (1) to solicit or recruit generally in the media, and (2) to hire, without the prior written consent of the other Party, any personnel of the other Party who answers any advertisement or who otherwise voluntarily applies for hire without having been initially personally solicited or recruited by the hiring Party.
- Customer as Reference Client. Percepticon shall be entitled to use the name of Customer and customer logos or trademarks on Percepticon's website and general sales collateral for the sole purpose of identifying Customer as a client of Percepticon. Not including the purposes stated above, Customer shall approve all further uses of its names, logos and trademarks by Percepticon prior to such use.
- Miscellaneous. This Agreement constitutes the entire agreement between Percepticon and you concerning the subject matter hereof, and they may only be modified by a written amendment signed by an authorized executive of Percepticon, or by the posting by Percepticon of a revised version in accordance with this Agreement. Except to the extent applicable law, if any, provides otherwise, this Agreement, any access to or use of the Service and all disputes, claims or other matters arising from or relating to your use of the Service will be governed by the laws of the state of California and the federal laws of the United States applicable therein. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. The proper venue for any disputes arising out of or relating to any of the same will be courts situated in the City of Walnut Creek, State of California and you submit to the jurisdiction of such courts. The prevailing party in any action or proceeding to enforce this Agreement shall be entitled to costs and attorneys' fees. If any part of this Agreement is held invalid or unenforceable, that part will be construed to reflect the parties' original intent, and the remaining portions will remain in full force and effect. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof. You may assign your rights under this Agreement to any party that consents to, and agrees to be bound by, its terms and conditions; Percepticon may assign its rights under this Agreement without condition. This Agreement will be binding upon and will inure to the benefit of the parties, their successors and permitted assigns. The parties confirm that it is their wish that this Agreement, as well as any other documents relating to this Agreement, including notices, have been and shall be drawn up in the English language only.
Percepticon Basic Service Level Agreement for SaaS, Hosting, and other Datacenter Services
This Service Level Agreement ("SLA") expresses the basic level of service for Percepticon SaaS, Hosting, and other Datacenter Services ("Service" or "Services"). This SLA is between Percepticon Corporation ("Percepticon") and each user of the Services ("Customer"). Unless otherwise indicated herein, this SLA is subject to the provisions of the Percepticon Terms of Service ("Terms"). This SLA applies separately to each Percepticon Service. Percepticon may modify this SLA from time to time.Percepticon will employ reasonable efforts to maintain a Monthly Uptime Percentage of 99.9% for a given calendar month ("Availability"). If Percepticon does not meet the Availability, and the Customer account is current (not in a delinquent or suspended status), Customer may be eligible to receive Service credit as described below. This credit is a Customer’s sole remedy for any shortcoming of Availability. Percepticon and Customer agree as follows:
- Definitions: “Downtime” is the time for which a contracted Service listed above is not available for access or use by the Customer, as monitored by Percepticon. “Monthly Uptime Percentage” is the total number of minutes in a calendar month minus the number of minutes of Downtime in the same calendar month, divided by the total number of minutes in a calendar month. “Exclusion from Downtime” The following are excluded from Downtime for the purpose of calculating Monthly Uptime Percentage:
- Service unavailability caused by scheduled maintenance.
- Service unavailability caused by application vulnerabilities or bugs
- Service unavailability with Service solutions that have been recommended for or are pending major upgrade
- Service unavailability caused by events outside of the direct control of Percepticon, its providers, vendors, or subcontractor(s), including any force majeure event, unavailability of Customer systems, general Internet failures, and the failure of any other technology or equipment used to connect to or access the service.
- Service Credit: An account credit may be issued if Percepticon does not meet the Availability for a given month of Service. Upon approval of a claim, at our sole discretion, we will issue a Service credit of 5% of the applicable monthly fee to the Customer account.
- Claim Procedure: To request a service credit, Customer must submit a claim by email to firstname.lastname@example.org within 30 days of the end of the month during which the Service did not meet Availability, and include the following information:
- Customer name, email, phone and account information
- Service description
- Detailed information supporting your claim of Downtime, including date, time, and a description of the incident and affected service