Last updated: November 2018
1.
Welcome to DealMaker, a website
and software system (the “Site”),
created and owned by DealMaker
Solutions Inc. o/a DealMaker (“we”, “us”, or “DealMaker”). Through this Site, we provide services and materials (“Services”) designed to assist: (i) Site visitors
including investors (“Site Visitors”);
(ii) individuals or entities who have purchased a license to use our services
and their authorized users (“Enterprise Users”); and (iii) individuals or entities who are invited to create an
account (“Account Users”) and their
authorized users and related entities who create a portal to manage and track
their stakeholder communications (“Portal Users”). Site Visitors, Enterprise Users, Account Users and Portal
Users are collectively referred to herein as “Users” (or, individually, “you”). All Users’ access and use of the Site,
along with any services or materials contained or referenced herein, are
governed by and subject to this Terms of Use Agreement (the “Terms”), as well as all applicable laws.
PLEASE READ CAREFULLY THE FOLLOWING TERMS OF SERVICE.
By logging in and using the Site, you represent that you (1) are over
the age of 18, (2) have the right and authority to legally bind yourself or
your company, firm and/or employer to these Terms, (3) have not been previously
suspended or removed from the Site by DealMaker,
and (4) are not a competitor of DealMaker or
acting on behalf of any such competitor.
IF YOU DO NOT AGREE TO ALL OF THESE TERMS OR CANNOT
TRUTHFULLY MAKE SUCH REPRESENTATIONS, SELECT THE “DECLINE” BUTTON AT THE END OF
THIS AGREEMENT AND DO NOT USE THE SITE OR SERVICE. By selecting “accept”,
you agree on your and your company’s, firm’s or employer’s behalf to be legally
bound by all these Terms, including any additional guidelines and future
modifications hereto.
TERMS APPLICABLE TO ALL USERS
2.
Updates and Communications
2.1
Updates. We may revise these Terms or any additional terms
and conditions that are relevant to a particular Service from time to time to
reflect changes in the law or to the Services. We will post the revised
terms on the Site with a “last updated” date. Those revised terms become
part of these Terms. It is your responsibility to review the Site on a
regular basis to obtain timely notice of any revisions. If you continue
to use the Services after the revisions take effect, you are thereby bound by
these Terms as revised. You agree that we shall not be liable to you or
to any third party by reason of modification of the Terms.
2.2
Communications. You agree to receive electronically all
communications, agreements and notices that we provide in connection with the
Services (“Communications”), including by e-mail, text, notifications by
Messenger Feature, or by posting them on the Site or through any
Services. You agree that all Communications that we provide to you
electronically satisfy any legal requirement that Communications be in
writing. You agree to keep your Site account (“Account”) contact
information current so that we can send you Communications.
3.
Additional Terms for Certain Services.
3.1
Electronic Signature. If you use the electronic signature
feature of the Services, you accept the additional terms applicable to the
Electronic Signature feature. (Schedule A).
3.2
Messenger Feature. If you use the Messenger Feature, you
accept the additional terms applicable to the Messenger Feature (Schedule B).
3.3
Escrow Services. If you use the escrow features and
services of DealMaker, you accept the terms of use for our <%= link_to 'Escrow
Services', funds_path %>.
4.
Users
4.1
Enterprise Users. If you are an Enterprise User and you
are, or your organization is, bound by a separate license agreement with
DealMaker (“Corporate Terms”), then these Terms will apply to use of the
Site or any Services only to the extent such use is not already governed by the
Corporate Terms. The Corporate Terms include restrictions and
requirements that outline the features that an Enterprise User will be able to
access. For the avoidance of doubt, all references to the “Site” in these
Terms also includes the Services. By using the Services as an Enterprise
User, you represent that you are a legally qualified professional or are acting
on the authority of and under the supervision of a legally qualified
professional. If you place any information on the site that is subject to
Attorney-Client privilege, you represent that you have the authority to do so
and understand the consequences thereof.
4.2
Account Users. To be an Account User, you must be invited
to register for an Account on the Site. You are solely responsible for
maintaining the confidentiality of your Account and password and for
restricting access to your computer, and you agree to accept responsibility for
all activities that occur under your Account or password. You agree that
the information you provide on registration and at all other times will be
true, accurate, current, and complete. You also agree that you will keep this
information accurate and up-to-date at all times. If you have reason to
believe that your Account is no longer secure (e.g., in the event of a loss,
theft or unauthorized disclosure or use of your Account identification,
password, or any credit, debit or charge card number, if applicable), then you
agree to immediately notify us. You may be liable for the losses incurred
by us or others due to any unauthorized use of your Account. If you are
an Account User, you agree not to impersonate any person or entity, falsely
claim an affiliation with any person or entity, or access the Accounts of
others without permission, forge another person’s digital signature,
misrepresent the source, identity, or content of information transmitted via
the Site, or perform any other similar fraudulent activity. You agree
that you shall be bound by these terms and the additional terms applicable to
Account Users. The additional terms for Account Users form part
of these Terms.
4.3
Portal Users. If you have, or your organization has,
registered for an Account to use the company services (such as managing
stakeholder communications and workflows), you are a “Portal User” and shall be
bound by any applicable subscription plan (“Subscription Plan”) that you
have, or your organization has, entered into, as well as these Terms and the
additional terms applicable to Portal Users. The additional terms for
Portal Users form part of these Terms.
4.4
Site Visitors. A Site Visitor is bound by these Terms and
can terminate its use of the Site at any time by ceasing further use of the
Site. We may terminate your use of the Site and deny you access to the
Site in our sole discretion for any reason or no reason, including for
violation of these Terms. A Site Visitor may not remove, circumvent,
disable, damage or otherwise interfere with security-related features of the
Site, features that prevent or restrict use or copying of any content
accessible through the Site, or features that enforce limitations on the use of
the Site.
4.5 Reverse
Engineering, etc. No User may reverse engineer, decompile, disassemble or
otherwise attempt to discover the source code of the Site or any part thereof,
except and only to the extent that such activity is expressly permitted by
applicable law notwithstanding this limitation.
5.
Limited License
Upon your acceptance of these Terms, we grant you a
limited, non-exclusive and non-transferable license to access and use the Site
only as expressly permitted in these Terms and any applicable Corporate Terms
or Subscription Agreement for the use of the Services. You shall not use
or permit use of the Site for any illegal purpose or in any manner inconsistent with the provisions of these
Terms. If you are or become a direct competitor to us, you may not access
or use the Services without our explicit, advance, written consent, and then
only for the purposes authorized in writing. Except as otherwise
restricted by these Terms, you may use, display, copy, and download content and
materials on the Site provided that you: (a) retain all copyright and
other proprietary notices on any content or materials uploaded or displayed by
you; and (b) use such materials in accordance with any applicable laws or
obligations you may have. Any violation by you of the license provisions
contained herein may result in the immediate termination of your right to use
the Site, as well as potential other claims depending on the circumstances.
6.
Intellectual Property.
6.1
General Rights. The Site contains materials that are
proprietary and are protected by copyright laws, international treaty
provisions, trademarks, service marks, and other intellectual property laws and
treaties. The Site is also protected as a collective work or compilation
under copyright and other laws and treaties. You agree to abide by all
applicable copyright and other laws, as well as any additional copyright
notices or restrictions contained on the Site. You acknowledge that the
Site contains original works that have been developed, compiled, prepared, revised,
selected, and arranged by us and others through the application of methods and
standards of skill and judgment developed and applied through the expenditure
of substantial time, effort, and money and constitutes valuable intellectual
property of DealMaker and such others. All present and future rights in
and to trade secrets, patents, designs, copyrights, trademarks, database
rights, service marks, know-how, and other intellectual property or other
proprietary rights of any type, the technical and functional documentation for
the Services (“Documentation”), any improvements, design contributions,
or derivative works thereof, and any knowledge or process related thereto,
including rights in and to all applications and registrations relating to the
Site, shall, as between you and DealMaker, at all times be and remain the sole
and exclusive property of DealMaker.
6.2
Trademarks. The trademarks, logos, taglines and service
marks displayed on the Site (collectively, the “Trademarks”) are
registered and unregistered Trademarks of DealMaker and others (including
Enterprise Users and Account Users in some cases). The Trademarks may not
be used in any advertising or publicity or otherwise to indicate DealMaker’s
sponsorship of or affiliation with any product, service, event or organization
without DealMaker’s prior express written permission. DealMaker
acknowledges the Trademarks of other organizations for their respective
products or services mentioned on the Site. Any rights not expressly
granted in these Terms are reserved by DealMaker, Inc. Other than as
provided in these Terms, your use of the Trademarks, or any other DealMaker
content, is strictly prohibited.
6.3
Software Use Restrictions. Unauthorized reproduction or
distribution of the software is expressly prohibited by law, and may result in
civil and criminal penalties. Violators may be prosecuted.
6.4
Document Content and Submissions/User Content.
(a)
Submissions. The Site or Services may enable you to submit,
post, upload, or otherwise make available (collectively, “Post”) content
such as questions, public messages, ideas, product feedback, comments and other
content (collectively, “User Content”) that may or may not be viewable
by other users. If you Post User Content, unless we indicate otherwise,
you grant us a nonexclusive, royalty-free, and fully sublicensable right to
access, view, use, reproduce, modify, adapt, publish, translate, create
derivative works from, distribute, copy, and display such User Content
throughout the world in any form, media, or technology now known or hereafter
developed. You also permit any other user to view, copy, access, store,
or reproduce your User Content for that user’s personal use. You grant us
the right to use your name and other information about you that you submit in
connection with your User Content. You represent and warrant that:
(a) you own or otherwise control all of the rights to the User Content that you
Post; (b) the User Content you Post is truthful and accurate; and (c) use of
the User Content you Post does not violate these Terms or any applicable
laws. For the avoidance of doubt, User Content does not include any
document, such as a contract, disclosure, notice that you deposit into the
Electronic Signature service for processing.
(b)
Screening & Removal. You acknowledge and agree that we
and our designees have the right, but not the obligation, at our discretion, to
pre-screen User Content before its appearance on the Site or Services.
You further acknowledge and agree that DealMaker reserves the right (but does not
assume the obligation) in its sole discretion to reject, move, edit or remove
any of your User Content. Without limiting the foregoing, DealMaker and
its designees shall have the right to remove any User Content that violates
these Terms or is otherwise objectionable in DealMaker’s sole discretion.
You acknowledge and agree that DealMaker does not verify, adopt, ratify, or
sanction User Content, and you agree that you must evaluate and bear all risks
associated with your User Content or your reliance on the accuracy,
completeness, or usefulness of the User Content of third parties that is posted
on the Site.
7.
Trial Period and Subscriptions.
7.1
Terms Continue to Apply. These Terms, as modified, govern
your use of the Site. If you choose to subscribe to the Services, then
after any trial period ends, the Terms shall continue in effect and you will be
required to pay the applicable subscription fee for the Services, and otherwise
comply with the Terms and any other agreement between you and DealMaker.
8.
Agreement Templates and Example Forms.
8.1
DealMaker Does Not Constitute Legal or Financial Advice.
The Site may provide examples of agreements, documents and other general legal
information provided by us or third parties; however, any general legal
information or sample templates provided as part of the Services are for
example purposes only and may not be suitable to your circumstances. If
you are not a lawyer, you should consult a lawyer regarding how any legal
document may affect or impair your legal rights. The information,
forms, and other resources available on or through the Site or as part of the
Services are provided for example purposes only and in no way should be
considered to be a substitute for the advice of a lawyer.
8.2
DealMaker Does Not Constitute Legal or Financial Advice.
DealMaker IS NOT A LAW FIRM AND DOES NOT ENGAGE IN THE PRACTICE OF LAW.
NOTHING ON THE SITE SHOULD BE CONSTRUED AS AN ATTEMPT TO OFFER OR RENDER LEGAL
SERVICES AND OUR EMPLOYEES ARE NOT ACTING AS YOUR COUNSEL.
8.3
DealMaker Does Not Constitute Legal or Financial Advice. No
part of the Services should be applied to any specific or general factual
situation. Use of the Site or the Services does not create or constitute
an attorney-client relationship.
8.4
WITHOUT WARRANTY. ALL SAMPLE TEMPLATES AND RELATED
MATERIALS, IF ANY, MADE AVAILABLE AS PART OF THE SERVICES ARE PROVIDED “AS IS,”
WITHOUT ANY EXPRESS OR IMPLIED WARRANTY OF ANY KIND, INCLUDING WARRANTIES OF
MERCHANTABILITY, MERCHANTABLE QUALITY, LEGAL EFFECT, ACCURACY, APPROPRIATENESS,
COMPLETENESS, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE.
8.5
DealMaker Does Not Constitute Legal or Financial Advice.
All information, forms, and other resources available on or through the Site
should be modified to meet all the applicable laws and regulations in your
city, state, and county, as applicable. You understand that you are using
any and all information, forms, and other resources available as part of the
Services or on or through the Site at your own risk.
9.
Pricing
9.1
The prices, features, and options of the Services depend on the
type of license you have entered into. For example, if you are an
Enterprise User, pricing is based on tiers of use described in the Corporate
Terms. Portal Users may purchase optional services on a periodic or
per-use basis pursuant to a Subscription Plan. We may change the prices
for or alter the features and options without notice, and if you use such
features or options after the price revisions take effect, you shall be bound
by the revised pricing.
10.
Restrictions on the Use of the Site
10.1
Restrictions on Use. By using the Site, including any
Service, you specifically agree not to engage in any activity or transmit any
information that, in our sole discretion:
(a)
Is illegal, or violates any federal, provincial, state, or local
law, by-law or regulation;
(b)
Advocates illegal activity or discusses illegal activities with
the intent to commit them;
(c)
Violates any third-party right, including, but not limited to,
right of privacy, right of publicity, copyright, trademark, patent, trade
secret, or any other intellectual property or proprietary rights;
(d)
Is harmful, threatening, abusive, harassing, tortious, indecent,
defamatory, sexually explicit or pornographic, discriminatory, vulgar, profane,
obscene, libelous, hate speech, violent or inciting violence, inflammatory, or
otherwise objectionable;
(e)
Interferes with any other party’s use and enjoyment of the Services;
(f)
Constitutes an attempt to impersonate another person or entity;
(g)
Is commercial in a way that violates these Terms, including but
not limited to, using the Site for spam, surveys, contests, pyramid schemes, or
other advertising materials;
(h)
Falsely states, misrepresents, or conceals your affiliation with
another person or entity;
(i)
Accesses or uses the Account of another user without permission;
(j)
Distributes computer viruses or other code, files, or programs
that interrupt, destroy, or limit the functionality of any computer software or
hardware or electronic communications equipment;
(k)
Interferes with, disrupts, disables, overburdens, or destroys the
functionality or use of any features of the Site, or the servers or networks
connected to the Site, or any of the Services;
(l)
“Hacks” or accesses without permission our proprietary or
confidential records, those of another user, or those of anyone else;
(m)
Improperly solicits personal or sensitive information from other
users including without limitation address, credit card or financial account
information, or passwords;
(n)
Decompiles, reverse engineers, disassembles or otherwise attempts
to derive source code from the Site, except as expressly permitted in these
Terms or by applicable law, unless and then only to the extent permitted by
applicable law without consent;
(o)
Removes, circumvents, disables, damages or otherwise interferes
with security-related features, or features that enforce limitations on use of,
the Site;
(p)
Uses automated or manual means to violate the restrictions in any
robot exclusion headers on the Site, if any, or bypasses or circumvents other
measures employed to prevent or limit access, for example by engaging in
practices such as “screen scraping,” “database scraping,” or any other activity
with the purpose of obtaining lists of users or other information;
(q)
Modifies, copies, scrapes or crawls, displays, distributes,
publishes, licenses, sells, rents, leases, lends, transfers or otherwise
commercializes any materials or content on the Site;
(r)
Uses the Services for benchmarking, or to compile information for
a product or service;
(s)
Downloads (other than through page caching necessary for personal
use, or as otherwise expressly permitted by these Terms), distributes, posts,
transmits, performs, reproduces, broadcasts, duplicates, uploads, licenses,
creates derivative works from, or offers for sale any content or other
information contained on or obtained from or through the Site or Services, by
any means except as provided for in these Terms or with the prior written
consent of DealMaker; or
(t)
Attempts to do any of the foregoing.
If you believe content on the Site violates the above
restrictions, please contact us immediately at info@dealmaker.tech.
10.2
Restrictions on Use. In addition, Users shall not, and
shall not permit others to, do the following with respect to the Services:
(a)
Use the Services, or allow others to use them, in a manner that
circumvents contractual usage restrictions or that exceeds authorized use set
forth in these Terms;
(b)
License, sub-license, sell, re-sell, rent, lease, transfer,
distribute or time share or otherwise make any portion of the Services or
Documentation available for access by third parties except as otherwise
expressly provided in these Terms; or
(c)
Access or use the Services or Documentation for the purpose of
developing or operating products or services intended to be offered to third
parties in competition with the Services or allow access by a direct competitor
of DealMaker.
10.3
Restrictions on Use. You may not frame the Site, place pop-up
windows over its pages, or otherwise affect the display of its pages. You
may link to the Site, provided that you acknowledge and agree that you will not
link the Site to any website containing any inappropriate, profane, defamatory,
infringing, obscene, indecent, or unlawful topic, name, material, or
information or that violates any intellectual property, proprietary, privacy,
or publicity rights. Any violation of this provision may, in our sole
discretion, result in termination of your use of and access to the Site
effective immediately.
10.4
Monitoring. You acknowledge that we have no obligation to
monitor your – or anyone else’s – access to or use of the Site for violations
of these Terms, or to review or edit any content. However, we have the
right to do so for the purpose of operating and improving the Site (including
without limitation for fraud prevention, risk assessment, investigation and
customer support purposes, analytics, and advertising), to ensure your
compliance with these Terms and to comply with applicable law or the order or
requirement of a court, consent decree, administrative agency or other
governmental body.
11.
Privacy
11.1
DealMaker Privacy Policy. You acknowledge that except as
described in these Terms or applicable Corporate Terms, the information you
provide to us or that we collect will be used and protected as described in the
DealMaker <%= link_to('Privacy Policy', privacy_path) %>.
Please read the Privacy Policy carefully.
11.2
Access & Disclosure. We may access, preserve, or share
any of your information when we believe in good faith that such sharing is
reasonably necessary to investigate, prevent, or take action regarding possible
illegal activities or to comply with legal process (e.g. a subpoena or other
legal process). We may also share your information in situations
involving potential threats to the physical safety of any person, violations of
the DealMaker Privacy Policy or our user agreements or terms; or to respond to
the claims of violation of the rights of third parties and/or to protect the
rights, property and safety of DealMaker, our employees, users, or the
public. This may involve the sharing of your information with law
enforcement, government agencies, courts, and/or other organizations.
12.
Warranties and Disclaimers
12.1
No Warranties. The Services, Documentation, and Site are
provided “as is” and “as available.” Your use of the Services,
Documentation, and Site shall be at your sole risk. THE SERVICES,
DOCUMENTATION AND THE SITE ARE PROVIDED “AS IS,” WITHOUT ANY EXPRESS OR IMPLIED
WARRANTY OF ANY KIND, INCLUDING WARRANTIES OF MERCHANTABILITY, MERCHANTABLE
QUALITY, LEGAL EFFECT, ACCURACY, APPROPRIATENESS, COMPLETENESS,
NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. DealMaker DOES NOT
WARRANT THAT THE SERVICES, DOCUMENTATION, OR SITE ARE OR WILL BE ERROR-FREE,
WILL MEET YOUR REQUIREMENTS, OR BE TIMELY OR SECURE. You will be solely
responsible for any damage resulting from the use of the Services,
Documentation, or Site.
12.2
No Warranties. DealMaker makes no warranties or
representations that Services, Documentation, and Site have been and will be
provided with due skill, care and diligence or about the accuracy or
completeness of the Services, Documentation, and Site content and assumes no
responsibility for any: (i) errors, mistakes, or inaccuracies of content;
(ii) personal injury or property damage, of any nature whatsoever, resulting
from your access to and use of Services, Documentation, and Site; (iii) any
unauthorized access to or use of our servers and/or any and all personal
information and/or financial information stored therein; (iv) any interruption
or cessation of transmission to or from the Site; (v) any bugs, viruses, Trojan
horses, or the like that may be transmitted to or through the Site through the
actions of any third party; (vi) any loss of your data or content from the
Site; and/or (vii) any errors or omissions in any content or for any loss or
damage of any kind incurred as a result of the use of any content posted,
emailed, transmitted, or otherwise made available via the Services,
Documentation, and Site. You will not have the right to make or pass on
any representation or warranty on behalf of DealMaker to any third party.
Because some jurisdictions do not allow limitations on implied warranties, the
above limitation may not apply to you. In that event, such warranties are
limited to the maximum extent permitted by, and for the minimum warranty
period allowed by the mandatory applicable law.
12.3
No Endorsement. DealMaker does not warrant, endorse,
guarantee, or assume responsibility for any product or service advertised or
offered by a third party through the Site, and DealMaker will not be a party to
or in any way be responsible for monitoring any transaction between you and
third-party providers of products or services. You are solely responsible
for all of your communications and interactions with other persons with whom
you communicate or interact as a result of your use of the Site.
12.4
Application of Local Law. If you are a California resident,
you hereby waive California Civil Code §1542, which says: “A general
release does not extend to claims which the creditor does not know or suspect
to exist in his favor at the time of executing the release, which if known by
him must have materially affected his settlement with the debtor.” This release
includes the criminal acts of others. Some jurisdictions do not allow the
exclusion of certain warranties or the limitation or exclusion of liability for
incidental or consequential damages such as in this Section 11 or below in
Section 13. Accordingly, some of these limitations may not apply to you.
13.
INDEMNIFICATION OBLIGATIONS
13.1
Indemnity. You will defend, indemnify, and hold us, our
affiliates, officers, directors, employees, suppliers, consultants, and agents
harmless from any and all third party claims, liability, damages, and costs
(including, but not limited to, legal fees) arising from or related to, as
applicable: (a) your access to and use of the Site; (b) violation of
these Terms by you as applicable; (c) infringement of any intellectual property
or other right of any person or entity by you; (d) the nature and content of
all User Data uploaded or provided by you; (e) your use of or reliance upon any
User Content uploaded by any third party; or (f) any products or services
purchased or obtained by you in connection with the Site.
13.2
Rights. DealMaker retains the exclusive right to settle,
compromise and pay, without your prior consent, any and all claims or causes of
action which are brought against us. We reserve 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 in which we are named as
a defendant and/or for which you have indemnity obligations without our prior
written consent. We will use reasonable efforts to notify you of any such
claim, action or proceeding upon becoming aware of it.
14.
Limitations of Liability
14.1
Disclaimer of Consequential Damages. Notwithstanding
anything to the contrary contained in these terms, DealMaker will not, under
any circumstances, be liable to you for any consequential, incidental, special,
cover, punitive or exemplary damages arising out of or related to the
transactions contemplated under these terms, including, but not limited to,
goodwill, work stoppage, lost profits or loss of business, even if apprised of
the likelihood of such losses, and whether such claims are made based on
contract, tort (including negligence), or any other legal theory.
14.2
Limitations. To the fullest extent permitted by applicable
law, in no event shall DealMaker be liable to you for any direct, indirect,
incidental, special, punitive, or consequential damages whatsoever resulting
from any: (a) use of the Site, Documentation, or Services; (b) errors,
mistakes, or inaccuracies of content; (c) personal injury or property damage,
of any nature whatsoever, resulting from your access to and use of the Site,
Documentation, or Services; (d) any unauthorized access to or use of our
servers and/or any and all personal information and/or financial information
stored therein; (e) any interruption or cessation of transmission to or from
our servers; (f) any bugs, viruses, Trojan horses, or the like, which may be
transmitted to or through the Site, Documentation, or Services by any third
party; (g) any loss of your data or content from the Site, Documentation, or
Services; (h) any errors or omissions in any content or for any loss or damage
of any kind incurred as a result of your use of any content posted,
transmitted, or otherwise made available via the Site, Documentation, or
Services, whether based on warranty, contract, tort (including negligence), or
any other legal theory, and whether or not DealMaker is advised of the
possibility of such damages; and/or (i) the disclosure of information pursuant
to these terms or our Privacy Policy.
14.3
Local Law. Some countries and jurisdictions do not allow
the limitation or exclusion of consequential, direct, indirect, or other
damages in contracts with consumers and to the extent you are a consumer the
limitations or exclusions in this Section 13.1 may not apply to you.
14.4
Cap on Damages. Our total liability to you for any cause of
action arising out of or related to these terms or to your use of the Site
(including without limitation warranty claims), regardless of the forum and
regardless of whether any action or claim is based on contract, tort (including
negligence), or any other legal or equitable theory, will not exceed the total
amount paid by you to DealMaker for the Service(s) during the twelve (12) month
period preceding the date of the first event giving rise to liability, or $100,
whichever is greater. The existence of more than one claim shall not
enlarge this limit.
14.5
Independent Allocations of Risk. Each provision of these
Terms that provides for a limitation of liability, disclaimer of warranties, or
exclusion of damages represents an agreed allocation of the risks of these
Terms between the parties. But for this allocation of risk, DealMaker
would not be willing to provide the Services at the prices for which they are
provided. This allocation is an essential element of the basis of the
bargain between the parties. Each of these provisions is severable and
independent of all other provisions of these Terms, and each of these
provisions will apply even if the warranties in these Terms have failed of
their essential purpose.
14.6
Jurisdictional Limitations.
14.6.1 Because some
jurisdictions do not allow limitation of liability in certain instances,
portions of the above limitation may not apply to you. In that event,
such exclusions and limitations shall apply to the maximum extent permitted by
applicable mandatory law (and our liability shall be limited or excluded as
permitted under mandatory applicable law).
15.
General
15.1
Third Party Content. We may provide, or third parties may
provide, links to other third-party web sites, services, or resources that are
beyond our control. We make no representations as to the quality,
suitability, functionality, or legality of any third-party content to which
links may be provided, and you hereby waive any claim you might have against us
with respect to such services. DealMaker IS NOT RESPONSIBLE FOR ANY USER
CONTENT OR FOR THE CONTENT ON THE INTERNET OR WEB PAGES THAT ARE LOCATED OUTSIDE
THE SITE OR POSTS OF USER CONTENT. Your correspondence or business
dealings with, or participation in promotions of, advertisers or partners found
on or through the Site, including payment and delivery of related goods or
services, and any other terms, conditions, warranties, or representations
associated with such dealings, are solely between you and such advertiser or
partner. You agree that we are not responsible or liable for any loss or
damage of any sort incurred as the result of any such dealings or as the result
of the presence of such advertisers or links to third-party web sites or
resources on the Site.
15.2
Relationship. At all times, you and DealMaker are
independent contractors, and are not the agents or representatives of the
other. These Terms are not intended to create a joint venture,
partnership, or franchise relationship between the parties. Non-parties
do not benefit from and cannot enforce these Terms. There are no
third-party beneficiaries to these Terms. You must not represent to
anyone that you are an agent of DealMaker or is otherwise authorized to bind or
commit DealMaker in any way without DealMaker’s prior written authorization.
15.3
Assignability. You may not assign your rights or
obligations under these Terms without DealMaker’s prior written consent.
If consent is given, these Terms will bind your successors and assigns.
Any attempt by you to transfer your rights, duties, or obligations under these
Terms except as expressly provided in these Terms is void. DealMaker may
freely assign its rights, duties, and obligations under these Terms.
15.4
Notices. Except as otherwise permitted by these Terms, any
notice required or permitted to be given in connection with the Services will
be effective only if it is in writing and sent using: (a) the Services;
(b) by certified or registered mail; or (c) insured courier, to the appropriate
party at the address set forth in your registration information or on the Site.
15.5
Force Majeure. Except for any payment obligations, neither
you nor DealMaker will be liable for failure to perform any obligation under
these Terms to the extent such failure is caused by a force majeure event
(including acts of God, natural disasters, war, civil disturbance, action by
governmental entity, strike and other causes beyond the party’s reasonable
control). The party affected by the force majeure event will provide
notice to the other party within a commercially reasonable time and will use
commercially reasonable efforts to resume performance as soon as practicable. Obligations
not performed due to a force majeure event will be performed as soon as
reasonably possible when the force majeure event concludes.
15.6
Initial Dispute Resolution. Most disputes can be resolved
without resort to arbitration. If you have any dispute with us, you agree
that before taking any formal action, you will contact us
at info@dealmaker.tech, and provide a brief, written description of the
dispute and your contact information (including your username, if your dispute
relates to an Account). Except for intellectual property, you and
DealMaker agree to use reasonable efforts to settle any dispute, claim,
question, or disagreement directly through consultation, and good faith
negotiations shall be a condition to either party initiating a lawsuit or
arbitration.
15.7
Binding Arbitration. If the parties do not reach an
agreed-upon solution within a period of thirty (30) days from the time informal
dispute resolution is initiated under the Initial Dispute Resolution provision
in Section 14.6 above, then either party may initiate binding arbitration as
the sole means to resolve claims, (except as provided below) subject to these
Terms set forth below. Specifically, all claims arising out of or
relating to these Terms, the parties’ relationship with each other, and/or your
use of the Services, Documentation or Site shall be finally settled by binding
arbitration administered by JAMS in accordance with the JAMS Streamlined
Arbitration Procedure Rules for claims that do not exceed $250,000 and the JAMS
Comprehensive Arbitration Rules and Procedures for claims exceeding $250,000 in
effect at the time the arbitration is initiated, excluding any rules or
procedures governing or permitting class actions.
15.8
Class Action Waiver. The parties further agree that the arbitration
shall be conducted in the party’s respective individual capacities only and not
as a class action or other representative action, and the parties expressly
waive their right to file a class action or seek relief on a class basis.
YOU AND DealMaker AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN
YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY
PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator
determines that the class action waiver set forth in this paragraph is void or
unenforceable for any reason or that an arbitration can proceed on a class
basis, then the arbitration provisions set forth above shall be deemed null and
void in their entirety and the parties shall be deemed to have not agreed to
arbitrate disputes.
15.9
Survival. This Mandatory Arbitration, Waiver of Class
Actions section shall survive any termination of your use of the Site.
15.10
Entire Terms. These Terms, which include the language and
paragraphs preceding Section 1, are the final, complete, and exclusive
expression of the agreement between you and DealMaker regarding the Services
provided under these Terms. These Terms supersede and the parties
disclaim any reliance on previous oral and written communications (including any
confidentiality agreements pertaining to the Services under these Terms) with
respect to the subject matter hereof and apply to the exclusion of any other
terms that you seek to impose or incorporate, or which are implied by trade,
custom, practice or course of dealing. DealMaker hereby rejects any
additional or conflicting terms appearing in a purchase order or any other
ordering materials submitted by you and conditions assent solely based on these
Terms and conditions of these Terms as offered by DealMaker. Except as
explicitly permitted in these Terms, no modification or amendment of these
Terms shall be effective unless it is in writing and signed by an authorized
agent of the party against whom the modification or amendment is being asserted.
In the event of an inconsistency or conflict, the order of precedence in
descending order of control is as follows: (a) the Subscription Plan; (b)
any attachments or appendix(ices) to the Service Schedule(s); (c) the Service
Schedule; and (d) these Terms.
15.11 Governing
Law & Venue. These Terms will be interpreted, construed, and enforced
in all respects in accordance with the local laws of the Province of Ontario,
Canada, without reference to any conflict of law rules to the contrary.
15.12
Waiver. The waiver by either you or DealMaker of any breach
of any provision of these Terms does not waive any other breach. The
failure of any party to these Terms to insist on strict performance of any
covenant or obligation in accordance with these Terms will not be a waiver of
such party’s right to demand strict compliance in the future, nor will the same
be construed as a DealMaker of these Terms.
15.13 Severability.
If any part of these Terms is found to be illegal, unenforceable, or invalid,
the remaining portions of these Terms will remain in full force and
effect. If any material limitation or restriction on the grant of any
license to you under these Terms is found to be illegal, unenforceable, or
invalid, the license will immediately terminate.
15.14
Modification of this Agreement. DealMaker reserves the
right, at our discretion, to change, modify, add, or remove portions of the
Terms (including DealMaker’s Privacy Policy) at any time. Please check
these Terms and our Privacy Policy periodically for changes. Your
continued use of the Site after the posting of changes constitutes your binding
acceptance of such changes. For any material changes to these Terms, such
amended terms will automatically be effective ten (10) days after they are
initially posted on the Site.
15.15 Claims.
YOU AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SITE MUST
COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES.
OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
* * *
ADDITIONAL TERMS APPLICABLE TO “ACCOUNT
USERS”
16.
Restrictions on Use
16.1
Restrictions on Use. Your use of the Site is subject to all
applicable local, provincial, state and federal laws and regulations. You
may not use, allow, or enable others to use the Site, or knowingly condone use
of the Site by others, in any manner that is, attempts to, or is likely to:
_
be obscene, fraudulent, defamatory,
libelous, indecent, discourteous, racially or ethnically offensive, harassing,
threatening, abusive, pornographic or discriminatory;
_
affect us adversely or reflect negatively
on us, the Site, our goodwill, name or reputation or cause duress, distress, or
discomfort to us or anyone else, or discourage any person, firm, or enterprise
from using all or any portion, features, or functions of the Site, or from
advertising, linking, or becoming a supplier to us in connection with the Site;
_
send or result in the transmission of
junk e-mail, chain letters, duplicative or unsolicited messages, or so-called
“spamming” and “phishing”;
_
transmit, distribute, or upload content
or programs that contain any viruses, Trojan horses, worms or other disabling
devices or harmful components intended to damage, detrimentally interfere with,
surreptitiously intercept, or expropriate any Site, data or personal
information;
_
modify, disrupt, impair, alter, or
interfere with the use, features, functions, operation, or maintenance of the
Site or the rights or use and enjoyment of the Site by any other user;
_
advocate or encourage any illegal
activity;
_
infringe upon or misappropriate the
copyright, patent, trademark, trade secret, publicity rights or other
intellectual property or proprietary rights of ours or any third party;
_
violate the privacy of any individual,
including users of the Site; or
_
violate any applicable local,
provincial, state or national laws or regulations (anywhere in the world).
17.
Privacy and Personal Information
17.1
Use of Email. We may use your email address to verify your
identity, protect against fraud, and contact you. In addition, we may use
it to send you updates about your Account, new products and services, and
Services updates.
17.2
Personal Information. Personal information submitted by
Users to the Site may be employed for the purposes of maintaining the integrity
of the Site and its contents, contacting our Users when necessary, and
improving the quality of Services. We may also collect information
specific to how you use the Internet. Services we use note details such
as the server you are logged onto and your IP address. This information
is obtained for the purpose of providing certain of our Services (such as the
audit trail for our electronic signature feature). We may ask you for
more personal information from time to time in a survey format. This
information is specifically used to ensure that the Services are up-to-date and
relevant, and that the products and services provided to you in advertising
format are relevant and of interest to you. Any information used as
demographics will not reveal the source, and will be kept secure. This
further information provided by you is on an optional basis.
17.3
Disclosure by Law. We reserve the right to disclose your
personally identifiable information as required by law and when we believe that
disclosure is necessary to protect our rights and/or comply with a judicial
proceeding, court order, or legal process served on our Site(s); or to protect
our company. While we make every effort to ensure the integrity and
security of our network and Sites, we cannot guarantee that our security measures
will prevent third-party “hackers” from illegally obtaining this information.
17.4
Further Information. For more information about our
treatment and protection of personal information, please read our
<%= link_to('Privacy Policy', privacy_path) %>. This
policy explains how we treats your personal information, and protects your
privacy, when you use the Site. Questions or requests with respect to
your personal information may be sent via email to info@dealmaker.tech.
ADDITIONAL TERMS SPECIFIC TO “PORTAL
USERS”
18.
Right to Use Services
18.1
Right to Use Services. Subject to these Terms, DealMaker
will provide the Portal Services to Portal Users in accordance with each Portal
User’s Subscription Plan, and DealMaker grants to each Portal User a limited
non-exclusive, non-transferrable right and license during the Term, solely in
accordance with these Terms to: (a) use the Portal Services; (b)
implement, configure and permit authorized Users to access and use the Portal
Services up to any applicable limits or maximums; and (c) access and use the
Documentation.
19.
Payment Terms
19.1
Subscription Plan. The prices, features, and options of the
Portal Services depend on the Subscription Plan selected as well as any changes
instigated by Portal User. DealMaker does not represent or warrant that a
particular Subscription Plan will be offered indefinitely and reserves the
right to change the prices for or alter the features and options in a
particular Subscription Plan without prior notice.
19.2
No Refunds. Portal User will timely pay DealMaker all fees
associated with its Subscription Plan, Account or use of the Portal Services,
including, but without limitation, by authorized Users. PORTAL USER’S
PAYMENTS ARE NON-REFUNDABLE EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS.
Charges for pre-paid Subscription Plans will be billed to Portal User in
advance. Charges for per-use purchases and standard Subscription Plan
charges will be billed in arrears unless otherwise specified in the
Subscription Plan.
19.3
Recurring Charges. When a Portal User purchases a
Subscription Plan, the Portal User must provide accurate and complete
information for a valid payment method, such as a credit card, that Portal User
is authorized to use. Portal User must promptly notify DealMaker of any
change in its invoicing address and must update its Account with any changes
related to its payment method. BY COMPLETING REGISTRATION FOR A
SUBSCRIPTION PLAN, PORTAL USER AUTHORIZES DealMaker OR ITS AGENT TO CHARGE ITS
PAYMENT METHOD ON A RECURRING (E.G., MONTHLY OR YEARLY) BASIS FOR: (a)
THE APPLICABLE SUBSCRIPTION PLAN CHARGES; (b) ANY AND ALL APPLICABLE TAXES; AND
(c) ANY OTHER CHARGES INCURRED IN CONNECTION WITH PORTAL USER’S USE OF THE
PORTAL SERVICES. The authorization continues through the applicable
Subscription Term and any Renewal Term (as defined in Section 16.11, below)
until Portal User cancels as set forth in Section of these Terms.
19.4
Late Fees & Collection Costs. If DealMaker does not
timely receive payment, Portal User shall pay all amounts due upon
demand. Any amount not paid when due will be subject to finance charges
equal to 1.5% of the unpaid balance per month (18% per year) or the highest
rate permitted by applicable law, whichever is less, determined and compounded
daily from the date due until the date paid. Portal User will reimburse
any costs or expenses (including, but not limited to, reasonable legal fees)
incurred by DealMaker to collect any amount that is not paid when due.
DealMaker may accept payment in any amount without prejudice to DealMaker’s right
to recover the balance of the amount due or to pursue any other right or
remedy. Amounts due to DealMaker may not be withheld or offset by Portal
User for any reason against amounts due or asserted to be due from DealMaker.
19.5
Invoices. DealMaker will provide billing and usage
information in a format we choose, which may change from time to time.
DealMaker reserves the right to correct any errors or mistakes that it
identifies even if it has already issued an invoice or received payment in respect
of the period invoiced. Portal User agrees to notify DealMaker about any
billing problems or discrepancies within thirty (30) days after they first
appear on an invoice. If DealMaker does not bring such
problems/discrepancies to DealMaker’s attention within thirty (30) days, Portal
User will be conclusively deemed to have waived any right to dispute such
problems or discrepancies.
19.6
Billing Cycles. Billing cycle end dates may change from
time to time. When a billing cycle covers less than or more than a full
month, DealMaker may make reasonable adjustments and/or prorations.
Portal User agrees that we may (at our option) accumulate charges incurred
during a billing cycle and submit them as one or more aggregate charges during
or at the end of a cycle, and that we may delay obtaining authorization or
payment from Portal User’s payment card issuer until submission of the
accumulated charge(s).
19.7
Tax Responsibility. All payments required by these Terms
are exclusive of all taxes, duties, levies or similar payment imposed, fines or
similar governmental assessments, including sales and use taxes, value-added
taxes, goods and services taxes, excise, business, service, and similar
transactional taxes imposed by any jurisdiction and the interest and penalties
thereon, (collectively, “Taxes”). Portal User shall be responsible
for Taxes associated with its purchase of, payment for, access to or use of the
Portal Services. Taxes shall not be deducted from the payments to
DealMaker, except as required by law, in which case Portal User shall increase
the amount payable as necessary so that after making all required deductions
and withholdings, DealMaker receives and retains (free from any Tax liability)
an amount equal to the amount it would have received had no such deductions or
withholdings been made. Portal User hereby confirms that DealMaker can
rely on the name and address set forth in its registration for a Subscription
Plan as being the place of supply for sales tax purposes. Portal User’s
obligations under this Section (Tax Responsibility) shall survive the
termination or expiration of these Terms.
19.8
Free Trial and Special Offers for Portal Services. If any
person registers for a free trial, promotional offer or other type of limited
offer for use of Portal Services (“Free Trial”), there may be additional
terms and conditions when registering for a Free Trial, and any such additional
terms and conditions are hereby incorporated into these Terms by reference and
are legally binding. This Section 14.15 (Free Trial and Special Offers
for Portal Services) supersedes and apply notwithstanding any conflicting
provisions with regard to access and use of a Free Trial. DealMaker
reserves the right to reduce the term of a trial period or end it altogether
without prior notice.
19.9
Terms of Free Trial. The version of the Portal Services
that is available for a Free Trial may not include or allow access to all
features or functions. ANY DATA THAT A PORTAL USER ENTERS INTO THE PORTAL
SERVICES, AND ANY CONFIGURATIONS MADE BY OR FOR A PORTAL USER, DURING THE FREE
TRIAL MAY BE PERMANENTLY LOST AT THE END OF THE TRIAL PERIOD UNLESS THE PORTAL
USER: (a) PURCHASES A SUBSCRIPTION PLAN THAT IS EQUIVALENT TO OR GREATER
THAN THOSE COVERED BY THE TRIAL; OR (b) EXPORTS SUCH DATA BEFORE THE END OF THE
TRIAL PERIOD.
19.10
Terms of Free Trial. Notwithstanding any other provision of
these Terms, including without limitation the warranties described in Section
11 (Warranties and Disclaimers) or any service-specific terms and conditions
applicable to a particular Portal Service, including exhibits and attachments
accompanying such schedule (“Service Schedule”), DURING A FREE TRIAL,
THE SERVICES, DOCUMENTATION AND THE SITE ARE PROVIDED “AS IS,” WITHOUT ANY
EXPRESS OR IMPLIED WARRANTY OF ANY KIND, INCLUDING WARRANTIES OF
MERCHANTABILITY, MERCHANTABLE QUALITY, LEGAL EFFECT, ACCURACY, APPROPRIATENESS,
COMPLETENESS, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE.
DealMaker DOES NOT WARRANT THAT THE SERVICES, DOCUMENTATION, OR SITE, DURING A
FREE TRIAL, ARE OR WILL BE ERROR-FREE, WILL MEET YOUR REQUIREMENTS, OR BE
TIMELY OR SECURE.
20.
Data
20.1
Data Generally. Portal Users shall be responsible for data
that provided or used in the Portal Services. Portal Users are solely
responsible for determining the suitability of the Portal Services for their
business or organization and complying with any regulations, laws, or
conventions applicable to the data provided, and use of the Portal Services and
the Site.
20.2
Personal Data. Portal User warrants that its collection and
use of any personal information or data provided while using the Site complies
with all applicable data protection laws, rules, and regulations. Portal
User acknowledges that DealMaker may process such personal data as Portal
User’s agent in accordance with the DealMaker Privacy Policy [@Henry to
insert link].
20.3
Transaction Records Storage And Deletion
(a)
Sending, Storage. During the Term, DealMaker will store
User’s documents per these Terms or any applicable License Agreement.
However, DealMaker may set and enforce limits for reasonable use in order to
prevent abusive or unduly burdensome use of Electronic Signature. You may
retrieve and store copies of transaction documents for storage outside of the
Site at any time during the Term when you are in good financial standing under
these Terms, and may delete or purge documents from the Site at its own
discretion.
(b)
Incomplete transactions. DealMaker may, at its sole
discretion, delete from the Site transactions that have not been completed
without notice upon the expiration of the Term. DealMaker assumes no
liability or responsibility for a party’s failure or inability to
electronically sign any documents within such a period of time.
20.4
Deletion. DealMaker may delete an Account and User Data,
including without limitation transaction documents (whether complete or not),
upon the expiration of the Term or termination as described in the Terms.
20.5
Retention of Transaction Data. DealMaker may retain
Transaction Data for as long as it has a business purpose to do so.
20.6
Portal User Warranties. Portal User hereby represents and
warrants to DealMaker that: (a) it has all requisite rights and authority
to use the Portal Services under these Terms and to grant all applicable rights
herein; (b) it is responsible for all use of the Portal Services associated
with its Account; (c) it is solely responsible for maintaining the
confidentiality of its Account names and password(s); (d) it agrees to
immediately notify DealMaker of any unauthorized use of Portal User’s Account
of which it becomes aware; (e) it agrees that DealMaker will not be liable for
any losses incurred as a result of a third party’s use of its Account,
regardless of whether such use is with or without its knowledge and consent;
(f) it will use the Portal Services for lawful purposes only and subject to
these Terms; (g) any information it submits to DealMaker is true, accurate, and
correct; and (h) it will not attempt to gain unauthorized access to the Site or
the DealMaker Services, other Accounts, computer Sites, or networks under the
control or responsibility of DealMaker through hacking, cracking, password
mining, or any other unauthorized means.
20.7
Suspension of Access to Portal Services. DealMaker may
suspend any use of the Portal Services, remove any content or disable or
terminate any Account that DealMaker reasonably and in good faith believes
violates these Terms. DealMaker will use commercially reasonable efforts
to notify you prior to any such suspension or disablement, unless DealMaker
reasonably believes that: (a) it is prohibited from doing so under
applicable law or under legal process, such as court or government
administrative agency processes, orders, mandates, and the like; or (b) it is
necessary to delay notice in order to prevent imminent harm to the Portal
Services or a third party. Under circumstances where notice is delayed,
DealMaker will provide the notice if and when the related restrictions in the
previous sentence no longer apply.
20.8
Term. The period of effectiveness of these Terms (“Term”),
with respect to Portal Services, begins on the date the Portal User accepts it
and continues until the Portal User’s Subscription Plan expires or its use of
the Portal Services ceases (including as a result of termination in accordance
with this Section 14), whichever is later.
20.9
Subscription Term and Automatic Renewals. Subscription
Plans automatically renew unless otherwise noted. If Portal User
purchases a Subscription Plan it will automatically renew, unless, prior to the
end of the current period of effectiveness of the Subscription Plan (“Subscription
Term”): (a) Portal User terminates its Account; (b) Portal Users sets
up its Account not to auto-renew; (c) DealMaker declines to renew a
Subscription Plan; or (d) these Terms are otherwise properly terminated as
expressly permitted herein. Each renewal period is a “Renewal Term.”
Subscription Plan fees and features may change over time and we may recommend a
new Subscription Plan that is comparable to your previous Subscription Plan
that is ending. If you accept the new Subscription Plan, its terms and
conditions with these Terms will apply in the Renewal Term and thereafter.
20.10
Termination by Portal User. You may terminate your Account
at any time upon ten (10) days’ advance written notice to DealMaker. If
you wish to terminate, you must provide notice by contacting us here: info@dealmaker.tech.
DealMaker has no obligation to consider refund requests related to a
termination of a Subscription Plan even if there has been no violation of other
Terms herein.
20.11
Default; Termination by DealMaker. A Portal User will be in
default of these Terms if: (a) it fails to timely pay any amount owed to
us or an Affiliate of ours; (b) it breaches any provision of these Terms or
violates any published policy applicable to the Portal Services; (c) if, in our
sole discretion, we believe that continued use of the Portal Services by the
Portal User (or its authorized Users or signers) creates legal risk for
DealMaker or presents a threat to the security of the Portal Services or
DealMaker’s other customers. If a Portal User is in default, we may,
without notice: (i) suspend its Account and use of the Portal Services;
(ii) terminate its Account; (iii) charge reactivation fees in order to reactivate
its Account; and (iv) pursue any other remedy available to us. A
DealMaker “Affiliate” means any legal entity that DealMaker owns or that
is under common control with DealMaker.
20.12
Effect of Termination. If these Terms expires or are
terminated for any reason: (a) Portal User will pay to DealMaker any
amounts that have accrued before, and remain unpaid, as of the date of the
termination or expiration, including those for the billing cycle in which
termination occurs; (b) any and all of Portal User’s liabilities to DealMaker
that have accrued before the effective date of the expiration or termination
will survive; (c) licenses and use rights granted to Portal User with respect
to the Site and Portal Services and intellectual property will immediately
terminate; (d) DealMaker’s obligation to provide any further services to Portal
User under these Terms will immediately terminate, except any such services
that are expressly to be provided following expiration or termination of these
Terms; and (e) the provisions of Section ___ (Usage and Access Rights [NO SUCH
SECTION]), Section __ (Ownership [NO SUCH SECTION]), Section 10 (Restrictions
on Use of the Site), Section ___ (Compliance with Terms [NO SUCH SECTION]),
Section 11 (Privacy), Section 19.2 (No Refunds), Section 19.7 (Tax
Responsibility), Section 19.8 (Free Trial and Special Offers for Portal
Services), Section 20 (Data), Section ___ (Confidentiality [NO SUCH SECTION]),
Section 20.12 (Effect of Termination), Section 12 (Warranties and Disclaimers),
Section 13 (Indemnification Obligations), Section 14 (Limitations of
Liability), and Section 14 (General [CONSIDER REMOVING OTHER SUB-SECTIONS OF 14
IF 14 IS SUPPOSED TO SURVIVE ANYWAY]) will survive, as well as provisions
designated to survive under any Service Schedules and accompanying attachments
and Exhibits to these Terms.
* * * *
Schedule A – Electronic Signature Feature
This Service Schedule was last
updated on January 1, 2018. Unless otherwise defined in this Schedule,
capitalized terms will have the meaning given to them in the Terms.
1.
Definitions
“Electronic Signature” means the
electronic signature Service, which provides online display, acknowledgement,
electronic signature, and storage services in respect of binding agreements via
the Internet.
“Site” refers to the
software Sites and programs, the communication and network facilities, and the
hardware and equipment used by DealMaker or
its agents to provide the Electronic Signature service.
“Transaction Data” means the
metadata associated with a transaction (such as transaction history, image hash
value, method and time of receipt and information input, recipient names, email
addresses and signature IDs) and maintained by DealMaker in order to establish the digital audit trail.
2.
Additional Usage Limitations and
your Responsibilities
2.1
DealMaker’s provision of the Electronic
Signature service is conditioned on User’s acknowledgement of and agreement to
the following:
(a)
Electronic Signature facilitates the
execution of documents between the parties to those documents. Nothing in
this Schedule may be construed to make DealMaker
a party to any document processed through Electronic Signature, and DealMaker makes no representation or warranty regarding the
transactions sought to be effected by any document signed via Electronic
Signature;
(b)
Between DealMaker and Enterprise Users, Enterprise User has exclusive
control over and responsibility for the content, quality, and format of any
document. Documents and transaction information stored by DealMaker on the Site are maintained in an encrypted form, and DealMaker has no control of or access to their contents;
(c)
Certain types of agreements and
documents may be excepted from electronic signature laws (e.g. wills, deeds,
transfers of land and agreements pertaining to family law), or may be subject
to specific regulations promulgated by various government agencies regarding
electronic signatures and electronic records. DealMaker is not responsible for determining whether any particular
document is (i) subject to an exception to applicable electronic signature
laws; (ii) subject to any particular agency promulgations; or (iii) whether it
can be legally formed by electronic signatures;
(d)
DealMaker is not responsible for
determining how long any contracts, documents, and other records are required
to be retained or stored under any applicable laws, regulations, or legal or
administrative agency processes. Further, DealMaker is not responsible for providing transaction documents or
other documents to third parties;
(e)
Certain consumer protection or similar
laws or regulations may impose special requirements with respect to electronic
transactions involving one or more “consumers,” such as (among others)
requirements that the consumer consent to the method of contracting and/or that
the consumer be provided with a copy, or access to a copy, of a paper or other
non-electronic, written record of the transaction. DealMaker does not and is not responsible to: (i) determine
whether any particular transaction involves a “consumer;” (ii) furnish or
obtain any such consents or determine if any such consents have been withdrawn;
(iii) provide any information or disclosures in connection with any attempt to
obtain any such consents; (iv) provide legal review of, or update or correct
any information or disclosures currently or previously given; (v) provide any
such copies or access, except as expressly provided in the Documentation for
all transactions, consumer or otherwise; or (vi) otherwise to comply with any
such special requirements.
3.
Information Security and
Personal Data
3.1
User Responsibilities. Electronic
Signature provides Users with certain features and functionalities that that
Users may elect to use, including the ability to retrieve and delete documents
in the Site. Enterprise Users are primarily responsible for
properly: (a) configuring transaction documents, including indicating and
configuring Electronic Signature; (b) using and enforcing controls available in
connection with Electronic Signature (including any security controls); and (c)
taking such steps, in accordance with the functionality of Electronic
Signature, that such Users deem adequate to maintain appropriate security,
protection, deletion, and backup of User Data, which include controlling the
management of authorized Users’ access and credentials to Electronic Signature,
controlling User Data that is processed by Electronic Signature, and
controlling the archiving or deletion of documents in the Site. All Users
acknowledge that we have no obligation to protect User Data that Users elect to
store or transfer outside of the Site (e.g., offline or on-premise storage).
3.2
Information Security. We employ
commercially reasonable technical and organizational measures that are designed
to prevent unlawful or unauthorized access, use, alteration, or disclosure of
User Data.
4.
Accounts & Organizational
Administration
4.1
Each Account is associated with a
single email address. If the domain of the primary email address
associated with an Account is owned by a business or other organization
(“Entity”) and was assigned to a User as an employee, contractor or member of
the Entity, such as yourname@youremployer.com or yourname@nonprofit.org
(“Entity Email Address”), User grants that Entity and its administrator(s)
permission to: (a) identify Accounts created with an Entity Email
Address; and (b) restrict or terminate access to an Account created with an
Entity Email Address. User acknowledges and agrees that we may assist
Entity with such administration.
* * * *
Schedule B – Messenger Feature
This Service Schedule was last
updated on January 1, 2018. Unless otherwise defined in this Schedule,
capitalized terms will have the meaning given to them in the Terms.
1.
Definitions
“Messages” means the online text
messages which Users may input, access, retain, share with, and receive from
other Users via the Messenger Feature.
“Messenger Feature” means the
service within the Site that facilitates the input, access, retention, and
sharing of Messages.
2.
Additional user Responsibilities for
use of Messenger Feature
2.1
DealMaker’s provision of the Messenger
Feature for use within the Site is conditioned on User’s acknowledgement of,
and agreement to, the following:
(a)
User is solely responsible for
registering and maintaining Account in order to facilitate the communication
functionality via Messenger Feature;
(b)
As between DealMaker and User, User is solely responsible for complying with
all laws applicable to the content, communications, and use of Messenger
Feature and User represents and warrants it will use and permit use of
Messenger Feature solely for lawful purposes and only in accordance with the
terms of the Terms;
(c)
User covenants not to use Messenger
Feature for any of the following purposes: The unsolicited sending of
spam/unsolicited commercial electronic messages, third party advertisements,
derogatory, racist, sexist, homophobic or other objectionable language,
slander, libel and threats; and
(d)
All other terms and condition of the
Terms apply to User’s use of Messenger Feature as part of the Services.
Last updated: November 2018
1.
Welcome to DealMaker, a website
and software system (the “Site”),
created and owned by DealMaker
Solutions Inc. o/a DealMaker (“we”, “us”, or “DealMaker”). Through this Site, we provide services and materials (“Services”) designed to assist: (i) Site visitors
including investors (“Site Visitors”);
(ii) individuals or entities who have purchased a license to use our services
and their authorized users (“Enterprise Users”); and (iii) individuals or entities who are invited to create an
account (“Account Users”) and their
authorized users and related entities who create a portal to manage and track
their stakeholder communications (“Portal Users”). Site Visitors, Enterprise Users, Account Users and Portal
Users are collectively referred to herein as “Users” (or, individually, “you”). All Users’ access and use of the Site,
along with any services or materials contained or referenced herein, are
governed by and subject to this Terms of Use Agreement (the “Terms”), as well as all applicable laws.
PLEASE READ CAREFULLY THE FOLLOWING TERMS OF SERVICE.
By logging in and using the Site, you represent that you (1) are over
the age of 18, (2) have the right and authority to legally bind yourself or
your company, firm and/or employer to these Terms, (3) have not been previously
suspended or removed from the Site by DealMaker,
and (4) are not a competitor of DealMaker or
acting on behalf of any such competitor.
IF YOU DO NOT AGREE TO ALL OF THESE TERMS OR CANNOT
TRUTHFULLY MAKE SUCH REPRESENTATIONS, SELECT THE “DECLINE” BUTTON AT THE END OF
THIS AGREEMENT AND DO NOT USE THE SITE OR SERVICE. By selecting “accept”,
you agree on your and your company’s, firm’s or employer’s behalf to be legally
bound by all these Terms, including any additional guidelines and future
modifications hereto.
TERMS APPLICABLE TO ALL USERS
2.
Updates and Communications
2.1
Updates. We may revise these Terms or any additional terms
and conditions that are relevant to a particular Service from time to time to
reflect changes in the law or to the Services. We will post the revised
terms on the Site with a “last updated” date. Those revised terms become
part of these Terms. It is your responsibility to review the Site on a
regular basis to obtain timely notice of any revisions. If you continue
to use the Services after the revisions take effect, you are thereby bound by
these Terms as revised. You agree that we shall not be liable to you or
to any third party by reason of modification of the Terms.
2.2
Communications. You agree to receive electronically all
communications, agreements and notices that we provide in connection with the
Services (“Communications”), including by e-mail, text, notifications by
Messenger Feature, or by posting them on the Site or through any
Services. You agree that all Communications that we provide to you
electronically satisfy any legal requirement that Communications be in
writing. You agree to keep your Site account (“Account”) contact
information current so that we can send you Communications.
3.
Additional Terms for Certain Services.
3.1
Electronic Signature. If you use the electronic signature
feature of the Services, you accept the additional terms applicable to the
Electronic Signature feature. (Schedule A).
3.2
Messenger Feature. If you use the Messenger Feature, you
accept the additional terms applicable to the Messenger Feature (Schedule B).
3.3
Escrow Services. If you use the escrow features and
services of DealMaker, you accept the terms of use for our <%= link_to 'Escrow
Services', funds_path %>.
4.
Users
4.1
Enterprise Users. If you are an Enterprise User and you
are, or your organization is, bound by a separate license agreement with
DealMaker (“Corporate Terms”), then these Terms will apply to use of the
Site or any Services only to the extent such use is not already governed by the
Corporate Terms. The Corporate Terms include restrictions and
requirements that outline the features that an Enterprise User will be able to
access. For the avoidance of doubt, all references to the “Site” in these
Terms also includes the Services. By using the Services as an Enterprise
User, you represent that you are a legally qualified professional or are acting
on the authority of and under the supervision of a legally qualified
professional. If you place any information on the site that is subject to
Attorney-Client privilege, you represent that you have the authority to do so
and understand the consequences thereof.
4.2
Account Users. To be an Account User, you must be invited
to register for an Account on the Site. You are solely responsible for
maintaining the confidentiality of your Account and password and for
restricting access to your computer, and you agree to accept responsibility for
all activities that occur under your Account or password. You agree that
the information you provide on registration and at all other times will be
true, accurate, current, and complete. You also agree that you will keep this
information accurate and up-to-date at all times. If you have reason to
believe that your Account is no longer secure (e.g., in the event of a loss,
theft or unauthorized disclosure or use of your Account identification,
password, or any credit, debit or charge card number, if applicable), then you
agree to immediately notify us. You may be liable for the losses incurred
by us or others due to any unauthorized use of your Account. If you are
an Account User, you agree not to impersonate any person or entity, falsely
claim an affiliation with any person or entity, or access the Accounts of
others without permission, forge another person’s digital signature,
misrepresent the source, identity, or content of information transmitted via
the Site, or perform any other similar fraudulent activity. You agree
that you shall be bound by these terms and the additional terms applicable to
Account Users. The additional terms for Account Users form part
of these Terms.
4.3
Portal Users. If you have, or your organization has,
registered for an Account to use the company services (such as managing
stakeholder communications and workflows), you are a “Portal User” and shall be
bound by any applicable subscription plan (“Subscription Plan”) that you
have, or your organization has, entered into, as well as these Terms and the
additional terms applicable to Portal Users. The additional terms for
Portal Users form part of these Terms.
4.4
Site Visitors. A Site Visitor is bound by these Terms and
can terminate its use of the Site at any time by ceasing further use of the
Site. We may terminate your use of the Site and deny you access to the
Site in our sole discretion for any reason or no reason, including for
violation of these Terms. A Site Visitor may not remove, circumvent,
disable, damage or otherwise interfere with security-related features of the
Site, features that prevent or restrict use or copying of any content
accessible through the Site, or features that enforce limitations on the use of
the Site.
4.5 Reverse
Engineering, etc. No User may reverse engineer, decompile, disassemble or
otherwise attempt to discover the source code of the Site or any part thereof,
except and only to the extent that such activity is expressly permitted by
applicable law notwithstanding this limitation.
5.
Limited License
Upon your acceptance of these Terms, we grant you a
limited, non-exclusive and non-transferable license to access and use the Site
only as expressly permitted in these Terms and any applicable Corporate Terms
or Subscription Agreement for the use of the Services. You shall not use
or permit use of the Site for any illegal purpose or in any manner inconsistent with the provisions of these
Terms. If you are or become a direct competitor to us, you may not access
or use the Services without our explicit, advance, written consent, and then
only for the purposes authorized in writing. Except as otherwise
restricted by these Terms, you may use, display, copy, and download content and
materials on the Site provided that you: (a) retain all copyright and
other proprietary notices on any content or materials uploaded or displayed by
you; and (b) use such materials in accordance with any applicable laws or
obligations you may have. Any violation by you of the license provisions
contained herein may result in the immediate termination of your right to use
the Site, as well as potential other claims depending on the circumstances.
6.
Intellectual Property.
6.1
General Rights. The Site contains materials that are
proprietary and are protected by copyright laws, international treaty
provisions, trademarks, service marks, and other intellectual property laws and
treaties. The Site is also protected as a collective work or compilation
under copyright and other laws and treaties. You agree to abide by all
applicable copyright and other laws, as well as any additional copyright
notices or restrictions contained on the Site. You acknowledge that the
Site contains original works that have been developed, compiled, prepared, revised,
selected, and arranged by us and others through the application of methods and
standards of skill and judgment developed and applied through the expenditure
of substantial time, effort, and money and constitutes valuable intellectual
property of DealMaker and such others. All present and future rights in
and to trade secrets, patents, designs, copyrights, trademarks, database
rights, service marks, know-how, and other intellectual property or other
proprietary rights of any type, the technical and functional documentation for
the Services (“Documentation”), any improvements, design contributions,
or derivative works thereof, and any knowledge or process related thereto,
including rights in and to all applications and registrations relating to the
Site, shall, as between you and DealMaker, at all times be and remain the sole
and exclusive property of DealMaker.
6.2
Trademarks. The trademarks, logos, taglines and service
marks displayed on the Site (collectively, the “Trademarks”) are
registered and unregistered Trademarks of DealMaker and others (including
Enterprise Users and Account Users in some cases). The Trademarks may not
be used in any advertising or publicity or otherwise to indicate DealMaker’s
sponsorship of or affiliation with any product, service, event or organization
without DealMaker’s prior express written permission. DealMaker
acknowledges the Trademarks of other organizations for their respective
products or services mentioned on the Site. Any rights not expressly
granted in these Terms are reserved by DealMaker, Inc. Other than as
provided in these Terms, your use of the Trademarks, or any other DealMaker
content, is strictly prohibited.
6.3
Software Use Restrictions. Unauthorized reproduction or
distribution of the software is expressly prohibited by law, and may result in
civil and criminal penalties. Violators may be prosecuted.
6.4
Document Content and Submissions/User Content.
(a)
Submissions. The Site or Services may enable you to submit,
post, upload, or otherwise make available (collectively, “Post”) content
such as questions, public messages, ideas, product feedback, comments and other
content (collectively, “User Content”) that may or may not be viewable
by other users. If you Post User Content, unless we indicate otherwise,
you grant us a nonexclusive, royalty-free, and fully sublicensable right to
access, view, use, reproduce, modify, adapt, publish, translate, create
derivative works from, distribute, copy, and display such User Content
throughout the world in any form, media, or technology now known or hereafter
developed. You also permit any other user to view, copy, access, store,
or reproduce your User Content for that user’s personal use. You grant us
the right to use your name and other information about you that you submit in
connection with your User Content. You represent and warrant that:
(a) you own or otherwise control all of the rights to the User Content that you
Post; (b) the User Content you Post is truthful and accurate; and (c) use of
the User Content you Post does not violate these Terms or any applicable
laws. For the avoidance of doubt, User Content does not include any
document, such as a contract, disclosure, notice that you deposit into the
Electronic Signature service for processing.
(b)
Screening & Removal. You acknowledge and agree that we
and our designees have the right, but not the obligation, at our discretion, to
pre-screen User Content before its appearance on the Site or Services.
You further acknowledge and agree that DealMaker reserves the right (but does not
assume the obligation) in its sole discretion to reject, move, edit or remove
any of your User Content. Without limiting the foregoing, DealMaker and
its designees shall have the right to remove any User Content that violates
these Terms or is otherwise objectionable in DealMaker’s sole discretion.
You acknowledge and agree that DealMaker does not verify, adopt, ratify, or
sanction User Content, and you agree that you must evaluate and bear all risks
associated with your User Content or your reliance on the accuracy,
completeness, or usefulness of the User Content of third parties that is posted
on the Site.
7.
Trial Period and Subscriptions.
7.1
Terms Continue to Apply. These Terms, as modified, govern
your use of the Site. If you choose to subscribe to the Services, then
after any trial period ends, the Terms shall continue in effect and you will be
required to pay the applicable subscription fee for the Services, and otherwise
comply with the Terms and any other agreement between you and DealMaker.
8.
Agreement Templates and Example Forms.
8.1
DealMaker Does Not Constitute Legal or Financial Advice.
The Site may provide examples of agreements, documents and other general legal
information provided by us or third parties; however, any general legal
information or sample templates provided as part of the Services are for
example purposes only and may not be suitable to your circumstances. If
you are not a lawyer, you should consult a lawyer regarding how any legal
document may affect or impair your legal rights. The information,
forms, and other resources available on or through the Site or as part of the
Services are provided for example purposes only and in no way should be
considered to be a substitute for the advice of a lawyer.
8.2
DealMaker Does Not Constitute Legal or Financial Advice.
DealMaker IS NOT A LAW FIRM AND DOES NOT ENGAGE IN THE PRACTICE OF LAW.
NOTHING ON THE SITE SHOULD BE CONSTRUED AS AN ATTEMPT TO OFFER OR RENDER LEGAL
SERVICES AND OUR EMPLOYEES ARE NOT ACTING AS YOUR COUNSEL.
8.3
DealMaker Does Not Constitute Legal or Financial Advice. No
part of the Services should be applied to any specific or general factual
situation. Use of the Site or the Services does not create or constitute
an attorney-client relationship.
8.4
WITHOUT WARRANTY. ALL SAMPLE TEMPLATES AND RELATED
MATERIALS, IF ANY, MADE AVAILABLE AS PART OF THE SERVICES ARE PROVIDED “AS IS,”
WITHOUT ANY EXPRESS OR IMPLIED WARRANTY OF ANY KIND, INCLUDING WARRANTIES OF
MERCHANTABILITY, MERCHANTABLE QUALITY, LEGAL EFFECT, ACCURACY, APPROPRIATENESS,
COMPLETENESS, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE.
8.5
DealMaker Does Not Constitute Legal or Financial Advice.
All information, forms, and other resources available on or through the Site
should be modified to meet all the applicable laws and regulations in your
city, state, and county, as applicable. You understand that you are using
any and all information, forms, and other resources available as part of the
Services or on or through the Site at your own risk.
9.
Pricing
9.1
The prices, features, and options of the Services depend on the
type of license you have entered into. For example, if you are an
Enterprise User, pricing is based on tiers of use described in the Corporate
Terms. Portal Users may purchase optional services on a periodic or
per-use basis pursuant to a Subscription Plan. We may change the prices
for or alter the features and options without notice, and if you use such
features or options after the price revisions take effect, you shall be bound
by the revised pricing.
10.
Restrictions on the Use of the Site
10.1
Restrictions on Use. By using the Site, including any
Service, you specifically agree not to engage in any activity or transmit any
information that, in our sole discretion:
(a)
Is illegal, or violates any federal, provincial, state, or local
law, by-law or regulation;
(b)
Advocates illegal activity or discusses illegal activities with
the intent to commit them;
(c)
Violates any third-party right, including, but not limited to,
right of privacy, right of publicity, copyright, trademark, patent, trade
secret, or any other intellectual property or proprietary rights;
(d)
Is harmful, threatening, abusive, harassing, tortious, indecent,
defamatory, sexually explicit or pornographic, discriminatory, vulgar, profane,
obscene, libelous, hate speech, violent or inciting violence, inflammatory, or
otherwise objectionable;
(e)
Interferes with any other party’s use and enjoyment of the Services;
(f)
Constitutes an attempt to impersonate another person or entity;
(g)
Is commercial in a way that violates these Terms, including but
not limited to, using the Site for spam, surveys, contests, pyramid schemes, or
other advertising materials;
(h)
Falsely states, misrepresents, or conceals your affiliation with
another person or entity;
(i)
Accesses or uses the Account of another user without permission;
(j)
Distributes computer viruses or other code, files, or programs
that interrupt, destroy, or limit the functionality of any computer software or
hardware or electronic communications equipment;
(k)
Interferes with, disrupts, disables, overburdens, or destroys the
functionality or use of any features of the Site, or the servers or networks
connected to the Site, or any of the Services;
(l)
“Hacks” or accesses without permission our proprietary or
confidential records, those of another user, or those of anyone else;
(m)
Improperly solicits personal or sensitive information from other
users including without limitation address, credit card or financial account
information, or passwords;
(n)
Decompiles, reverse engineers, disassembles or otherwise attempts
to derive source code from the Site, except as expressly permitted in these
Terms or by applicable law, unless and then only to the extent permitted by
applicable law without consent;
(o)
Removes, circumvents, disables, damages or otherwise interferes
with security-related features, or features that enforce limitations on use of,
the Site;
(p)
Uses automated or manual means to violate the restrictions in any
robot exclusion headers on the Site, if any, or bypasses or circumvents other
measures employed to prevent or limit access, for example by engaging in
practices such as “screen scraping,” “database scraping,” or any other activity
with the purpose of obtaining lists of users or other information;
(q)
Modifies, copies, scrapes or crawls, displays, distributes,
publishes, licenses, sells, rents, leases, lends, transfers or otherwise
commercializes any materials or content on the Site;
(r)
Uses the Services for benchmarking, or to compile information for
a product or service;
(s)
Downloads (other than through page caching necessary for personal
use, or as otherwise expressly permitted by these Terms), distributes, posts,
transmits, performs, reproduces, broadcasts, duplicates, uploads, licenses,
creates derivative works from, or offers for sale any content or other
information contained on or obtained from or through the Site or Services, by
any means except as provided for in these Terms or with the prior written
consent of DealMaker; or
(t)
Attempts to do any of the foregoing.
If you believe content on the Site violates the above
restrictions, please contact us immediately at info@dealmaker.tech.
10.2
Restrictions on Use. In addition, Users shall not, and
shall not permit others to, do the following with respect to the Services:
(a)
Use the Services, or allow others to use them, in a manner that
circumvents contractual usage restrictions or that exceeds authorized use set
forth in these Terms;
(b)
License, sub-license, sell, re-sell, rent, lease, transfer,
distribute or time share or otherwise make any portion of the Services or
Documentation available for access by third parties except as otherwise
expressly provided in these Terms; or
(c)
Access or use the Services or Documentation for the purpose of
developing or operating products or services intended to be offered to third
parties in competition with the Services or allow access by a direct competitor
of DealMaker.
10.3
Restrictions on Use. You may not frame the Site, place pop-up
windows over its pages, or otherwise affect the display of its pages. You
may link to the Site, provided that you acknowledge and agree that you will not
link the Site to any website containing any inappropriate, profane, defamatory,
infringing, obscene, indecent, or unlawful topic, name, material, or
information or that violates any intellectual property, proprietary, privacy,
or publicity rights. Any violation of this provision may, in our sole
discretion, result in termination of your use of and access to the Site
effective immediately.
10.4
Monitoring. You acknowledge that we have no obligation to
monitor your – or anyone else’s – access to or use of the Site for violations
of these Terms, or to review or edit any content. However, we have the
right to do so for the purpose of operating and improving the Site (including
without limitation for fraud prevention, risk assessment, investigation and
customer support purposes, analytics, and advertising), to ensure your
compliance with these Terms and to comply with applicable law or the order or
requirement of a court, consent decree, administrative agency or other
governmental body.
11.
Privacy
11.1
DealMaker Privacy Policy. You acknowledge that except as
described in these Terms or applicable Corporate Terms, the information you
provide to us or that we collect will be used and protected as described in the
DealMaker <%= link_to('Privacy Policy', privacy_path) %>.
Please read the Privacy Policy carefully.
11.2
Access & Disclosure. We may access, preserve, or share
any of your information when we believe in good faith that such sharing is
reasonably necessary to investigate, prevent, or take action regarding possible
illegal activities or to comply with legal process (e.g. a subpoena or other
legal process). We may also share your information in situations
involving potential threats to the physical safety of any person, violations of
the DealMaker Privacy Policy or our user agreements or terms; or to respond to
the claims of violation of the rights of third parties and/or to protect the
rights, property and safety of DealMaker, our employees, users, or the
public. This may involve the sharing of your information with law
enforcement, government agencies, courts, and/or other organizations.
12.
Warranties and Disclaimers
12.1
No Warranties. The Services, Documentation, and Site are
provided “as is” and “as available.” Your use of the Services,
Documentation, and Site shall be at your sole risk. THE SERVICES,
DOCUMENTATION AND THE SITE ARE PROVIDED “AS IS,” WITHOUT ANY EXPRESS OR IMPLIED
WARRANTY OF ANY KIND, INCLUDING WARRANTIES OF MERCHANTABILITY, MERCHANTABLE
QUALITY, LEGAL EFFECT, ACCURACY, APPROPRIATENESS, COMPLETENESS,
NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. DealMaker DOES NOT
WARRANT THAT THE SERVICES, DOCUMENTATION, OR SITE ARE OR WILL BE ERROR-FREE,
WILL MEET YOUR REQUIREMENTS, OR BE TIMELY OR SECURE. You will be solely
responsible for any damage resulting from the use of the Services,
Documentation, or Site.
12.2
No Warranties. DealMaker makes no warranties or
representations that Services, Documentation, and Site have been and will be
provided with due skill, care and diligence or about the accuracy or
completeness of the Services, Documentation, and Site content and assumes no
responsibility for any: (i) errors, mistakes, or inaccuracies of content;
(ii) personal injury or property damage, of any nature whatsoever, resulting
from your access to and use of Services, Documentation, and Site; (iii) any
unauthorized access to or use of our servers and/or any and all personal
information and/or financial information stored therein; (iv) any interruption
or cessation of transmission to or from the Site; (v) any bugs, viruses, Trojan
horses, or the like that may be transmitted to or through the Site through the
actions of any third party; (vi) any loss of your data or content from the
Site; and/or (vii) any errors or omissions in any content or for any loss or
damage of any kind incurred as a result of the use of any content posted,
emailed, transmitted, or otherwise made available via the Services,
Documentation, and Site. You will not have the right to make or pass on
any representation or warranty on behalf of DealMaker to any third party.
Because some jurisdictions do not allow limitations on implied warranties, the
above limitation may not apply to you. In that event, such warranties are
limited to the maximum extent permitted by, and for the minimum warranty
period allowed by the mandatory applicable law.
12.3
No Endorsement. DealMaker does not warrant, endorse,
guarantee, or assume responsibility for any product or service advertised or
offered by a third party through the Site, and DealMaker will not be a party to
or in any way be responsible for monitoring any transaction between you and
third-party providers of products or services. You are solely responsible
for all of your communications and interactions with other persons with whom
you communicate or interact as a result of your use of the Site.
12.4
Application of Local Law. If you are a California resident,
you hereby waive California Civil Code §1542, which says: “A general
release does not extend to claims which the creditor does not know or suspect
to exist in his favor at the time of executing the release, which if known by
him must have materially affected his settlement with the debtor.” This release
includes the criminal acts of others. Some jurisdictions do not allow the
exclusion of certain warranties or the limitation or exclusion of liability for
incidental or consequential damages such as in this Section 11 or below in
Section 13. Accordingly, some of these limitations may not apply to you.
13.
INDEMNIFICATION OBLIGATIONS
13.1
Indemnity. You will defend, indemnify, and hold us, our
affiliates, officers, directors, employees, suppliers, consultants, and agents
harmless from any and all third party claims, liability, damages, and costs
(including, but not limited to, legal fees) arising from or related to, as
applicable: (a) your access to and use of the Site; (b) violation of
these Terms by you as applicable; (c) infringement of any intellectual property
or other right of any person or entity by you; (d) the nature and content of
all User Data uploaded or provided by you; (e) your use of or reliance upon any
User Content uploaded by any third party; or (f) any products or services
purchased or obtained by you in connection with the Site.
13.2
Rights. DealMaker retains the exclusive right to settle,
compromise and pay, without your prior consent, any and all claims or causes of
action which are brought against us. We reserve 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 in which we are named as
a defendant and/or for which you have indemnity obligations without our prior
written consent. We will use reasonable efforts to notify you of any such
claim, action or proceeding upon becoming aware of it.
14.
Limitations of Liability
14.1
Disclaimer of Consequential Damages. Notwithstanding
anything to the contrary contained in these terms, DealMaker will not, under
any circumstances, be liable to you for any consequential, incidental, special,
cover, punitive or exemplary damages arising out of or related to the
transactions contemplated under these terms, including, but not limited to,
goodwill, work stoppage, lost profits or loss of business, even if apprised of
the likelihood of such losses, and whether such claims are made based on
contract, tort (including negligence), or any other legal theory.
14.2
Limitations. To the fullest extent permitted by applicable
law, in no event shall DealMaker be liable to you for any direct, indirect,
incidental, special, punitive, or consequential damages whatsoever resulting
from any: (a) use of the Site, Documentation, or Services; (b) errors,
mistakes, or inaccuracies of content; (c) personal injury or property damage,
of any nature whatsoever, resulting from your access to and use of the Site,
Documentation, or Services; (d) any unauthorized access to or use of our
servers and/or any and all personal information and/or financial information
stored therein; (e) any interruption or cessation of transmission to or from
our servers; (f) any bugs, viruses, Trojan horses, or the like, which may be
transmitted to or through the Site, Documentation, or Services by any third
party; (g) any loss of your data or content from the Site, Documentation, or
Services; (h) any errors or omissions in any content or for any loss or damage
of any kind incurred as a result of your use of any content posted,
transmitted, or otherwise made available via the Site, Documentation, or
Services, whether based on warranty, contract, tort (including negligence), or
any other legal theory, and whether or not DealMaker is advised of the
possibility of such damages; and/or (i) the disclosure of information pursuant
to these terms or our Privacy Policy.
14.3
Local Law. Some countries and jurisdictions do not allow
the limitation or exclusion of consequential, direct, indirect, or other
damages in contracts with consumers and to the extent you are a consumer the
limitations or exclusions in this Section 13.1 may not apply to you.
14.4
Cap on Damages. Our total liability to you for any cause of
action arising out of or related to these terms or to your use of the Site
(including without limitation warranty claims), regardless of the forum and
regardless of whether any action or claim is based on contract, tort (including
negligence), or any other legal or equitable theory, will not exceed the total
amount paid by you to DealMaker for the Service(s) during the twelve (12) month
period preceding the date of the first event giving rise to liability, or $100,
whichever is greater. The existence of more than one claim shall not
enlarge this limit.
14.5
Independent Allocations of Risk. Each provision of these
Terms that provides for a limitation of liability, disclaimer of warranties, or
exclusion of damages represents an agreed allocation of the risks of these
Terms between the parties. But for this allocation of risk, DealMaker
would not be willing to provide the Services at the prices for which they are
provided. This allocation is an essential element of the basis of the
bargain between the parties. Each of these provisions is severable and
independent of all other provisions of these Terms, and each of these
provisions will apply even if the warranties in these Terms have failed of
their essential purpose.
14.6
Jurisdictional Limitations.
14.6.1 Because some
jurisdictions do not allow limitation of liability in certain instances,
portions of the above limitation may not apply to you. In that event,
such exclusions and limitations shall apply to the maximum extent permitted by
applicable mandatory law (and our liability shall be limited or excluded as
permitted under mandatory applicable law).
15.
General
15.1
Third Party Content. We may provide, or third parties may
provide, links to other third-party web sites, services, or resources that are
beyond our control. We make no representations as to the quality,
suitability, functionality, or legality of any third-party content to which
links may be provided, and you hereby waive any claim you might have against us
with respect to such services. DealMaker IS NOT RESPONSIBLE FOR ANY USER
CONTENT OR FOR THE CONTENT ON THE INTERNET OR WEB PAGES THAT ARE LOCATED OUTSIDE
THE SITE OR POSTS OF USER CONTENT. Your correspondence or business
dealings with, or participation in promotions of, advertisers or partners found
on or through the Site, including payment and delivery of related goods or
services, and any other terms, conditions, warranties, or representations
associated with such dealings, are solely between you and such advertiser or
partner. You agree that we are not responsible or liable for any loss or
damage of any sort incurred as the result of any such dealings or as the result
of the presence of such advertisers or links to third-party web sites or
resources on the Site.
15.2
Relationship. At all times, you and DealMaker are
independent contractors, and are not the agents or representatives of the
other. These Terms are not intended to create a joint venture,
partnership, or franchise relationship between the parties. Non-parties
do not benefit from and cannot enforce these Terms. There are no
third-party beneficiaries to these Terms. You must not represent to
anyone that you are an agent of DealMaker or is otherwise authorized to bind or
commit DealMaker in any way without DealMaker’s prior written authorization.
15.3
Assignability. You may not assign your rights or
obligations under these Terms without DealMaker’s prior written consent.
If consent is given, these Terms will bind your successors and assigns.
Any attempt by you to transfer your rights, duties, or obligations under these
Terms except as expressly provided in these Terms is void. DealMaker may
freely assign its rights, duties, and obligations under these Terms.
15.4
Notices. Except as otherwise permitted by these Terms, any
notice required or permitted to be given in connection with the Services will
be effective only if it is in writing and sent using: (a) the Services;
(b) by certified or registered mail; or (c) insured courier, to the appropriate
party at the address set forth in your registration information or on the Site.
15.5
Force Majeure. Except for any payment obligations, neither
you nor DealMaker will be liable for failure to perform any obligation under
these Terms to the extent such failure is caused by a force majeure event
(including acts of God, natural disasters, war, civil disturbance, action by
governmental entity, strike and other causes beyond the party’s reasonable
control). The party affected by the force majeure event will provide
notice to the other party within a commercially reasonable time and will use
commercially reasonable efforts to resume performance as soon as practicable. Obligations
not performed due to a force majeure event will be performed as soon as
reasonably possible when the force majeure event concludes.
15.6
Initial Dispute Resolution. Most disputes can be resolved
without resort to arbitration. If you have any dispute with us, you agree
that before taking any formal action, you will contact us
at info@dealmaker.tech, and provide a brief, written description of the
dispute and your contact information (including your username, if your dispute
relates to an Account). Except for intellectual property, you and
DealMaker agree to use reasonable efforts to settle any dispute, claim,
question, or disagreement directly through consultation, and good faith
negotiations shall be a condition to either party initiating a lawsuit or
arbitration.
15.7
Binding Arbitration. If the parties do not reach an
agreed-upon solution within a period of thirty (30) days from the time informal
dispute resolution is initiated under the Initial Dispute Resolution provision
in Section 14.6 above, then either party may initiate binding arbitration as
the sole means to resolve claims, (except as provided below) subject to these
Terms set forth below. Specifically, all claims arising out of or
relating to these Terms, the parties’ relationship with each other, and/or your
use of the Services, Documentation or Site shall be finally settled by binding
arbitration administered by JAMS in accordance with the JAMS Streamlined
Arbitration Procedure Rules for claims that do not exceed $250,000 and the JAMS
Comprehensive Arbitration Rules and Procedures for claims exceeding $250,000 in
effect at the time the arbitration is initiated, excluding any rules or
procedures governing or permitting class actions.
15.8
Class Action Waiver. The parties further agree that the arbitration
shall be conducted in the party’s respective individual capacities only and not
as a class action or other representative action, and the parties expressly
waive their right to file a class action or seek relief on a class basis.
YOU AND DealMaker AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN
YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY
PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator
determines that the class action waiver set forth in this paragraph is void or
unenforceable for any reason or that an arbitration can proceed on a class
basis, then the arbitration provisions set forth above shall be deemed null and
void in their entirety and the parties shall be deemed to have not agreed to
arbitrate disputes.
15.9
Survival. This Mandatory Arbitration, Waiver of Class
Actions section shall survive any termination of your use of the Site.
15.10
Entire Terms. These Terms, which include the language and
paragraphs preceding Section 1, are the final, complete, and exclusive
expression of the agreement between you and DealMaker regarding the Services
provided under these Terms. These Terms supersede and the parties
disclaim any reliance on previous oral and written communications (including any
confidentiality agreements pertaining to the Services under these Terms) with
respect to the subject matter hereof and apply to the exclusion of any other
terms that you seek to impose or incorporate, or which are implied by trade,
custom, practice or course of dealing. DealMaker hereby rejects any
additional or conflicting terms appearing in a purchase order or any other
ordering materials submitted by you and conditions assent solely based on these
Terms and conditions of these Terms as offered by DealMaker. Except as
explicitly permitted in these Terms, no modification or amendment of these
Terms shall be effective unless it is in writing and signed by an authorized
agent of the party against whom the modification or amendment is being asserted.
In the event of an inconsistency or conflict, the order of precedence in
descending order of control is as follows: (a) the Subscription Plan; (b)
any attachments or appendix(ices) to the Service Schedule(s); (c) the Service
Schedule; and (d) these Terms.
15.11 Governing
Law & Venue. These Terms will be interpreted, construed, and enforced
in all respects in accordance with the local laws of the Province of Ontario,
Canada, without reference to any conflict of law rules to the contrary.
15.12
Waiver. The waiver by either you or DealMaker of any breach
of any provision of these Terms does not waive any other breach. The
failure of any party to these Terms to insist on strict performance of any
covenant or obligation in accordance with these Terms will not be a waiver of
such party’s right to demand strict compliance in the future, nor will the same
be construed as a DealMaker of these Terms.
15.13 Severability.
If any part of these Terms is found to be illegal, unenforceable, or invalid,
the remaining portions of these Terms will remain in full force and
effect. If any material limitation or restriction on the grant of any
license to you under these Terms is found to be illegal, unenforceable, or
invalid, the license will immediately terminate.
15.14
Modification of this Agreement. DealMaker reserves the
right, at our discretion, to change, modify, add, or remove portions of the
Terms (including DealMaker’s Privacy Policy) at any time. Please check
these Terms and our Privacy Policy periodically for changes. Your
continued use of the Site after the posting of changes constitutes your binding
acceptance of such changes. For any material changes to these Terms, such
amended terms will automatically be effective ten (10) days after they are
initially posted on the Site.
15.15 Claims.
YOU AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SITE MUST
COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES.
OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
* * *
ADDITIONAL TERMS APPLICABLE TO “ACCOUNT
USERS”
16.
Restrictions on Use
16.1
Restrictions on Use. Your use of the Site is subject to all
applicable local, provincial, state and federal laws and regulations. You
may not use, allow, or enable others to use the Site, or knowingly condone use
of the Site by others, in any manner that is, attempts to, or is likely to:
_
be obscene, fraudulent, defamatory,
libelous, indecent, discourteous, racially or ethnically offensive, harassing,
threatening, abusive, pornographic or discriminatory;
_
affect us adversely or reflect negatively
on us, the Site, our goodwill, name or reputation or cause duress, distress, or
discomfort to us or anyone else, or discourage any person, firm, or enterprise
from using all or any portion, features, or functions of the Site, or from
advertising, linking, or becoming a supplier to us in connection with the Site;
_
send or result in the transmission of
junk e-mail, chain letters, duplicative or unsolicited messages, or so-called
“spamming” and “phishing”;
_
transmit, distribute, or upload content
or programs that contain any viruses, Trojan horses, worms or other disabling
devices or harmful components intended to damage, detrimentally interfere with,
surreptitiously intercept, or expropriate any Site, data or personal
information;
_
modify, disrupt, impair, alter, or
interfere with the use, features, functions, operation, or maintenance of the
Site or the rights or use and enjoyment of the Site by any other user;
_
advocate or encourage any illegal
activity;
_
infringe upon or misappropriate the
copyright, patent, trademark, trade secret, publicity rights or other
intellectual property or proprietary rights of ours or any third party;
_
violate the privacy of any individual,
including users of the Site; or
_
violate any applicable local,
provincial, state or national laws or regulations (anywhere in the world).
17.
Privacy and Personal Information
17.1
Use of Email. We may use your email address to verify your
identity, protect against fraud, and contact you. In addition, we may use
it to send you updates about your Account, new products and services, and
Services updates.
17.2
Personal Information. Personal information submitted by
Users to the Site may be employed for the purposes of maintaining the integrity
of the Site and its contents, contacting our Users when necessary, and
improving the quality of Services. We may also collect information
specific to how you use the Internet. Services we use note details such
as the server you are logged onto and your IP address. This information
is obtained for the purpose of providing certain of our Services (such as the
audit trail for our electronic signature feature). We may ask you for
more personal information from time to time in a survey format. This
information is specifically used to ensure that the Services are up-to-date and
relevant, and that the products and services provided to you in advertising
format are relevant and of interest to you. Any information used as
demographics will not reveal the source, and will be kept secure. This
further information provided by you is on an optional basis.
17.3
Disclosure by Law. We reserve the right to disclose your
personally identifiable information as required by law and when we believe that
disclosure is necessary to protect our rights and/or comply with a judicial
proceeding, court order, or legal process served on our Site(s); or to protect
our company. While we make every effort to ensure the integrity and
security of our network and Sites, we cannot guarantee that our security measures
will prevent third-party “hackers” from illegally obtaining this information.
17.4
Further Information. For more information about our
treatment and protection of personal information, please read our
<%= link_to('Privacy Policy', privacy_path) %>. This
policy explains how we treats your personal information, and protects your
privacy, when you use the Site. Questions or requests with respect to
your personal information may be sent via email to info@dealmaker.tech.
ADDITIONAL TERMS SPECIFIC TO “PORTAL
USERS”
18.
Right to Use Services
18.1
Right to Use Services. Subject to these Terms, DealMaker
will provide the Portal Services to Portal Users in accordance with each Portal
User’s Subscription Plan, and DealMaker grants to each Portal User a limited
non-exclusive, non-transferrable right and license during the Term, solely in
accordance with these Terms to: (a) use the Portal Services; (b)
implement, configure and permit authorized Users to access and use the Portal
Services up to any applicable limits or maximums; and (c) access and use the
Documentation.
19.
Payment Terms
19.1
Subscription Plan. The prices, features, and options of the
Portal Services depend on the Subscription Plan selected as well as any changes
instigated by Portal User. DealMaker does not represent or warrant that a
particular Subscription Plan will be offered indefinitely and reserves the
right to change the prices for or alter the features and options in a
particular Subscription Plan without prior notice.
19.2
No Refunds. Portal User will timely pay DealMaker all fees
associated with its Subscription Plan, Account or use of the Portal Services,
including, but without limitation, by authorized Users. PORTAL USER’S
PAYMENTS ARE NON-REFUNDABLE EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS.
Charges for pre-paid Subscription Plans will be billed to Portal User in
advance. Charges for per-use purchases and standard Subscription Plan
charges will be billed in arrears unless otherwise specified in the
Subscription Plan.
19.3
Recurring Charges. When a Portal User purchases a
Subscription Plan, the Portal User must provide accurate and complete
information for a valid payment method, such as a credit card, that Portal User
is authorized to use. Portal User must promptly notify DealMaker of any
change in its invoicing address and must update its Account with any changes
related to its payment method. BY COMPLETING REGISTRATION FOR A
SUBSCRIPTION PLAN, PORTAL USER AUTHORIZES DealMaker OR ITS AGENT TO CHARGE ITS
PAYMENT METHOD ON A RECURRING (E.G., MONTHLY OR YEARLY) BASIS FOR: (a)
THE APPLICABLE SUBSCRIPTION PLAN CHARGES; (b) ANY AND ALL APPLICABLE TAXES; AND
(c) ANY OTHER CHARGES INCURRED IN CONNECTION WITH PORTAL USER’S USE OF THE
PORTAL SERVICES. The authorization continues through the applicable
Subscription Term and any Renewal Term (as defined in Section 16.11, below)
until Portal User cancels as set forth in Section of these Terms.
19.4
Late Fees & Collection Costs. If DealMaker does not
timely receive payment, Portal User shall pay all amounts due upon
demand. Any amount not paid when due will be subject to finance charges
equal to 1.5% of the unpaid balance per month (18% per year) or the highest
rate permitted by applicable law, whichever is less, determined and compounded
daily from the date due until the date paid. Portal User will reimburse
any costs or expenses (including, but not limited to, reasonable legal fees)
incurred by DealMaker to collect any amount that is not paid when due.
DealMaker may accept payment in any amount without prejudice to DealMaker’s right
to recover the balance of the amount due or to pursue any other right or
remedy. Amounts due to DealMaker may not be withheld or offset by Portal
User for any reason against amounts due or asserted to be due from DealMaker.
19.5
Invoices. DealMaker will provide billing and usage
information in a format we choose, which may change from time to time.
DealMaker reserves the right to correct any errors or mistakes that it
identifies even if it has already issued an invoice or received payment in respect
of the period invoiced. Portal User agrees to notify DealMaker about any
billing problems or discrepancies within thirty (30) days after they first
appear on an invoice. If DealMaker does not bring such
problems/discrepancies to DealMaker’s attention within thirty (30) days, Portal
User will be conclusively deemed to have waived any right to dispute such
problems or discrepancies.
19.6
Billing Cycles. Billing cycle end dates may change from
time to time. When a billing cycle covers less than or more than a full
month, DealMaker may make reasonable adjustments and/or prorations.
Portal User agrees that we may (at our option) accumulate charges incurred
during a billing cycle and submit them as one or more aggregate charges during
or at the end of a cycle, and that we may delay obtaining authorization or
payment from Portal User’s payment card issuer until submission of the
accumulated charge(s).
19.7
Tax Responsibility. All payments required by these Terms
are exclusive of all taxes, duties, levies or similar payment imposed, fines or
similar governmental assessments, including sales and use taxes, value-added
taxes, goods and services taxes, excise, business, service, and similar
transactional taxes imposed by any jurisdiction and the interest and penalties
thereon, (collectively, “Taxes”). Portal User shall be responsible
for Taxes associated with its purchase of, payment for, access to or use of the
Portal Services. Taxes shall not be deducted from the payments to
DealMaker, except as required by law, in which case Portal User shall increase
the amount payable as necessary so that after making all required deductions
and withholdings, DealMaker receives and retains (free from any Tax liability)
an amount equal to the amount it would have received had no such deductions or
withholdings been made. Portal User hereby confirms that DealMaker can
rely on the name and address set forth in its registration for a Subscription
Plan as being the place of supply for sales tax purposes. Portal User’s
obligations under this Section (Tax Responsibility) shall survive the
termination or expiration of these Terms.
19.8
Free Trial and Special Offers for Portal Services. If any
person registers for a free trial, promotional offer or other type of limited
offer for use of Portal Services (“Free Trial”), there may be additional
terms and conditions when registering for a Free Trial, and any such additional
terms and conditions are hereby incorporated into these Terms by reference and
are legally binding. This Section 14.15 (Free Trial and Special Offers
for Portal Services) supersedes and apply notwithstanding any conflicting
provisions with regard to access and use of a Free Trial. DealMaker
reserves the right to reduce the term of a trial period or end it altogether
without prior notice.
19.9
Terms of Free Trial. The version of the Portal Services
that is available for a Free Trial may not include or allow access to all
features or functions. ANY DATA THAT A PORTAL USER ENTERS INTO THE PORTAL
SERVICES, AND ANY CONFIGURATIONS MADE BY OR FOR A PORTAL USER, DURING THE FREE
TRIAL MAY BE PERMANENTLY LOST AT THE END OF THE TRIAL PERIOD UNLESS THE PORTAL
USER: (a) PURCHASES A SUBSCRIPTION PLAN THAT IS EQUIVALENT TO OR GREATER
THAN THOSE COVERED BY THE TRIAL; OR (b) EXPORTS SUCH DATA BEFORE THE END OF THE
TRIAL PERIOD.
19.10
Terms of Free Trial. Notwithstanding any other provision of
these Terms, including without limitation the warranties described in Section
11 (Warranties and Disclaimers) or any service-specific terms and conditions
applicable to a particular Portal Service, including exhibits and attachments
accompanying such schedule (“Service Schedule”), DURING A FREE TRIAL,
THE SERVICES, DOCUMENTATION AND THE SITE ARE PROVIDED “AS IS,” WITHOUT ANY
EXPRESS OR IMPLIED WARRANTY OF ANY KIND, INCLUDING WARRANTIES OF
MERCHANTABILITY, MERCHANTABLE QUALITY, LEGAL EFFECT, ACCURACY, APPROPRIATENESS,
COMPLETENESS, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE.
DealMaker DOES NOT WARRANT THAT THE SERVICES, DOCUMENTATION, OR SITE, DURING A
FREE TRIAL, ARE OR WILL BE ERROR-FREE, WILL MEET YOUR REQUIREMENTS, OR BE
TIMELY OR SECURE.
20.
Data
20.1
Data Generally. Portal Users shall be responsible for data
that provided or used in the Portal Services. Portal Users are solely
responsible for determining the suitability of the Portal Services for their
business or organization and complying with any regulations, laws, or
conventions applicable to the data provided, and use of the Portal Services and
the Site.
20.2
Personal Data. Portal User warrants that its collection and
use of any personal information or data provided while using the Site complies
with all applicable data protection laws, rules, and regulations. Portal
User acknowledges that DealMaker may process such personal data as Portal
User’s agent in accordance with the DealMaker Privacy Policy [@Henry to
insert link].
20.3
Transaction Records Storage And Deletion
(a)
Sending, Storage. During the Term, DealMaker will store
User’s documents per these Terms or any applicable License Agreement.
However, DealMaker may set and enforce limits for reasonable use in order to
prevent abusive or unduly burdensome use of Electronic Signature. You may
retrieve and store copies of transaction documents for storage outside of the
Site at any time during the Term when you are in good financial standing under
these Terms, and may delete or purge documents from the Site at its own
discretion.
(b)
Incomplete transactions. DealMaker may, at its sole
discretion, delete from the Site transactions that have not been completed
without notice upon the expiration of the Term. DealMaker assumes no
liability or responsibility for a party’s failure or inability to
electronically sign any documents within such a period of time.
20.4
Deletion. DealMaker may delete an Account and User Data,
including without limitation transaction documents (whether complete or not),
upon the expiration of the Term or termination as described in the Terms.
20.5
Retention of Transaction Data. DealMaker may retain
Transaction Data for as long as it has a business purpose to do so.
20.6
Portal User Warranties. Portal User hereby represents and
warrants to DealMaker that: (a) it has all requisite rights and authority
to use the Portal Services under these Terms and to grant all applicable rights
herein; (b) it is responsible for all use of the Portal Services associated
with its Account; (c) it is solely responsible for maintaining the
confidentiality of its Account names and password(s); (d) it agrees to
immediately notify DealMaker of any unauthorized use of Portal User’s Account
of which it becomes aware; (e) it agrees that DealMaker will not be liable for
any losses incurred as a result of a third party’s use of its Account,
regardless of whether such use is with or without its knowledge and consent;
(f) it will use the Portal Services for lawful purposes only and subject to
these Terms; (g) any information it submits to DealMaker is true, accurate, and
correct; and (h) it will not attempt to gain unauthorized access to the Site or
the DealMaker Services, other Accounts, computer Sites, or networks under the
control or responsibility of DealMaker through hacking, cracking, password
mining, or any other unauthorized means.
20.7
Suspension of Access to Portal Services. DealMaker may
suspend any use of the Portal Services, remove any content or disable or
terminate any Account that DealMaker reasonably and in good faith believes
violates these Terms. DealMaker will use commercially reasonable efforts
to notify you prior to any such suspension or disablement, unless DealMaker
reasonably believes that: (a) it is prohibited from doing so under
applicable law or under legal process, such as court or government
administrative agency processes, orders, mandates, and the like; or (b) it is
necessary to delay notice in order to prevent imminent harm to the Portal
Services or a third party. Under circumstances where notice is delayed,
DealMaker will provide the notice if and when the related restrictions in the
previous sentence no longer apply.
20.8
Term. The period of effectiveness of these Terms (“Term”),
with respect to Portal Services, begins on the date the Portal User accepts it
and continues until the Portal User’s Subscription Plan expires or its use of
the Portal Services ceases (including as a result of termination in accordance
with this Section 14), whichever is later.
20.9
Subscription Term and Automatic Renewals. Subscription
Plans automatically renew unless otherwise noted. If Portal User
purchases a Subscription Plan it will automatically renew, unless, prior to the
end of the current period of effectiveness of the Subscription Plan (“Subscription
Term”): (a) Portal User terminates its Account; (b) Portal Users sets
up its Account not to auto-renew; (c) DealMaker declines to renew a
Subscription Plan; or (d) these Terms are otherwise properly terminated as
expressly permitted herein. Each renewal period is a “Renewal Term.”
Subscription Plan fees and features may change over time and we may recommend a
new Subscription Plan that is comparable to your previous Subscription Plan
that is ending. If you accept the new Subscription Plan, its terms and
conditions with these Terms will apply in the Renewal Term and thereafter.
20.10
Termination by Portal User. You may terminate your Account
at any time upon ten (10) days’ advance written notice to DealMaker. If
you wish to terminate, you must provide notice by contacting us here: info@dealmaker.tech.
DealMaker has no obligation to consider refund requests related to a
termination of a Subscription Plan even if there has been no violation of other
Terms herein.
20.11
Default; Termination by DealMaker. A Portal User will be in
default of these Terms if: (a) it fails to timely pay any amount owed to
us or an Affiliate of ours; (b) it breaches any provision of these Terms or
violates any published policy applicable to the Portal Services; (c) if, in our
sole discretion, we believe that continued use of the Portal Services by the
Portal User (or its authorized Users or signers) creates legal risk for
DealMaker or presents a threat to the security of the Portal Services or
DealMaker’s other customers. If a Portal User is in default, we may,
without notice: (i) suspend its Account and use of the Portal Services;
(ii) terminate its Account; (iii) charge reactivation fees in order to reactivate
its Account; and (iv) pursue any other remedy available to us. A
DealMaker “Affiliate” means any legal entity that DealMaker owns or that
is under common control with DealMaker.
20.12
Effect of Termination. If these Terms expires or are
terminated for any reason: (a) Portal User will pay to DealMaker any
amounts that have accrued before, and remain unpaid, as of the date of the
termination or expiration, including those for the billing cycle in which
termination occurs; (b) any and all of Portal User’s liabilities to DealMaker
that have accrued before the effective date of the expiration or termination
will survive; (c) licenses and use rights granted to Portal User with respect
to the Site and Portal Services and intellectual property will immediately
terminate; (d) DealMaker’s obligation to provide any further services to Portal
User under these Terms will immediately terminate, except any such services
that are expressly to be provided following expiration or termination of these
Terms; and (e) the provisions of Section ___ (Usage and Access Rights [NO SUCH
SECTION]), Section __ (Ownership [NO SUCH SECTION]), Section 10 (Restrictions
on Use of the Site), Section ___ (Compliance with Terms [NO SUCH SECTION]),
Section 11 (Privacy), Section 19.2 (No Refunds), Section 19.7 (Tax
Responsibility), Section 19.8 (Free Trial and Special Offers for Portal
Services), Section 20 (Data), Section ___ (Confidentiality [NO SUCH SECTION]),
Section 20.12 (Effect of Termination), Section 12 (Warranties and Disclaimers),
Section 13 (Indemnification Obligations), Section 14 (Limitations of
Liability), and Section 14 (General [CONSIDER REMOVING OTHER SUB-SECTIONS OF 14
IF 14 IS SUPPOSED TO SURVIVE ANYWAY]) will survive, as well as provisions
designated to survive under any Service Schedules and accompanying attachments
and Exhibits to these Terms.
* * * *
Schedule A – Electronic Signature Feature
This Service Schedule was last
updated on January 1, 2018. Unless otherwise defined in this Schedule,
capitalized terms will have the meaning given to them in the Terms.
1.
Definitions
“Electronic Signature” means the
electronic signature Service, which provides online display, acknowledgement,
electronic signature, and storage services in respect of binding agreements via
the Internet.
“Site” refers to the
software Sites and programs, the communication and network facilities, and the
hardware and equipment used by DealMaker or
its agents to provide the Electronic Signature service.
“Transaction Data” means the
metadata associated with a transaction (such as transaction history, image hash
value, method and time of receipt and information input, recipient names, email
addresses and signature IDs) and maintained by DealMaker in order to establish the digital audit trail.
2.
Additional Usage Limitations and
your Responsibilities
2.1
DealMaker’s provision of the Electronic
Signature service is conditioned on User’s acknowledgement of and agreement to
the following:
(a)
Electronic Signature facilitates the
execution of documents between the parties to those documents. Nothing in
this Schedule may be construed to make DealMaker
a party to any document processed through Electronic Signature, and DealMaker makes no representation or warranty regarding the
transactions sought to be effected by any document signed via Electronic
Signature;
(b)
Between DealMaker and Enterprise Users, Enterprise User has exclusive
control over and responsibility for the content, quality, and format of any
document. Documents and transaction information stored by DealMaker on the Site are maintained in an encrypted form, and DealMaker has no control of or access to their contents;
(c)
Certain types of agreements and
documents may be excepted from electronic signature laws (e.g. wills, deeds,
transfers of land and agreements pertaining to family law), or may be subject
to specific regulations promulgated by various government agencies regarding
electronic signatures and electronic records. DealMaker is not responsible for determining whether any particular
document is (i) subject to an exception to applicable electronic signature
laws; (ii) subject to any particular agency promulgations; or (iii) whether it
can be legally formed by electronic signatures;
(d)
DealMaker is not responsible for
determining how long any contracts, documents, and other records are required
to be retained or stored under any applicable laws, regulations, or legal or
administrative agency processes. Further, DealMaker is not responsible for providing transaction documents or
other documents to third parties;
(e)
Certain consumer protection or similar
laws or regulations may impose special requirements with respect to electronic
transactions involving one or more “consumers,” such as (among others)
requirements that the consumer consent to the method of contracting and/or that
the consumer be provided with a copy, or access to a copy, of a paper or other
non-electronic, written record of the transaction. DealMaker does not and is not responsible to: (i) determine
whether any particular transaction involves a “consumer;” (ii) furnish or
obtain any such consents or determine if any such consents have been withdrawn;
(iii) provide any information or disclosures in connection with any attempt to
obtain any such consents; (iv) provide legal review of, or update or correct
any information or disclosures currently or previously given; (v) provide any
such copies or access, except as expressly provided in the Documentation for
all transactions, consumer or otherwise; or (vi) otherwise to comply with any
such special requirements.
3.
Information Security and
Personal Data
3.1
User Responsibilities. Electronic
Signature provides Users with certain features and functionalities that that
Users may elect to use, including the ability to retrieve and delete documents
in the Site. Enterprise Users are primarily responsible for
properly: (a) configuring transaction documents, including indicating and
configuring Electronic Signature; (b) using and enforcing controls available in
connection with Electronic Signature (including any security controls); and (c)
taking such steps, in accordance with the functionality of Electronic
Signature, that such Users deem adequate to maintain appropriate security,
protection, deletion, and backup of User Data, which include controlling the
management of authorized Users’ access and credentials to Electronic Signature,
controlling User Data that is processed by Electronic Signature, and
controlling the archiving or deletion of documents in the Site. All Users
acknowledge that we have no obligation to protect User Data that Users elect to
store or transfer outside of the Site (e.g., offline or on-premise storage).
3.2
Information Security. We employ
commercially reasonable technical and organizational measures that are designed
to prevent unlawful or unauthorized access, use, alteration, or disclosure of
User Data.
4.
Accounts & Organizational
Administration
4.1
Each Account is associated with a
single email address. If the domain of the primary email address
associated with an Account is owned by a business or other organization
(“Entity”) and was assigned to a User as an employee, contractor or member of
the Entity, such as yourname@youremployer.com or yourname@nonprofit.org
(“Entity Email Address”), User grants that Entity and its administrator(s)
permission to: (a) identify Accounts created with an Entity Email
Address; and (b) restrict or terminate access to an Account created with an
Entity Email Address. User acknowledges and agrees that we may assist
Entity with such administration.
* * * *
Schedule B – Messenger Feature
This Service Schedule was last
updated on January 1, 2018. Unless otherwise defined in this Schedule,
capitalized terms will have the meaning given to them in the Terms.
1.
Definitions
“Messages” means the online text
messages which Users may input, access, retain, share with, and receive from
other Users via the Messenger Feature.
“Messenger Feature” means the
service within the Site that facilitates the input, access, retention, and
sharing of Messages.
2.
Additional user Responsibilities for
use of Messenger Feature
2.1
DealMaker’s provision of the Messenger
Feature for use within the Site is conditioned on User’s acknowledgement of,
and agreement to, the following:
(a)
User is solely responsible for
registering and maintaining Account in order to facilitate the communication
functionality via Messenger Feature;
(b)
As between DealMaker and User, User is solely responsible for complying with
all laws applicable to the content, communications, and use of Messenger
Feature and User represents and warrants it will use and permit use of
Messenger Feature solely for lawful purposes and only in accordance with the
terms of the Terms;
(c)
User covenants not to use Messenger
Feature for any of the following purposes: The unsolicited sending of
spam/unsolicited commercial electronic messages, third party advertisements,
derogatory, racist, sexist, homophobic or other objectionable language,
slander, libel and threats; and
(d)
All other terms and condition of the
Terms apply to User’s use of Messenger Feature as part of the Services.
