Product Terms of Service
Effective November 13, 2023
These rules (the "Agreement") are put in place to outline how users ("the Customer") interact with the service ("Service") provided by the Delaware company Accelerize 360, Inc. located at 750 N St Paul St, Suite 200, Dallas, TX 75201 ("A360"). Any terms used in capitals are defined within this Agreement.
The Customer agrees to these terms by purchasing or using the Service that references this Agreement. Those agreeing to this on behalf of a company or another kind of legal entity must have the authority to bind such entity to this agreement. If Customer doesn't agree with these terms, then Customer won't be able to use the service.
1. Service
1.1. Service Description. A360 offers cloud-based software designed for enterprise teams (the "Service"). The Service might also include helpful templates, documents, or information (referred to as "A360 Content") to make the experience better. Anything that the Customer or the Customer’s users provide through the Service is called a "User Submission". It's important to note that the Customer is the only one responsible for all User Submissions the Customer contributes to the Service.
1.2. Customer’s Subscription. As long as the Customer follows this Agreement's terms, the Customer can purchase a subscription to, and have the right to access and use, the Service. The specifics of the subscription will be detailed in one or more orders that both parties agree upon, which will reference this Agreement and outline the business details related to the subscription (these are known as "Orders").
Each subscription lasts for a certain period, which is described in the relevant Order ("Subscription Period"). Only authorized individuals can use and access the Service, and they can only do so for the Customer’s business needs, not for the benefit of anyone else ("Users").
1.3. A360’s Ownership. Everything A360 provides to the Customer as part of our Service – the Software, Content, Documentation, and any other materials ("A360 Materials") – is owned by A360. A360 holds all rights, titles, and interests (including, but not limited to, patents, copyrights, trademarks, trade secrets, and other intellectual property rights) in the A360 Materials. This includes all related and underlying technology, as well as any updates, enhancements, upgrades, modifications, patches, workarounds, fixes, and any derivative works or modifications to any of these. No licenses are automatically granted under this Agreement. If A360 hasn't expressly given the Customer a right in this Agreement, then it is reserved by A360.
1.4. Permissions. The Service may include settings that each User can customize, letting them give other Users permission to perform different tasks within the Service ("Permissions"). It is solely the Customer’s responsibility to manage these Permissions, including deciding which Users can set them. A360 doesn’t manage these Permissions and aren't liable for the Permissions set by the Customer and their Users, unless all parties have agreed to do so in a separate managed services agreement.
2. Restrictions
2.1. Customer’s Responsibilities. The Customer is accountable for all activity on their users' accounts, except if such activity is caused by a malicious third party who exploits vulnerabilities in the Service. The Customer needs to ensure that their users understand and follow the obligations and restrictions in this Agreement, and that the Customer will be held responsible if any user breaches these terms.
2.2. Restrictions on Use. The Customer agrees that they and their users or any third parties won’t do the following directly or indirectly: (a) Modify, translate, copy, or create derivative works based on the Service. (b) Try to reverse engineer the Service to discover source codes, non-public APIs, or underlying ideas or algorithms, unless the law prohibits this restriction. (c) License, sublicense, sell, resell, rent, lease, transfer, assign, distribute, share, or commercially exploit the Service or make it available to any third party. (d) Remove or obscure any copyright, trademark, or other proprietary notices, legends, or A360 branding contained in or on the Service. (e) Use the Service in a way that violates any applicable federal, state, local, or international law or regulation. (f) Attempt to gain unauthorized access to the Service or disrupt it in any way, including introducing viruses or using denial-of-service attacks. (g) Use or access the Service to build or support, or help a third party build or support, products or services that compete with the Service. (h) Try to probe, scan, or test the vulnerability of the Service or any A360 system or networks.
If A360 believes the Customer is using the Service in a way that harms A360, the Service, or poses a threat to the security, integrity, or availability of the Service, A360 may suspend the Customer’s access. A360 will make reasonable efforts to give the Customer notice, limit the suspension to the involved accounts, and lift the suspension as soon as the issue is resolved.
2.3. API Access Restrictions. As part of provision of its Service, A360 may provide the Customer with access to one or more application program interfaces (“API(s)”). A360 may, in its sole discretion, set and enforce limits on Customer’s use of the API and Customer agrees to adhere to such limits. A360 may also suspend Customer’s access to the API or cease providing the API at any time.
2.4 Third-Party Applications. The Service might interact with third-party products, services, or applications not owned or controlled by us at Accelerize 360, Inc. (for example, QuickBooks), called "Third-Party Applications". If the Service and a Third-Party Application need to work together, the Customer might have to provide us with login information for that Third-Party Application. The Customer is doing this solely so A360 can provide the Service, and by doing so, the Customer promises us that they have the right to give us this login information without breaking any terms and conditions that govern the use of the Third-Party Application. A360 doesn’t make any guarantees or warranties about any Third-Party Applications. If the Customer has any issues or claims related to a Third-Party Application, they should contact the provider of that application directly. The Customer’s use of Third-Party Applications is at their own risk, and A360 is not liable or obligated in any way for anything related to these Third-Party Applications, including the Customer’s use or inability to use them.
3. Payment Obligations
3.1. Fees. The Customer will pay for access to and use of the Service as set out in the relevant Order ("Fees"). All Fees will be paid in the currency stated in the Order, or, if no currency is specified, in U.S. dollars. Payment obligations can't be canceled and, except as expressly stated in this Agreement, can't be refunded. A360 may change the Fees or introduce new ones at its sole discretion. The Customer always has the right to choose not to renew the subscription if they don't agree with any new or revised Fees. Fees don't include any taxes, levies, duties, or similar governmental assessments of any nature (collectively, "Taxes"). The Customer is responsible for paying all Taxes associated with purchases. If A360 has to pay or collect Taxes for which the Customer is responsible, A360 will invoice the Customer for that amount unless a valid tax exemption certificate, authorized by the appropriate taxing authority, has been provided in advance. For clarity, A360 is solely responsible for taxes assessed against us based on the income, property, and employees.
3.2. Payment. A360, either directly or through a third-party payment processor ("Payment Processor"), will charge the Customer for the Fees via credit card or ACH payment, using the payment information provided to us. A360 can charge the Customer’s credit card or ACH payment method for any services provided under the Order, including recurring Fees. It's the Customer’s responsibility to provide us with current and valid credit card or ACH information; failure to do so may result in suspension of access to the Services. A360 also has the right to offset any Fees owed to it. If the Customer pays the Fees through a Payment Processor, payment processing will be subject to their terms, conditions, and privacy policies as well as this Agreement. A360 is not responsible for any errors made by, or other actions or omissions of, the Payment Processor. A360 reserves the right to correct any errors or mistakes made by the Payment Processor, even if A360 has already requested or received payment. If the Customer has accepted an Order, recurring charges (e.g., monthly billing) will be charged to the Customer’s payment method without further authorization, until the Customer terminates this Agreement in accordance with its terms or change the payment method in the account in the Service.
3.3. Failure to Pay. If the Customer fails to pay any Fees when due, A360 may suspend access to the Service until the Customer pays these overdue amounts. The Customer authorizes us to try charging their payment method up to four times if the initial charge is unsuccessful. If the Customer believes A360 has billed incorrectly, they must contact us no later than 60 days after the closing date on the first billing statement where the error or problem appeared, to receive an adjustment or credit. Once A360 receives notice of a disputed invoice, it will review and provide the Customer with a written decision about the dispute, including evidence supporting its decision. If A360 reasonably determines that the billed amounts are due, the Customer will pay these amounts within ten days of us notifying the Customer of the decision in writing.
4. Term and Termination
4.1. Agreement Term and Renewals. Subscriptions to access and use the Service start on the date stated in the relevant Order ("Subscription Start Date") and last for the duration of the Subscription Period. The Customer can choose not to renew the Subscription Period by notifying us at products@accelerize360.com (as long as A360 confirms the cancellation in writing). This Agreement becomes effective on the first day of the Subscription Period and stays effective for the duration of the Subscription Period stated in the Order, any renewals of the Subscription Period, and any period when the Customer is using the Service even if such use isn't under a paid Order ("Term"). If A360 terminates this Agreement, it automatically ends all Orders. If the Customer cancels or doesn’t renew their paid subscription to the Service, the subscription may still be accessible but will automatically downgrade to a version of the Service with fewer features and functionality that A360 offers to non-paying subscribers ("Free Version"), if available. If the Customer or A360 terminates this Agreement or the Customer deletes data within the Service, they won't have access to the Free Version. Either party can end this Agreement with written notice to the other party if the other party seriously breaches this Agreement and doesn't fix the breach within thirty (30) days after receiving notice of the breach. A360 can end the Customer’s access to the Free Version at any time with notice.
4.2. Effect of Termination. If the Customer ends this Agreement because A360 didn't fix a breach, A360 will refund any unused, prepaid Fees for the remainder of the current Subscription Period. If A360 ends this Agreement because the Customer didn't fix a breach, they will pay any unpaid Fees covering the remainder of the current Subscription Period after the effective date of termination, if any. In no event will ending this Agreement relieve the Customer of the obligation to pay any Fees owed to A360 for the period prior to the effective date of termination. Upon any ending of this Agreement, all rights and licenses A360 granted the Customer under this Agreement immediately end; the Customer no longer has the right to access or use the Service. Within thirty (30) days of ending this Agreement for cause, upon the Customer’s request following termination, or if they delete their workspace within the Service, A360 will delete the Customer’s User Information, including passwords and all related information, files, and User Submissions, unless the Customer requests earlier deletion in writing. If the Customer is using a Free Version, A360 will keep User Submissions and User Information to facilitate such use. A360 may delete all User Submissions or User Information if the Customer keeps an account in a Free Version but don't use the account for a period of one (1) year or more.
4.4. Survival. Sections titled “A360’s Ownership”, “Third-Party Applications”, “Payment Obligations”, “Term and Termination”, “Warranty Disclaimer”, “Limitation of Liability”, “Confidentiality”, “Data” and “General Terms” will survive any termination or expiration of this Agreement.
5. Warranty and Limitation of Liability
5.1. Warranty Disclaimer. EXCEPT AS EXPLICITLY PROVIDED HERE, THE SERVICES AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT ANY WARRANTIES OF ANY KIND. A360 SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. THE CUSTOMER ACKNOWLEDGES THAT A360 DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. SOME PLACES DO NOT ALLOW THE DISCLAIMER OF CERTAIN TYPES OF WARRANTIES. THE DISCLAIMERS ABOVE WILL NOT APPLY TO THE EXTENT THAT THE LAW DOES NOT ALLOW THEM.
5.2 Limitation of Liability. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, A360 WILL NOT BE LIABLE FOR ANY REASON RELATED TO OR ARISING OUT OF THIS AGREEMENT, WHETHER IN AN ACTION BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR ANY OTHER LEGAL THEORY, FOR (A) INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, (B) ANY DAMAGES BASED ON USE OR ACCESS, INTERRUPTION, DELAY OR INABILITY TO USE THE SERVICE, LOST REVENUES OR PROFITS, DELAYS, INTERRUPTION OR LOSS OF SERVICES, BUSINESS OR GOODWILL, LOSS OR CORRUPTION OF DATA, LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION OR SHUTDOWN, FAILURE TO ACCURATELY TRANSFER, READ OR TRANSMIT INFORMATION, FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION, SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION OR BREACHES IN SYSTEM SECURITY, OR (C) ANY DAMAGES THAT IN TOTAL EXCEED THE TOTAL FEES THE CUSTOMER PAID OR PAYABLE FOR THE SERVICE THAT IS OR THE PROFESSIONAL SERVICES THAT ARE THE SUBJECT OF THE CLAIM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT THAT CAUSED SUCH DAMAGES. THESE LIMITATIONS WILL APPLY WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
6. Confidentiality
6.1. Definition. The "Receiving Party" understands that the "Disclosing Party" may share business, technical or financial information that should be considered confidential due to its nature and the context of its disclosure. This is referred to as the Disclosing Party’s "Confidential Information". A360's Confidential Information includes details about the Service that are not publicly available. The Customer's Confidential Information includes User Information and User Submissions. Both parties deem this Agreement and all Order information as Confidential Information. However, Confidential Information does not include information that a) becomes publicly available without violating any obligation to the Disclosing Party; b) was already known to the Receiving Party prior to disclosure, without violating any obligation to the Disclosing Party; c) is received from a third party without violating any obligation to the Disclosing Party; or d) is independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information.
6.2. Protection and Use of Confidential Information. The Receiving Party will protect the Disclosing Party's Confidential Information with the same degree of care used for its own confidential or proprietary information, using at least a reasonable degree of care. Access to the Confidential Information will be limited to Representatives who need to know this information for this Agreement and who are bound by confidentiality and non-use obligations just as protective as this Agreement. Except as detailed here, the Receiving Party will not disclose the Disclosing Party's Confidential Information to any third parties without prior written consent and will not use this Confidential Information for any purpose other than fulfilling obligations under this Agreement. Both parties can share the terms of this Agreement or the other party's name with prospective investors or acquirers, provided these parties are bound to standard confidentiality obligations.
6.3. Compelled Access or Disclosure. If the Receiving Party is legally required to access or disclose the Disclosing Party's Confidential Information, it may do so. However, the Receiving Party must notify the Disclosing Party in advance of this compelled access or disclosure (as far as legally allowed) and provide reasonable assistance if the Disclosing Party wants to challenge the access or disclosure, at the Disclosing Party's expense.
6.4. Feedback. From time to time, the Customer may provide suggestions, comments, or other feedback about the Service ("Feedback"). Feedback only refers to comments regarding the Service, and does not include User Information or User Submissions. A360 may wish to incorporate Feedback into its Service, and this clause provides A360 with the necessary license to do so. The Customer grants A360 a royalty-free, worldwide, perpetual, irrevocable, fully transferable and sublicensable right and license to use, disclose, reproduce, modify, create derivative works from, distribute, display and exploit any Feedback as A360 sees fit. However, A360 will not identify the Customer as the provider of such Feedback.
7. Data and Privacy
7.1. User Information. Users may need to provide information like their name, email address, username, IP address, browser, and operating system ("User Information") to log into and use the Service. The Customer allows A360 and its subcontractors to store, process, and retrieve this User Information in connection with the Customer's use of the Service. The Customer asserts and guarantees that they have all necessary rights to transfer User Information to A360 and to process it as outlined in this Agreement. The Customer is responsible for all User Information and for any liability that arises if usernames, passwords, tokens, or keys in the Customer's possession are used by unauthorized parties. The Customer grants A360 the right to access, use, process, copy, distribute, perform, export, and display User Information, but only as needed to provide the Service to the Customer, prevent or address service or security issues, comply with the law, and as expressly permitted by the Customer in writing.
7.2. User Submissions. The Customer grants A360 and its subcontractors a non-exclusive, worldwide, royalty-free, paid-up, transferable right and license to use, process, and display User Submissions solely for providing the Service to the Customer. Except for the limited rights and licenses granted in this Agreement, the Customer will maintain all rights, titles, and interest in and to the User Submissions, and there are no implied licenses under this Agreement.
7.3. Service Data. As the Customer (including its Users) interacts with the Service, the Service collects data about its performance and operational metrics ("Service Data"). As long as the Service Data is aggregated and anonymized, and no User Information, User Submissions, or other personally identifying information of the Customer is revealed to any third party, A360 is free to use the Service Data in any manner. A360 owns all rights, titles, and interest in this Service Data. To clarify, this section does not give A360 the right to identify the Customer (including its Users) as the source of any Service Data.
7.4 Personal Information. A360 does not collect any non-anonymized personal data about the customer (or its Users), and does not share personal data with any third-parties.
7.5 Security Incident Response. If A360 becomes aware of a potential security incident, A360 will notify the customer in writing within 48 hours of the potential incident. Should the customer become aware of a potential security incident, they should notify A360 via email at products@accelerize360.com as soon as possible, and A360 will respond within 24 hours.
8. General Terms
8.1. Publicity. With the Customer's prior written consent, A360 may identify the Customer and use and display the Customer's name, logo, trademarks, or service marks on A360's website and in A360's marketing materials.
8.2. Force Majeure. A360 will not be liable for any failure or delay in the performance of its obligations due to events beyond its reasonable control that make it impossible or commercially impracticable to perform its obligations, such as failure by a third-party hosting provider or utility provider, strikes, shortages, riots, fires, acts of God, war, terrorism, and governmental action.
8.3. Changes. The Customer acknowledges that the Service is an online, subscription-based product, and A360 may make changes to the Service to improve the customer experience, provided that A360 will not materially decrease the core functionality of the Service. A360 may also modify the terms of this Agreement unilaterally, by notifying the Customer at least thirty (30) days before such changes take effect.
8.4. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. There are no third-party beneficiaries to this Agreement; a person who is not a party to this Agreement may not enforce any of its terms under any applicable law.
8.5. Email Communications. Notices under this Agreement will be provided as follows: A360 will send all service-related notices by email, though A360 may choose to provide notice through the Service. Notices to A360 must be sent to products@accelerize360.com, and notices to the Customer will be sent to the email(s) provided through the Service. Notices are considered duly given the business day after they are sent, in the case of email notices, or the same day, in the case of notices through the Service.
8.6. Severability, Amendment and Waivers. This Agreement will be enforced to the fullest extent permitted under applicable law. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted to best accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect. No modification or amendment to this Agreement will be effective unless it is in writing and accepted by an authorized representative of both parties. No delay or failure by either party in exercising any right under this Agreement will constitute a waiver of that right. Any waiver under this Agreement must be in writing and signed by an authorized representative of the waiving party.
8.7. Assignment. Neither party will assign or delegate any of its rights or obligations under this Agreement, whether by operation of law or otherwise, without the prior written consent of the other party (which should not be unreasonably withheld). Despite the foregoing, A360 may assign this Agreement in its entirety (including all Orders), without the consent of the Customer, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of A360’s assets. Any attempted assignment in violation of this section is void. Subject to the foregoing, this Agreement will bind and benefit the parties and their respective successors and permitted assigns.
8.8 Governing Law; Venue; Disputes. This Agreement shall be governed by and construed exclusively under the laws of the State of Delaware, without regard to any conflict-of-laws rules. Any dispute arising under or relating to this Agreement, or to any Statement of Work issued in conjunction with it, or to any services rendered by Accelerize at the request of Customer, shall be adjudicated exclusively by arbitration conducted in Dallas County, Dallas by the American Arbitration Association according to the commercial arbitration rules of that association then in effect. The prevailing party in any such arbitration shall be entitled to an award of all reasonable attorney fees the prevailing party incurred in connection with the arbitrated dispute, as well as all arbitration fees and other costs associated with the proceedings.
8.9 Notices. Any notices required or allowed by this Agreement or any work order shall be served via Certified U.S. Mail, return receipt requested, with a copy to be sent simultaneously via email. Notices shall be deemed complete four calendar days after mailing. If given to A360, such notice shall be addressed and/or directed to:
Accelerize 360, Inc.
750 N St Paul St, Suite 200
Dallas, Texas 75201
