Terms and Conditions
FOOTPRINTER CUSTOMER AGREEMENT
This Footprinter Customer Agreement (the “Agreement”) is between you and Footprinter, Inc. (a Delaware, USA corporation) (“Footprinter”). If you are agreeing to this Agreement not as an individual but on behalf of your company, then “You” or “you” means your company, and you are binding your company to this Agreement.
By clicking on the “I agree” (or similar button) that is presented to you at the time of your Order, or by using or accessing Footprinter Services, you indicate your assent to be bound by this Agreement.
1 Scope of the Agreement. This agreement governs your initial purchase of Footprinter services as well as any future purchases, together referred to as the purchased services (the “Services”).
2 Your License Rights. Subject to the terms and conditions of this Agreement, Footprinter will provide you a non-exclusive, transferable and fully assignable license (your “License”) to use the Services during the applicable Subscription Term (as defined below). You acknowledge that Footprinter Services are on-line, subscription-based products and that we may make changes to the Services from time to time.
3 Your Footprinter Account.
3.1 Account Registration. As part of the registration process, you will identify an administrative user name and password for your Footprinter account. Any registration information that you provide to us must be accurate, current and complete. You must also update your information so that we may send notices, statements and other information to you by email or through your account. You are responsible for all actions taken through your account.
3.2 Orders. Footprinter’s Services order form will specify your authorized Scope of Use for the Services (your “Order”), which may include: (a) number and type of Authorized Users (as defined below), and (b) other restrictions and/or special terms. The term “Order” also includes any applicable Service or Support, or initial or additional purchases you make to increase or upgrade your Scope of Use.
3.3 Reseller Orders. This Agreement applies whether you purchase our Services directly from Footprinter or through Footprinter authorized resellers (“Reseller”). If you purchase through a Reseller, your Scope of Use shall be as stated in the Order placed by the Reseller for you, and the Reseller is responsible for the accuracy of any such Order. Resellers are not authorized to make any promises or commitments on Footprinter’s behalf, and we are not bound by any obligations to you other than what we specify in this Agreement.
3.4 Subscription Terms and Renewals. Services are provided on a subscription basis for a set term specified in your Order (“Subscription Term”). Your Order may indicate that your subscription automatically renews. In the case of an automatic renewal, you will be charged at the then-current rates unless you cancel your subscription through your Footprinter account.
3.5 Authorized Users. Only the specific individuals for whom you have paid the required fees and whom you designate through the applicable Service (“Authorized Users”) may access and use the Services. You must ensure that all Authorized Users keep their passwords for the Services strictly confidential and not share such information with any unauthorized person. User IDs are granted to individual, named persons and may not be shared. You are responsible for any and all actions taken using your accounts and passwords, and you agree to immediately notify Footprinter of any unauthorized use of which you become aware.
3.6 Support and Maintenance. Footprinter will provide the support and maintenance services for the Services during the period for which you have paid the applicable fee at the support level and during the support term specified in your Order.
4 Your Data, Your Equipment and Your Network.
4.1 Your Data. “Your Data” means any data, content, document, video, images or other materials of any type that you upload, submit or otherwise transmit to or through the Services. You will retain all right, title and interest in and to Your Data in the form provided to Footprinter. You will be solely responsible for the accuracy, quality, integrity and legality of Your Data. Subject to the terms of this Agreement, you hereby grant to Footprinter a non-exclusive, worldwide, royalty-free right to (a) collect, use, copy, store, transmit, modify and create derivative works of Your Data, in each case solely to the extent necessary to provide the applicable Service to you and (b) for Services that enable you to share Your Data or interact with other people, to distribute and perform and display Your Data as you (or your Authorized Users) direct or enable through the Service. Footprinter may also access your account in order to respond to your support requests.
4.2 Your Equipment. You are responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, browsers, networking, web servers, long distance and local telephone service (collectively, your “Equipment”). You shall also be responsible for maintaining the security of your Equipment, your account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of your account or the Equipment.
4.3 Your Network. Footprinter implements security procedures to help protect Your Data from security attacks. However, you understand that use of the Services necessarily involves transmission of Your Data over networks that are not owned, operated or controlled by us, and we are not responsible for any of Your Data that may be lost, altered, intercepted or stored across such networks. We cannot guarantee that our security procedures will be error-free, that transmissions of Your Data will always be secure or that unauthorized third parties will never be able to defeat our security measures or those of our third party service providers.
5 Intellectual Property.
5.1 Footprinter IP. Footprinter exclusively owns all right, title and interest in and to the Services. For clarity, Footprinter Services are delivered via its standard web pages available to any user with an equivalent license to use the Services.
5.2 Confidentiality. Except as otherwise set forth in this Agreement, each party agrees that all code, inventions, know-how, business, technical and financial information disclosed to such party (“Receiving Party”) by the disclosing party ("Disclosing Party") constitute the confidential property of the Disclosing Party ("Confidential Information"), provided that it is identified as confidential at the time of disclosure. Any Footprinter Services and technology descriptions and any performance information relating to the Services shall be deemed Confidential Information of Footprinter without any marking or further designation. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party's nondisclosure obligation shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law. For the avoidance of doubt, this Section shall not operate as a separate warranty with respect to the operation of any Service.
5.3 IP Indemnification. The Software includes code and libraries licensed to us by third parties, including open source software. Footprinter shall indemnify and hold you and your parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all third party claims (and all resulting costs, damages awarded to third parties, third party liabilities and expenses, including attorneys' fees and costs) arising out of infringement (or alleged infringement) by Footprinter of any third party’s intellectual property rights.
6 Financial Terms.
6.1 Return Policy. As part of our commitment to customer satisfaction, it is our customary business practice to allow you to return purchases at any time without cause. You may terminate use of Services for convenience at any time on 30 days’ written notice to Footprinter. You may be entitled to a refund depending on when you terminate use of a Service. Your refund will be calculated on a pro-rata basis based on what you paid for the Service, how many days of service you paid for, and how many days you have had access to the Service. Refund requests should be directed to Footprinter’s support department.
6.2 Payment. You will pay Footprinter the fees set forth in the Order for the Services (“Fees”). All Footprinter subscription Fees are payable in advance. Third parties may invoice for Services if they have prepared the Order for you.
6.3 Taxes. Your payments of Fees under this Agreement exclude any taxes or duties payable in respect of the Services in the jurisdiction where the payment is either made or received. To the extent that any such taxes or duties are payable by Footprinter, you must pay to Footprinter the amount of such taxes or duties in addition to any fees owed under this Agreement.
6.4 Billing Issues. If you believe that Footprinter has billed you incorrectly, you shall be entitled to withhold such disputed amount. In such event, you shall contact Footprinter no later than 60 days after due date for payment of such invoice in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Footprinter’s support department.
7 Term and Termination.
7.1 Term. This Agreement is in effect for as long as you have a valid License or Subscription Term (“Term”), unless terminated earlier as permitted in this Agreement. Either party may terminate this Agreement before the expiration of the Term if the other party materially breaches any of the terms of this Agreement and does not cure the breach within thirty (30) days after written notice of the breach. Either party may also terminate the Agreement before the expiration of the Term if the other party ceases to operate, declares bankruptcy, or becomes insolvent or otherwise unable to meet its financial obligations. The following provisions will survive any termination or expiration of this Agreement: Sections 5.2 (Confidentiality), 8 (Restrictions), 10 (Limitation of Liability), and 12 (Governing Law; Jurisdiction).
7.2 Return of Your Data. Footprinter will, within 30 days of any termination of this Agreement, return or provide available to you electronically all Your Data if requested by you. For clarity, Footprinter will not retain any of your data after this period. Footprinter may charge a reasonable return fee based on the size of Your Data and how you would like it returned to you.
8 Restrictions. The Services and any software that is provided will be hosted, installed, accessed and maintained only by Footprinter. You will not reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation or data related to the Services; modify, translate, or create derivative works based on the Services; use the Services for timesharing or service bureau purposes; or remove any proprietary notices or labels. You will use the Services in compliance with all applicable laws and regulations (including but not limited to applicable policies and laws related to spamming, privacy, intellectual property, consumer and child protection, obscenity or defamation).
9.1 Due Authority. Each party represents and warrants that it has the legal power and authority to enter into this Agreement, and that, if you are an entity, this Agreement and each Order is entered into by an employee or agent of such party with all necessary authority to bind such party to the terms and conditions of this Agreement.
9.2 Warranty Disclaimer. Footprinter shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Footprinter or by third-party providers, or because of other causes beyond Footprinter’s reasonable control. FOOTPRINTER DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. UNLESS STATED OTHERWISE IN THIS AGREEMENT, THE SERVICES ARE PROVIDED “AS IS” AND FOOTPRINTER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
10 Limitation of Liability. EXCEPT FOR (1) EITHER PARTY’S EXPRESS INDEMNIFICATION OBLIGATIONS IN THIS AGREEMENT, OR (2) YOUR BREACH OF SECTION 8 (RESTRICTIONS) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND A PARTY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY YOU TO FOOTPRINTER FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. The parties agree that the limitations specified in this Section 9 (Limitation of Liability) will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
11 Publicity Rights. We may identify you as a Footprinter customer in our promotional materials. You may request that we stop doing so by contacting the support department of Footprinter at any time. Please note that it may take us up to 30 days to process your request.
12 Governing Law; Jurisdiction. This Agreement shall be governed by the laws of the State of California, USA without regard to its conflict of law’s provisions.
13 Miscellaneous. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sub-licensable by you except with Footprinter’s prior written consent. Footprinter may transfer and assign any of its rights and obligations under this Agreement without consent. Footprinter will notify you in this event and then you may exercise your option to terminate services.
This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and you do not have any authority of any kind to bind Footprinter in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.