These WriterStat Cloud Terms of Service (these “Terms”) describe your rights and responsibilities as a customer of our Cloud Products. These Terms cover both (groups, companies, schools, and organizations) and individuals. And are applicable to all our various Cloud Products.  These Terms are between you and the WriterStat entity that owns or operates the Cloud Product that you are using or accessing (“WriterStat”, “we” or “us”).  “You” means the entity you represent in accepting these Terms or, if that does not apply, you individually.  If you are accepting on behalf of your group, company, school, organization, or another entity, or yourself individually, you represent and warrant that: (i) you have full legal authority to bind your group, company, school, organization, or such entity or yourself individually to these Terms; (ii) you have read and understand these Terms; and (iii) you agree to these Terms on behalf of the party that you represent. If you don’t have the legal authority to bind your group, company, school, organization, or the applicable entity or yourself individually please do not click “I agree” (or similar button or checkbox) that is presented to you.  PLEASE NOTE THAT IF YOU SIGN UP FOR A CLOUD PRODUCT ON BEHALF AS A REPRESENTATIVE OF YOUR GROUP, COMPANY, SCHOOL, OR ANOTHER ENTITY, THEN (A) YOU WILL BE DEEMED TO REPRESENT SUCH PARTY, (B) YOUR CLICK TO ACCEPT WILL BIND YOUR PARTY OR THAT ENTITY THAT YOU SIGNED ON BEHALF OF TO THESE TERMS, AND (C) THE WORD “YOU” IN THESE TERMS WILL REFER TO YOUR GROUP, COMPANY, SCHOOL, OR THAT ENTITY THAT YOU SIGNED ON BEHALF OF.

These Terms are effective as of the date you first click “I agree” (or similar button or checkbox) or use or access a WriterStat Cloud Product, whichever is earlier (the “Effective Date”). These Terms do not have to be signed in order to be binding. You indicate your assent to these Terms by clicking “I agree” (or similar button or checkbox) at the time you register for a WriterStat Cloud Product, create a WriterStat Cloud Product account, or place a WriterStat Order. For No-Charge Products, you also indicate your assent to these Terms by accessing or using the applicable No-Charge WriterStat Product.  

1. What these Terms cover.

1.1. Cloud Products. These Terms govern our Cloud Products, related Support, and Additional Services. These Terms include Our Policies (including our Privacy Policy), the Product-Specific Terms, and your Orders.

2. How Cloud Products are administered by groups, companies, schools, or organizations.

2.1. For Administrators. Through the Cloud Products and depending on the Cloud Product, you may be able to specify certain group, company, school, or organization End Users as Administrators in certain products, who will have important rights and controls over your use of Cloud Products and End User Accounts. This may include making Orders for Cloud Products or enabling Apps; creating, de-provisioning, monitoring or modifying End User Accounts, and setting End User usage permissions; and managing access by End Users or others. Without limiting Section 2.4 (Responsibility for End Users), which fully applies to Administrators, you are responsible for whom you allow to become Administrators and any actions they take, including as described above. You agree that our responsibilities do not extend to the internal management or administration of the Cloud Products for you, when used by and in a group, company, school, or organization area.

2.2. For Reseller as Administrator. If you order Cloud Products through a Reseller, then you are responsible for determining whether the Reseller may serve as an Administrator for your group, company, school, or organization and for any related rights or obligations in your applicable agreement with the Reseller.  As between you and WriterStat, you are solely responsible for any access by Reseller to your accounts or your other End User Accounts.

2.3. For End User Consent. In a group, company, school, or organization setting/area you will provide all required disclosures to and will obtain and maintain all required consents from End Users to allow: (i) Administrators to have the access described in these Terms and the Privacy Policy; and (ii) WriterStat’s provision of the Cloud Products to Administrators and End Users. You will provide evidence of such consents upon our reasonable request. 

2.4. Responsibility for End Users. Our Cloud Products have various user onboarding flows. Some Cloud Products require users to be designated by Administrators; some allow users to sign up for individual accounts directly; some allow users to sign up for individual accounts which can become associated with groups or organizations at a later time; and some may allow users to invite other users. You are responsible for understanding the settings and controls for each Cloud Product you use and for controlling whom you allow to become an End User. If as a group, company, school, or organization payment is required for End Users to use or access a Cloud Product, then we are only required to provide the Cloud Products to those End Users for whom you have paid the applicable fees, and only such End Users are permitted to access and use the Cloud Products. Some Cloud Products may allow you to designate different types of End Users, in which case pricing and functionality may vary according to the type of End User. You are responsible for compliance with these Terms by all End Users, including for any payment obligations through a group, company, school, or organization. Please note that you are responsible for the activities of all your End Users as a group, company, school, or organization, including Orders they may place and how End Users use the Data, even if those End Users are not from your organization or domain. We may display our User Notice to End Users at sign up, account creation, Cloud Product registration, or in-product for groups, companies, schools, or organizations. If you use single sign-on (SSO) for identity management of your Cloud Product(s) for a group, company, school, or organization such that End Users will bypass these screens and our User Notice, you are responsible for displaying our User Notice to End Users and for any damages resulting from your failure to do so.

2.5. Credentials. As a group, company, school, or organization you must require that all End Users keep their user IDs and passwords for the Cloud Products strictly confidential and do 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 End User Accounts and passwords, and you agree to immediately notify us of any unauthorized use of which you become aware.

2.6. Domain Name Ownership. Where you are required to specify a domain for a group, company, school, or organization for the operation of a Cloud Product or certain Cloud Product features, we may verify that you own or control that domain. If you do not own or control the domain you specify, then we will have no obligation to provide you with the Cloud Product or Cloud Product features.

3. What's included in your Cloud Product subscriptions; what are the restrictions.

3.1. Access to Cloud Products. Subject to these Terms and during the applicable Subscription Term, you may access and use the Cloud Products for your group, company, school, organization, own business or individual personal use, as applicable, all in accordance with these Terms, the applicable Order and the Documentation. This includes the right, as part of your authorized use of the Cloud Products, to download and use the client software associated with the Cloud Products. The rights granted to you in this Section 3.1 are non-exclusive, non-sublicensable and non-transferable.

3.2. Support. During the Subscription Term, we will provide Support for the Cloud Products (to the extent applicable), and the applicable Order.

3.3. Restrictions. Except as otherwise expressly permitted in these Terms, you will not: (a) reproduce, modify, adapt or create derivative works of the Cloud Products; (b) rent, lease, distribute, sell, sublicense, transfer or provide access to the Cloud Products to a third party; (c) use the Cloud Products for the benefit of any third party; (d) incorporate any Cloud Products into a product or service you provide to a third party; (e) interfere with or otherwise circumvent mechanisms in the Cloud Products intended to limit your use; (f) reverse engineer, disassemble, decompile, translate or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to any Cloud Products, except to the extent expressly permitted by applicable law (and then only upon advance notice to us); (g) remove or obscure any proprietary or other notices contained in any Cloud Product; (h) use the Cloud Products for competitive analysis or to build competitive products; (i) publicly disseminate information regarding the performance of the Cloud Products; or (j) encourage or assist any third party to do any of the foregoing.

4. Our security and data privacy policies.

4.1. Security and Certifications. We implement and maintain physical, technical and administrative security measures designed to protect Your Data from unauthorized access, destruction, use, modification, or disclosure. We also maintain a compliance program that includes independent third-party audits and certifications. Note: We do not insure against authorized access.

4.2. Privacy. We collect brief data and information about you and your End Users in connection with your and your End Users’ use of the Cloud Products and otherwise in connection with these Terms. We collect and use all such data and information in accordance with our Privacy Policy and for the betterment of how our software works and to help you, the user, which you acknowledge.

4.3. Improving Cloud Products. We are always striving to improve the WriterStat Cloud Products. In order to do so, we use analytics techniques to better understand how our Cloud Products are being used. For more information on these techniques and the type of data collected to improve your experience, please read our Privacy Policy.

5. Terms that apply to Your Data.

5.1. Using Your Data to provide Cloud Products to You. You retain all right, title and interest in and to Your Data in the form submitted to the Cloud Products. Subject to these Terms, and solely to the extent necessary to provide you functionality and display the Cloud Products to you, and to those who you authorize, you grant us a worldwide, limited term license to functionally access on your behalf and only on your behalf as a software to access, use, process, copy, distribute, perform, export, and display Your Data to you and only to you and to those you authorize to us as directed solely by you through the functionality provided to you. And solely to the extent in the use of the functionality that you use from us, for display and functionality in a Cloud Product. We may need to access Your Data and account to provide support to you, during the support process, in order to respond to your support requests. We encrypt parts of Your Data and store it encrypted in your database and only decrypt it for you on your local device as described in the Privacy Policy and only for your use and display.

5.2. Your Data Compliance Obligations. You and your use of Cloud Products (including use by your End Users) must comply at all times with these Terms and all Laws. Other than our express obligations under Section 4 (Our security and data privacy policies), we assume no responsibility or liability for Your Data, and you are solely responsible for Your Data and the consequences of submitting and using it with the Cloud Products.

5.3. Your Indemnity. You will defend, indemnify and hold harmless us (and our Affiliates, officers, directors, agents and employees) from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) resulting from any claim arising from or related to (i) your breach of Section 2.3 (End User Consent In a Group, Company, School, or Organization Setting/Area) or any claims or disputes brought by you or your End Users arising out of their use of Cloud Products, (ii) your breach (or alleged breach) of Sections 5.2 (Your Data Compliance Obligations).

5.4. Removals and Suspension. If we deem in certain Cloud Products such action necessary based on your violation of these Terms, including Our Policies, we may suspend your access to the Cloud Products. We will use reasonable efforts to provide you with advance notice of suspensions when practicable, but if we determine that your actions endanger the operation of the Cloud Product or other users, we may suspend your access immediately without notice. We have no liability to you for suspending your access to any Cloud Products as described in this Section 5.4.

6. Using WriterStat developer assets. Access to any of our APIs, SDKs or other WriterStat developer assets is subject to the WriterStat Developer Terms, which is a separate agreement.

7. Billing, renewals, and payment.

7.1. Monthly and Annual Plans. Except for No-Charge Products, all Cloud Products are offered either on a monthly subscription basis or an annual subscription basis.

7.2. Renewals. Except as otherwise specified in your Order, unless either party cancels your subscription prior to expiration of the current Subscription Term, your subscription will automatically renew for another Subscription Term of a period equal to your initial Subscription Term. You will provide any notice of non-renewal through either the account settings in certain Cloud Products if available or by contacting our support team. Cancelling your subscription means that you will not be charged for the next billing cycle, but you will not receive any refunds or credits for amounts that have already been charged. All renewals are subject to the applicable Cloud Product continuing to be offered and will be charged at the then-current rates.

7.3. Adding Users. You may as a group, company, school, or organization add users, increase storage limits, or otherwise increase your use of Cloud Products by placing a new Order or modifying an existing Order. Unless otherwise specified in the applicable Order, we will charge you for any increased use at our then-current rates, prorated for the remainder of the then-current Subscription Term.

7.4. Payment. You will pay all fees in accordance with each Order, by the due dates and in the currency specified in the Order. Other than as expressly set forth in 13.3 (Warranty Remedy), or Section 17 (Changes to these Terms), all amounts are non-refundable, non-cancelable and non-creditable. You agree that we may bill your credit card or other payment method for renewals, additional users or overages to set limits (for groups, companies, schools, or organizations), or scopes of use, and unpaid fees, as applicable.

7.5. Delivery. We will deliver the login and welcome instructions for Cloud Products to your email account right after we have received payment of the applicable fees(dependent on internet and email availability, connections, and volume). You are responsible for accessing your email account to determine that we have received payment and that your Order has been processed. All deliveries under these Terms will be electronic.

8. If you purchased through a Reseller. If you make any purchases through an authorized partner or reseller of WriterStat (“Reseller”):

(a) Instead of paying us, you will pay the applicable amounts to the Reseller, as agreed between you and the Reseller. We may suspend or terminate your rights to use Cloud Products if we do not receive the corresponding payment from the Reseller and we will try and make it right with you.

(b) Your order details (e.g., the Cloud Products you are entitled to use, the number of End Users, the Subscription Term, etc.) will be as stated in the Order placed with us by the Reseller on your behalf, and Reseller is responsible for the accuracy of any such Order as communicated to us.

(c) If you are entitled to a refund under these Terms, then unless we otherwise specify, we will refund any applicable fees to the Reseller and the Reseller will be solely responsible for refunding the appropriate amounts to you.

(d) Resellers are not authorized to modify these Terms or make any promises or commitments on our behalf, and we are not bound by any obligations to you other than as set forth in these Terms.

(e) The amount paid or payable by the Reseller to us for your use of the applicable Cloud Product under these Terms will be deemed the amount actually paid or payable by you to us under these Terms for purposes of calculating the liability cap in Section 14.2.

9. Evaluations, trials, and betas. We may offer certain Cloud Products (including some WriterStat Apps) to you at no charge, including free accounts, trial use and Beta Versions as defined below (collectively, “No-Charge Products”). Your use of No-Charge Products is subject to any additional terms that we specify and is only permitted during the Subscription Term we designate (or, if not designated, until terminated in accordance with these Terms). Except as otherwise set forth in this Section 9, the terms and conditions of these Terms governing Cloud Products, including Section 3.3 (Restrictions), fully apply to No-Charge Products. We may modify or terminate your right to use No-Charge Products at any time and for any reason in our sole discretion, without liability to you. You understand that any pre-release and beta Cloud Products, and any pre-release and beta features within generally available Cloud Products, that we make available (collectively, “Beta Versions”) are still under development, may be inoperable or incomplete and are likely to contain errors and bugs more than generally available Cloud Products. We make no promises that any Beta Versions will ever be made generally available. In some instances, we may charge a fee in order to allow you to access Beta Versions, but the Beta Versions will still remain subject to this Section 9. All information regarding the characteristics, features, or performance of any No-Charge Products (including Beta Versions) constitutes our Confidential Information. To the maximum extent permitted by applicable law, we disclaim all obligations or liabilities with respect to No-Charge Products, including any Support, warranty and indemnity obligations. NOTWITHSTANDING ANYTHING ELSE IN THESE TERMS, YOU AGREE OUR MAXIMUM AGGREGATE LIABILITY TO YOU IN RESPECT OF NO-CHARGE PRODUCTS WILL BE THE AMOUNT PAID TO US FOR THE PRODUCT.

10. IP Rights in the Cloud Products and Feedback. Cloud Products are made available on a limited access basis, and no ownership right is conveyed to you, irrespective of the use of terms such as “purchase” or “sale”. We and our licensors have and retain all right, title and interest, including all intellectual property rights, in and to Our Technology (including the Cloud Products). From time to time, you may choose to submit Feedback to us. We may in connection with any of our products or services freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise. No Feedback will be considered your Confidential Information, and nothing in these Terms limits our right to independently use, develop, evaluate, or market products or services, whether incorporating Feedback or otherwise.

11. Confidentiality. Except as otherwise set forth in these Terms, each party agrees that all code, inventions, know-how and 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 or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any of Our Technology and any performance information relating to the Cloud Products will be deemed our Confidential Information without any marking or further designation. Except as expressly authorized herein, the Receiving Party will (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under these Terms. The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know, provided that they are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 11 and that the Receiving Party remains responsible for compliance by them with the terms of this Section 11. The Receiving Party's confidentiality obligations will 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 will be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.

12. Term and Termination.

12.1. Term. These Terms are effective as of the Effective Date and expire on the date of expiration or termination of all Subscription Terms.

12.2. Termination for Cause. Either party may terminate these Terms (including all related Orders) if the other party (a) fails to cure any material breach of these Terms within thirty (30) days after notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).

12.3. Termination for Convenience. You may choose to stop using the Cloud Products and terminate these Terms (including all Orders) at any time for any reason upon written notice to us, but, upon any such termination (i) you will not be entitled to a refund of any pre-paid fees and (ii) if you have not already paid all applicable fees for the then-current Subscription Term or related services period (as applicable), any such fees that are outstanding will become immediately due and payable.

12.4. Effects of Termination. Upon any expiration or termination of these Terms, you must cease using all Cloud Products and delete (or at our request, return) all Confidential Information or other materials of ours in your possession, including on any third-party systems operated on your behalf. You will certify such deletion upon our request. You will not have access to Your Data (and we may delete all of Your Data unless legally prohibited) after expiration or termination of these Terms (or its applicable Subscription Term), so you should make sure to export Your Data using the functionality of the Cloud Products during the applicable Subscription Term. If you terminate these Terms in accordance with Section 12.2 (Termination for Cause), we will refund you any prepaid fees for subscription fees paid for use for after the current Subscription Term. If we terminate these Terms in accordance with Section 12.2 (Termination for Cause), you will pay any unpaid fees covering the remainder of the then-current Subscription Term after the effective date of termination. In no event will termination relieve you of your obligation to pay any fees payable to us for the period prior to the effective date of termination. Except where an exclusive remedy may be specified in these Terms, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under these Terms, by law or otherwise.

12.5. Survival. The following provisions will survive any termination or expiration of these Terms: Sections 3.3 (Restrictions), 5.3 (Your Indemnity), 7.4 (Payment), 9 (Evaluations, trials, and betas) (disclaimers and use restrictions only), 10 (IP Rights in the Cloud Products and Feedback), 11 (Confidentiality), 12 (Term and Termination), 13.4 (Warranty Disclaimer), 14 (Limitations of Liability), 16 (Dispute Resolution) and 19 (General Provisions).

13. Warranties and Disclaimer.

13.1. Mutual Warranties. Each party represents and warrants that it has the legal power and authority to enter into these Terms.

13.2. Our Warranties. We warrant, for your benefit only, that we use commercially reasonable efforts to prevent introduction of viruses, Trojan horses or similar harmful materials into the Cloud Products (but we are not responsible for harmful materials submitted by you or End Users) (the “Performance Warranty”).

13.3. Warranty Remedy. We will use commercially reasonable efforts, at no charge to you, to correct reported non-conformities with the Performance Warranty. If we determine corrections to be impracticable, either party may terminate the applicable Subscription Term. In this case, you will receive a refund of any fees you have pre-paid for use of the Cloud Product for after the applicable Subscription Term. The Performance Warranty will not apply: (i) unless you make a claim within thirty (30) days of the date on which you first noticed the non-conformity, (ii) if the non-conformity was caused by misuse, unauthorized modifications or third-party products, software, services or equipment or (iii) to No-Charge Products. Our sole liability, and your sole and exclusive remedy, for any breach of the Performance Warranty are set forth in this Section 13.

13.4. WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 13, ALL CLOUD PRODUCTS, SUPPORT AND ADDITIONAL SERVICES ARE PROVIDED “AS IS,” AND WE AND OUR SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED OR STATUTORY. WITHOUT LIMITING OUR EXPRESS OBLIGATIONS IN THESE TERMS, WE DO NOT WARRANT THAT YOUR USE OF THE CLOUD PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE, THAT WE WILL REVIEW YOUR DATA FOR ACCURACY OR THAT WE WILL PRESERVE OR MAINTAIN YOUR DATA WITHOUT LOSS. YOU UNDERSTAND THAT USE OF THE CLOUD PRODUCTS NECESSARILY INVOLVES TRANSMISSION OF YOUR DATA OVER NETWORKS THAT WE DO NOT OWN, OPERATE OR CONTROL, AND WE ARE NOT RESPONSIBLE FOR ANY OF YOUR DATA 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. WE WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE OUR REASONABLE CONTROL. YOU MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.

14. Limitation of Liability.

14.1. Consequential Damages Waiver. EXCEPT FOR EXCLUDED CLAIMS (AS DEFINED BELOW), NEITHER PARTY (NOR ITS SUPPLIERS) WILL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. 

14.2. Liability Cap. EXCEPT FOR EXCLUDED CLAIMS, EACH PARTY’S AND ITS SUPPLIERS’ AGGREGATE LIABILITY TO THE OTHER ARISING OUT OF OR RELATED TO THESE TERMS WILL NOT EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE BY YOU TO US UNDER THESE TERMS IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM.

14.3. Excluded Claims. “Excluded Claims” means (1) amounts owed by you under any Orders, (2) either party’s express indemnification obligations in these Terms, and (3) your breach of Section 3.3 (Restrictions).

14.4. Nature of Claims and Failure of Essential Purpose. The parties agree that the waivers and limitations specified in this Section 14 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in these Terms is found to have failed of its essential purpose.

15. Publicity Rights. We may identify you as an WriterStat customer in our promotional materials. We will promptly stop doing so upon your request sent to us through the specific Cloud Product Info/Help area or to the email provided in your Welcome and Login Info emails. 

16. Dispute Resolution. 

16.1. Informal Resolution. In the event of any controversy or claim arising out of or relating to these Terms, the parties will consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach settlement within a period of sixty (60) days, either party may pursue relief as may be available under these Terms pursuant to Section 16.2 (Governing Law; Jurisdiction). All negotiations pursuant to this Section 16.1 will be confidential and treated as compromise and settlement negotiations for purposes of all rules and codes of evidence of applicable legislation and jurisdictions.

16.2. Governing Law; Jurisdiction. These Terms will be governed by and construed in accordance with the applicable laws of the State of California, USA, without giving effect to the principles of that State relating to conflicts of laws. Each party irrevocably agrees that any legal action, suit or proceeding arising out of or related to these Terms must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of, the State or Federal court in San Francisco, California, USA, and each party irrevocably submits to the sole and exclusive personal jurisdiction of the courts in San Francisco, California, USA, generally and unconditionally, with respect to any action, suit or proceeding brought by it or against it by the other party. In any action or proceeding to enforce a party’s rights under these Terms, the prevailing party will be entitled to recover its reasonable costs and attorneys’ fees.

16.3. Injunctive Relief; Enforcement. Notwithstanding the provisions of Section 16.1 (Informal Resolution) and 16.2 (Governing Law; Jurisdiction), nothing in these Terms will prevent us from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.

16.4. Exclusion of UN Convention and UCITA. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to these Terms. The Uniform Computer Information Transactions Act (UCITA) will not apply to these Terms regardless of when or where adopted.

17. Changes to these Terms. We may modify the terms and conditions of these Terms (including Our Policies) from time to time, with notice to you in accordance with Section 19.1 (Notices) or by posting the modified Terms on our website. Together with notice, we will specify the effective date of the modifications.

17.1. No-Charge Products. You must accept the modifications to continue using the No-Charge Products. If you object to the modifications, your exclusive remedy is to cease using the No-Charge Products. You agree that any Cloud Product that was not charged subscription renewal fees to you at the end of it's original subscription period and that we allowed you to continue to use will be considered a No-Charge Product by you during subsequent use by you and under these Terms and subject to these Terms as a No-Charge Product until we change its status to you.

17.2. Paid Subscriptions. Except as otherwise indicated below, modifications to these Terms will take effect at the next renewal of your Subscription Term and will automatically apply as of the renewal date unless you elect not to renew pursuant to Section 7.2 (Renewals). Notwithstanding the foregoing, in some cases (e.g., to address compliance with Laws, or as necessary for new features) we may specify that such modifications become effective during your then-current Subscription Term. If the effective date of such modifications is during your then-current Subscription Term and you object to the modifications, then (as your exclusive remedy) you may terminate your affected Orders upon notice to us, and we will refund you any fees you have pre-paid for use of the affected Cloud Products for the terminated portion after the applicable Subscription Term. To exercise this right, you must provide us with notice of your objection and termination within thirty (30) days of us providing notice of the modifications. For the avoidance of doubt, any Order is subject to the version of these Terms currently in effect.

17.3. Our Policies. We may modify Our Policies to take effect during your then-current Subscription Term in order to respond to changes in our products, our business, or Laws. In this case, unless required by Laws, we agree not to make modifications to Our Policies that, considered as a whole, would substantially diminish our obligations during your then-current Subscription Term. Modifications to Our Policies will take effect automatically as of the effective date specified for the updated policies.

18. Changes to the Cloud Products. You acknowledge that the Cloud Products are on-line, subscription-based products, and that in order to provide improved customer experience we may make changes to the Cloud Products, and we may update the applicable Documentation accordingly. Subject to our obligation to provide Cloud Products and Additional Services under existing Orders, we can discontinue any Cloud Products, any Additional Services, or any portion or feature of any Cloud Products for any reason at any time without liability to you.

19. General Provisions.

19.1. Notices. Any notice under these Terms must be given in writing. We may provide notice to you through your Notification Email Address, your account or in-product notifications or on our website or on ourTwitter page. You agree that any electronic communication will satisfy any applicable legal communication requirements, including that such communications be in writing. Any notice to you will be deemed given upon the first business day after we send it. You will provide notice to us through the specific Cloud Product Info/Help area or to the email provided in your Welcome and Login Info emails. Your notices to us will only be deemed given upon receipt of a return email by us to you to your notice to us.

19.2. Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under these Terms (except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.

19.3. Assignment. You may not assign or transfer these Terms without our prior written consent. As an exception to the foregoing, you may assign these Terms in their entirety (including all Orders) to your successor resulting from a merger, acquisition, or sale of all or substantially all of your assets or voting securities, provided that you provide us with prompt written notice of the assignment and the assignee agrees in writing to assume all of your obligations under these Terms and you receive written agreement for such assignment from us. Any attempt by you to transfer or assign these Terms except as expressly authorized above will be null and void. We may assign our rights and obligations under these Terms (in whole or in part) without your consent. We may also permit our Affiliates, agents and contractors to exercise our rights or perform our obligations under these Terms, in which case we will remain responsible for their compliance with these Terms. Subject to the foregoing, these Terms will inure to the parties’ permitted successors and assigns.

19.4. Entire Agreement. These Terms are the entire agreement between you and us relating to the Cloud Products and any other subject matter covered by these Terms, and supersede all prior or contemporaneous oral or written communications, proposals and representations between you and us with respect to the Cloud Products or any other subject matter covered by these Terms. No provision of any purchase order or other business form employed by you will supersede or supplement the terms and conditions of these Terms, and any such document relating to these Terms will be for administrative purposes only and will have no legal effect.

19.5. Conflicts. In event of any conflict between the main body of these Terms and either Our Policies or Product-Specific Terms, Our Policies or Product-Specific Terms (as applicable) will control with respect to their subject matter.

19.6. Waivers; Modifications. No failure or delay by the injured party to these Terms in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder at law or equity. Except as set forth in Section 17 (Changes to these Terms), any amendments or modifications to these Terms must be executed in writing by an authorized representative of each party.

19.7. Interpretation. As used herein, “including” (and its variants) means “including without limitation” (and its variants). Headings are for convenience only. If any provision of these Terms is held to be void, invalid, unenforceable or illegal, the other provisions will continue in full force and effect.

19.8. Independent Contractors. The parties are independent contractors. These Terms will not be construed as constituting either party as a partner of the other or to create any other form of legal association that would give either party the express or implied right, power or authority to create any duty or obligation of the other party.

20. Definitions. Certain capitalized terms are defined in this Section 20, and others are defined contextually in these Terms.

“Additional Services” means Technical Account Manager (TAM) services, premier or priority support or other services related to the Cloud Products we provide to you, as identified in an Order. For the avoidance of doubt, Additional Services do not include the standard level of support included in your subscription.

“Administrators” mean the personnel designated by you who administer the Cloud Products to End Users on your behalf.

“Affiliate” means an entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party, where “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of greater than 50% of the voting equity securities or other equivalent voting interests of the entity.

“Cloud Products” means our hosted or cloud-based solutions (currently designated as “Cloud” deployments), including any client software we provide as part of the Cloud Products.

“Documentation” means our standard published documentation for the Cloud Products, currently located in each Cloud Product.

“End User” means an individual you or an Affiliate permits or invites to use the Cloud Products. For the avoidance of doubt:  (a) individuals invited by your End Users, (b) individuals under managed accounts, and (c) individuals interacting with a Cloud Product as your customer are also considered End Users.

“End User Account” means an account established by you or an End User to enable the End User to use or access a Cloud Product.

“Feedback” means comments, questions, ideas, suggestions or other feedback relating to the Cloud Products, Support or Additional Services.

“Laws” means all applicable local, state, federal and international laws, regulations and conventions, including those related to data privacy and data transfer, international communications and the exportation of technical or personal data.

“Notification Email Address” means the email address(es) you used to register for a Cloud Product account or otherwise sign up for a Cloud Product. It is your responsibility to keep your email address(es) valid and current so that we are able to send notices, statements, and other information to you.

“Order” means WriterStat’s applicable online order page(s), flows, in-product screens or other WriterStat-approved ordering document or process describing the products and services you are ordering from us and, as applicable, their permitted scope of use. As applicable, the Order will identify: (i) the Cloud Products, (ii) the number of End Users, Subscription Term, domain(s) associated with your use of Cloud Products, storage capacity or limits, or other scope of use parameters and (iii) (for paid Orders) the amount or rate you will be charged, the billing and renewal terms, applicable currency, and form of payment. Orders may also include Additional Services and No-Charge Products.

“Our Deliverables” means any materials, deliverables, modifications, derivative works or developments that we provide in connection with any Additional Services.

“Our Policies” means our Privacy Policy and (unless specified) any other policies or terms referenced in these Terms.

“Our Technology” means the Cloud Products (including all No-Charge Products), Our Deliverables, their “look and feel”, any and all related or underlying technology and any modifications or derivative works of the foregoing, including as they may incorporate Feedback.

“PCI DSS” means the Payment Card Industry Data Security Standards.

“PO” means a purchase order.

“Product-Specific Terms” means additional terms that we may display and apply to certain Cloud Products and Additional Services.

“Subscription Term” means your permitted subscription period for a Cloud Product, as set forth in the applicable Order.

“Support” means support for the Cloud Products, (to the extent applicable). Your Support level will be specified in the applicable Order and on our website.

“Your Data” means any data, content, code, video, images or other materials of any type that you (including any of your End Users) submit to Cloud Products. In this context, “submit” (and any similar term) includes submitting, uploading, transmitting or otherwise making available Your Data to or through the Cloud Products.

“Your Materials” means your materials, systems, personnel or other resources.