Terms of Service
These Terms are between Cultivate Technology Inc. and you, either individually, or on behalf of your employer or any other entity which you represent (“you” or “your”). If you are accessing, registering, or using the Products on behalf of your employer or another entity, you hereby represent that (i) you have legal authority to bind your employer or such entity to these Terms; and (ii) after reading and understanding these Terms, you agree to these Terms on behalf of your employer or such entity, and these Terms shall bind your employer or such entity. You and Cultivate may be referred to as a “party” or “parties” herein.
You signify your consent to these Terms by: (i) executing an Order Form that references these Terms (ii) clicking on a button or checkbox for the acceptance of these Terms; or (iii) registering to, using, or accessing the Product, whichever is earlier (the “Effective date”).
If you do not agree to comply with and be bound by these Terms, or do not have authority to bind your employer or such other entity, do not accept these Terms and do not access or use the Products.
If your organization has a separate contract for a “self-hosted” version of Cultivate’s Software and not the Products herein, then (i) Cultivate gives you a limited, revocable, non-exclusive, nontransferable and non-sublicensable right to use the Products for the sole purpose of enabling you to use and enjoy the benefit of Cultivate’s Software, consistent with any use limitations in any related Order Form and (ii) these Terms will govern your use of the Products to the extent not in conflict by that contract.
To use the Products, you must be and represent and warrant that you are at least 16 years of age, competent, and have the power and authority to agree to these Terms.
The following words (whether used in the singular or plural) used in these Terms have the respective meanings set forth below:
“Affiliate” means an entity that a party directly or indirectly controls, is controlled by, or is under common control with such party.
“Documentation” means the help materials, including technical specifications, describing functionality or pricing of the Product provided by Cultivate.
“Order Form” means an ordering form or product menu that contains Product and transaction specific terms, references these Terms, and has been mutually executed.
“Paid Products” means Products or Services that are made available to you to access and use for a fee.
“Product” means Cultivate’s Software or Service and related services.
“Product Term” means the permitted term during which you are authorized to use the Product pursuant to an Order Form.
“Service” means Cultivate’s hosted service available at its websites, mobile application, or other properties owned or operated by Cultivate.
“Software” means Cultivate’s software program(s), which also includes any proprietary third-party software, or “open source” software or components not owned or developed by Cultivate that is embedded in the software.
“Usage Data” means anonymous data derived from your use of the Product.
“User” means a Product user that is (i) associated with an email address that is owned or controlled by you or (ii) otherwise controlled by or operating on behalf of you.
“Your Data” means all data either provided by you or entered, collected, or generated on your behalf.
“Your Environment” means the computing environment (including all hardware, software, electrical and other physical requirements) separately provided, prepared, and maintained by you for the access to and use of the Product.
2.1. Products. Subject to your compliance these Terms and the Order Form, Cultivate grants to you a limited, revocable, non-exclusive, nontransferable, and non-sublicensable right to access and use (and/or license to install, to the extent the Order Form provides you a Product license) the Product solely for internal business purposes. You may permit your Affiliates to use the Product and Documentation solely on behalf of and for the benefit of you or your Affiliates, provided that (i) you are responsible for the compliance of such Affiliates with these Terms and (ii) references to you shall include your applicable Affiliate. You are responsible for your User’s compliance with these Terms. You are responsible for your Environment. Cultivate may add, modify, or discontinue any feature, functionality, or any other tool within the Products.
2.2. Restrictions and Acceptable Use. Except as otherwise expressly set forth in these Terms, you may not, nor permit any third party to: (a) translate, disclose, modify, adapt, or create any derivative works based on the Product; (b) market, sell, sublicense, use, distribute, publish, display, reproduce, rent, lease, loan, assign, provide access or otherwise transfer the Product to a third party; (c) decompile, disassemble, reverse engineer, or otherwise attempt to derive source code from the Product (except to the extent expressly permitted by applicable law, and then only upon advance notice to Cultivate); (d) operate the Product for the benefit of any third party; (e) remove or obscure any product identification or proprietary notices contained in the Product; (f) publicly disseminate information regarding the performance of the Product; (g) submit to the Product any material that contains sensitive or “special categories” of personal data, such as financial or health information or (h) breach or circumvent any security measures, or access non-public areas of the Product.
Further, you may not, nor permit any third party to: (i) introduce viruses or other harmful components to the Product; (j) access or use the Product for competitive purposes; (k) interfere with the integrity or performance of the Product; (l) use the Product to advocate hatred against any person or group of people based on their race, religion, ethnicity, sex, gender identity, sexual orientation, disability or impairment; (m) use the Product to transmit material that is fraudulent, indecent, defamatory or misleading; (n) violate or infringe proprietary, privacy or other rights of any person (o) circumvent contractual usage restrictions.
2.3. Third-Party Components. The publicly available open-source license terms governing the open-source software components within the Product shall take precedence over these Terms with respect to such open-source software to the extent that the Agreement imposes greater restrictions on you than those allowed by the respective open-source license. The Product also includes other components that are licensed commercially from third parties which may be used only in conjunction with, as part of, and through the Product as provided by Cultivate.
2.4 Your Instructions. You instruct, and grant Cultivate a non-exclusive, worldwide right to process, share, and otherwise use your Data to the extent necessary (i) to provide, maintain, and improve the Product and related services (ii) to address emergencies (iii) as required by law or (iv) as otherwise permitted by you or these Terms. Cultivate may create and derive from processing under the Agreement aggregated data that does not identify you and use or share such data to improve Cultivate’s products and services and for its other lawful purposes.
2.5 Your Data. Cultivate is as a “processor” or “service provider” of personal data contained in your Data. You represent and warrant that (i) Cultivate’s processing of your Data in accordance with your instructions will not violate any law or infringe any intellectual property, proprietary, privacy, or other right of any person and (ii) you have given all required notices and obtained all required consents and rights from all relevant data subjects and any other party as may be required for processing under these Terms. Cultivate doesn’t verify or endorse your Data. Except for Cultivate’s express obligations as set forth in these Terms, Cultivate assumes no responsibility or liability for your Data, and you shall be solely responsible for the consequences of using or sharing it.
2.6 Your Accounts. You (i) must provide and maintain true, current, and complete information (ii) are responsible for keeping login details secure and are responsible for all activities that occur in your account and (iv) will promptly notify Cultivate of any unauthorized use of the Product or your account.
3.1 Your Property. Your Data and all intellectual property rights therein belong to you.
3.2 Cultivate Property. The Product (including but not limited to logo, design, text, software, technical specifications or drawings, configurations, graphics, other files, and their selection and arrangement), Documentation, Usage Data, and other Cultivate Confidential Information, and all modifications, enhancements, or derivative works of, and intellectual property rights in the foregoing belong to Cultivate. This includes any learnings, insights, ideas, or improvements related to the Product as a result of your use or operation thereof, and you hereby assign to Cultivate any rights, title, or interest you may have or acquire to the foregoing. Cultivate may freely exploit comments, questions, ideas, or suggestions provided by you relating to the Product, without any obligation, royalty, or restriction. No title to or ownership of any proprietary rights in any of the foregoing is transferred to you pursuant to these Terms.
4. THIRD-PARTY PRODUCTS. Your use of any other third-party products or services (“Third-Party Products”) whether or not made available by Cultivate (such as information about or links to third-party products or services), is subject to a separate agreement between you and the provider of Third-Party Products. You are solely responsible for any access to or use of your Data by Third-Party Products.
5. PAYMENT; TAXES; RENEWALS. If you are ordering or subscribing to a Paid Product, all fees in the Order Form (i) shall be paid by you within thirty (30) days from the date of the invoice; (ii) are exclusive of any taxes, and you are responsible for payment of all taxes excluding taxes based solely on Cultivate’s income; and (iii) shall be paid by you in the currency Cultivate quoted at the time of purchase. You are responsible for all incidental charges (for example, data charges and currency exchange settlements). Unpaid amounts owed to Cultivate may be subject to interest at the lesser of one and one-half percent (1.5%) per month or the maximum permitted by law, plus collection costs.
Order Forms will automatically renew for terms equal in length to the original Product Term, until cancelled by you at least thirty (30) days before the end of the Product Term, by providing written notice of such cancellation to firstname.lastname@example.org (with cancellation confirmation from a Cultivate representative) or via your account settings page (if this option is available to you). Unless expressly permitted herein, no refunds for previously paid amounts will be issued. Cultivate reserves the right to increase prices for subsequent Product Terms.
6. SUPPORT. Cultivate will provide you with reasonable support services in accordance with Cultivate’s standard support offering. If there is an Order Form(s) for Paid Products in effect, then you shall have access to Cultivate via telephone, email and/or web support services, Monday-Friday, 9am-5pm Pacific.
- TERM AND TERMINATION
7.1. Term. These Terms commence on the Effective Date and continue until the end of the Product Term as specified in such Order Form or as set forth herein.
7.2. Termination for Cause. Either party may terminate these Terms (or affected Order Form) (a) upon the other party’s material breach that remains uncured for thirty (30) days following notice of material breach, except that termination will take effect on notice upon a breach of Section 11 (“Confidential Information”); or (b) immediately if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors (and not dismissed within sixty (60) days thereafter).
7.3. Effect of Termination. Upon termination of these Terms by you pursuant to Section 7.2 (“Termination for Cause”), you are entitled to a prorated refund of prepaid fees relating to the Product for the remaining period in the applicable Product Term. Upon termination of these Terms by Cultivate pursuant to Section 7.2 (“Termination for Cause”), all fees relating to the applicable Product Term will be accelerated and immediately due and payable.
Upon termination of these Terms, all rights granted to you will terminate. The following will survive termination: any payment obligations due by you, as well as the provisions of Sections 2.2 (“Restrictions and Acceptable Use”), 3 (“Ownership”), 4 (“Third-Party Products”), 5 (“Payment; Taxes”), 7.3 (“Effect of Termination”), 8.2 (“Warranty Disclaimer”), 9 (“Limitation of Liability”), 10 (“Indemnification”), 11 (“Confidential Information”), and 13 (“General Terms”).
7.4 Free Products. Cultivate may make Products available to you on a free or no-fee basis as described in an Order Form or other Documentation, and subject to these Terms. You may terminate your use and access to free Products at any time. Cultivate may modify, discontinue, or terminate your access to free Products at any time, without liability to you or any third party. You are solely responsible for exporting your Data from free Products prior to termination. In the event of a conflict between this section and any other portion of these Terms, this section shall control.
- WARRANTY DISCLAIMER
EXCEPT FOR ANY WARRANTIES SET FORTH IN HEREIN, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE PRODUCT, DOCUMENTATION AND CULTIVATE’S CONFIDENTIAL INFORMATION ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, AND CULTIVATE MAKES NO WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, THOSE ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE, AND ALL SUCH WARRANTIES ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. CULTIVATE DOES NOT WARRANT THAT PRODUCT WILL BE ERROR FREE OR FREE OF HARMFUL COMPONENTS OR THAT USE OF THE PRODUCT WILL BE SECURE OR UNINTERRUPTED.
- LIMITATION OF LIABILITY
9.1. Liability Cap.
TO THE EXTENT NOT PROHIBITED BY LAW:
EXCEPT FOR FRAUD, OBLIGATIONS UNDER SECTIONS 10 (“INDEMNIFICATION”) OR YOUR LIABILITY FOR PAYMENT OF FEES: IN NO EVENT SHALL YOU OR CULTIVATE’S TOTAL AGGREGATE LIABILITY EXCEED THE GREATER OF: THE MOST RECENT MONTHLY OR YEARLY FEE THAT YOU PAID FOR THAT PRODUCT; OR (B) ONE HUNDRED DOLLARS ($100 U.S.D.).
IN NO EVENT SHALL YOU OR CULTIVATE AND ITS AFFILIATES, RESELLERS, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR LICENSORS BE LIABLE FOR: ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING LOST PROFITS, LOSS OF USE, BUSINESS INTERRUPTIONS, LOSS OF DATA, REVENUE, GOODWILL, PRODUCTION, ANTICIPATED SAVINGS, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN CONNECTION WITH OR ARISING OUT OF THE PERFORMANCE OF OR FAILURE TO PERFORM THESE TERMS, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.2 Limitations Fair, Reasonable. YOU AND CULTIVATE ACKNOWLEDGE THAT LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 9 (“LIMITATION OF LIABILITY”) REFLECT THE ALLOCATION OF RISK BETWEEN YOU AND CULTIVATE, AND THAT IN THE ABSENCE OF SUCH LIMITATIONS OF LIABILITY, THE ECONOMIC TERMS OF THESE TERMS WOULD BE SIGNIFICANTLY DIFFERENT.
10.1. Indemnification. You will defend Cultivate against any cost, loss, damage, or other liability arising from any demand or claim that any of Your Data or other information provided by you, or your use of the Products: (a) infringes a registered patent, trademark, copyright, or other intellectual property right of a third party, or misappropriates a trade secret (to the extent that such misappropriation is not the result of Cultivate’s actions); or (b) violates applicable law or these Terms.
10.2. Excluded Claims. Cultivate has no obligation and no liability to the extent any claims or demands are based on: (a) any modification of the Product that is not performed by or on behalf of Cultivate, or was performed in compliance with your specifications; (b) use of the Product with your Data or Third-Party Products where there would be no claim otherwise; (c) unauthorized use of the Product; (d) any third-party components in the Product; (e) use of any older version of the Product when a newer version available to you would have avoided the claim; (f) open source software, freeware, or similar products; or (g) any Products provided on a no-charge, no-fee, free, beta or evaluation basis.
10.3. Remedies. If your use of the Product is or may be enjoined, or if Cultivate determines such actions are necessary, Cultivate may, at its option: (i) procure for you the right to use the Product in accordance with these Terms; (ii) replace or modify the Product to make it noninfringing; or (iii) terminate your right to use the Product and discontinue the related support, and upon your deletion of and/or ceasing access to the Product as applicable, refund prorated pre-paid fees for the remainder of the applicable Product Term.
- CONFIDENTIAL INFORMATION
(a) “Confidential Information” means information and/or materials provided by one party (“Discloser”) to the other party (“Recipient”) which is identified as confidential at the time of disclosure or should be reasonably known by the Recipient to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. The following information is considered Confidential Information of Cultivate whether or not marked or identified as such: these Terms, the Product, Documentation, pricing information, any Cultivate technology, product roadmap or strategic marketing plans, non-public material relating to the Product. Except as expressly authorized herein, the Recipient shall (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.
(b) Recipient will maintain commercially reasonable physical, technical, and administrative security measures designed to protect Confidential Information within its control from unauthorized access, destruction, use, modification, or disclosure. Cultivate’s security measures are at least as protective as those described at https://cultivate.com/trust-and-security/.
(c) The Recipient may disclose Confidential Information to its employees, agents, contractors, and other representatives having a legitimate need to know, provided that such representatives are bound to confidentiality obligations no less protective than these Terms and that the Recipient remains responsible for compliance by any such representative with these Terms.
(d) The Recipient’s confidentiality obligations shall not apply to information that the Recipient 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 Recipient; (iii) is rightfully obtained by the Recipient from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Recipient.
(e) The Recipient may make disclosures to the extent required by law or court order, provided the Recipient notifies the Discloser (where legally permissible) in advance and cooperates in any effort to obtain confidential treatment. The Recipient acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone may not be a sufficient remedy, and therefore that upon any disclosure by the Recipient, the Discloser is entitled to seek appropriate equitable relief in addition to other legal remedies.
(f) The confidentiality obligations set forth herein will survive for so long as these Terms are in effect between you and Cultivate and for five years thereafter, except as they pertain to trade secrets, which will survive termination of these Terms for so long as they are protected as trade secrets under applicable law.
(g) Within thirty (30) days after termination of these Terms, the Recipient shall return or destroy all Confidential Information and materials containing any Confidential Information of the Discloser, subject to commercially reasonable backup procedures.
12. Laws. You and Cultivate will comply with all applicable domestic and international laws, export laws and regulations. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a terrorist-supporting country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
- GENERAL TERMS
13.1. Notice. Notice to a party will be sent (i) by email (to Cultivate at the email address below, and to you at the email address listed on the Order Form) or (ii) first-class mail, overnight courier or prepaid post (to Cultivate at the address as identified on the first page of these Terms and to you at the address listed on the Order Form) and will be deemed given seventy-two (72) hours after mailing or upon confirmed delivery or receipt, whichever is sooner. For mailed notices, you will address notices to Cultivate Legal Department, with a copy to email@example.com.
13.2. Waivers. No waiver will be implied from conduct or failure to enforce or exercise rights under these Terms, nor will any waiver be effective unless in writing signed by a duly authorized representative on behalf of the party claimed to have waived.
13.3. Severability. If any provision of these Terms is adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that these Terms shall otherwise remain in effect.
13.4. Entire Agreement; Interpretation; Counterparts. These Terms are the complete and exclusive statement of the mutual understanding of you and Cultivate and supersedes all previous written and oral agreements and communications relating to the subject matter of these Terms. Headings are for convenience only and “including”, “e.g.”, and similar terms are construed without limitation. Conflicting terms are resolved in the following order: (a) an Order Form (except as otherwise expressed in these Terms); (b) a mutually executed data protection addendum (c) these Terms and (d) any other exhibit or addendum. These Terms may be physically and/or electronically executed, in counterparts, which taken together shall form one binding legal instrument.
13.5. Independent Contractors. You and Cultivate are independent contractors. No partnership, joint venture, employment, franchise, or agency is created between you and Cultivate. Neither party has the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
13.6 Publicity. Cultivate may identify your organization (by name and logo) as a customer in Cultivate’s promotional materials. Cultivate will promptly stop upon your request sent to firstname.lastname@example.org.
13.7. Governing Law; Jurisdiction; Venue. These Terms are governed by the laws of the state of California, USA, without regard to conflicts of law provisions thereof. Claims arising out of or in connection with these Terms are subject to the exclusive jurisdiction and venue of the state and federal courts located in San Francisco, California, USA. Neither the United Nations Convention of Contracts for the International Sale of Goods nor the Uniform Computer Information Transactions Act will apply to these Terms. Regardless, Cultivate can apply for injunctive remedies in any jurisdiction. The foregoing doesn’t override those laws in countries (including those in the European Union) that require agreements to be governed by the local laws of the consumer’s country, or for disputes to be handled therein.
To the extent not in conflict with applicable law, you may only resolve disputes with Cultivate on an individual basis and may not bring a claim or proceed in a group arbitration proceeding as a plaintiff or a class member in a class, consolidated, or representative action.
13.8. Assignment. These Terms are not assignable by you without Cultivate’s prior written consent. Cultivate may assign its rights and obligations under these Terms without your consent.
13.9 Modifications to These Terms. Cultivate may modify these Terms at any time, at Cultivate’s sole discretion. Cultivate will notify you either by posting the modified Terms on the Products or through other communications. If you continue to use the Products after Cultivate modifies the Terms, you are indicating that you agree to the modified Terms. If there is an Order Form(s) for Paid Products in effect, modifications of these Terms that effect Paid Products will take effect at the next renewal of your Paid Product Term.
13.10 Government Terms. If you are a U.S. government entity or if these Terms otherwise becomes subject to the Federal Acquisition Regulations (FAR), you acknowledge that elements of the Cultivate Product constitute software and documentation and are provided as “Commercial Items” as defined at 48 C.F.R. 2.101, and are being licensed to U.S. government User as commercial computer software subject to the restricted rights described in 48 C.F.R. 2.101 and 12.212.
Talk to us.
We welcome your comments and questions regarding our Terms. Please contact us at:
Cultivate Technology Inc.
326 Ritch Street, San Francisco, CA 94107 or
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