TERMS OF SERVICE
Restrictions on Use:
Customer covenants that it will not, in connection with the use of the Tethr Service:
- use the Tethr Service in any illegal or unlawful manner, or for any illegal or unlawful purpose, or to stalk, harass, or harm another individual;
- perform any act which is intended to and/or actually does harm to Tethr, the Tethr Service, or any of Tethr’s customers;
- imply or state, directly or indirectly, that Customer is affiliated with or endorsed by Tethr without Tethr’s express written permission;
- send unsolicited messages, junk mail or SPAM, using the Tethr Service;
- share the Customer’s password or let any third party access Customer’s Account, or take any other action which would affect the security of the Customer’s Account;
- attempt to or actually override any security component included in the Tethr Services; or, publish, transmit, or disseminate any Content which is
- pornographic, sexually explicit or violent,
- illegal (including without limitation copyrighted material and material which infringes or has the potential to infringe the Intellectual Property Rights of a third party,
- slanderous or libelous,
- a breach of a third party’s privacy rights.
Tethr will not review or screen Content or Apps on a regular basis for compliance with this Agreement or applicable law, and Tethr shall have no obligation to do so; provided, however, that in addition to any other rights Tethr may have, Tethr reserves the right to suspend and/or terminate Customer’s access to and/or use of the Tethr Service, or any particular Content or App, if Tethr determines, in its sole judgment and discretion, that such suspension or termination is necessary to comply with the foregoing restrictions, applicable law, and/or to prevent significant harm to the Tethr Service or any end user, and in such event, Tethr shall use commercially reasonable efforts to suspend or terminate only that portion of the Tethr Service or any particular Content or App as Tethr deems reasonably necessary to prevent the occurrence or continuation of such violation and/or harm.
At Tethr, our goal is to provide the highest quality service for the best value. The Tethr Usage Policy defines what constitutes an acceptable volume of use of the Tethr Service. Tethr establishes normal usage profiles for users of the Tethr Service across the industries where it operates. User profiles may be monitored to identify unusual patterns inconsistent with normal, individual use. Tethr may, at its sole discretion, suspend Customer’s right to use the Tethr Service, and/or terminate this Agreement in its entirety (and, accordingly, Customer’s right to use the Tethr Service), if Tethr determines that Customer usage varies substantially from normal use, and/or there is an unusual spike or increase in Customer use of the Tethr Service for which there is reason to believe such traffic or use is fraudulent or negatively impacting the operating capability of the Tethr Service. Tethr will use good faith efforts to notify the Customer in the event of such suspension and/or termination.
Customer shall ensure that all of Customer’s end users which use or access the Tethr Service shall, as a condition of any such use or access, agree to terms which comply with the terms of this Agreement, and which are no less restrictive with respect to the use of the Tethr Service than those set forth in this Agreement. If Tethr determines in its sole discretion that a Customer has failed to comply with the terms of this Section 3(c), Tethr may, in addition to any other available rights and remedies, suspend and/or terminate this Agreement in its entirety (and, accordingly, Customer’s and end users’ right to use the Tethr Service).
FEES AND PAYMENT FOR PURCHASED SERVICES
Customer will pay all fees specified in Service Order Forms or Invoices. Except as otherwise specified herein or in an Order Form,
- fees are based on Tethr Services purchased and not actual usage,
- payment obligations are non-cancelable and fees paid are non-refundable, and
- quantities purchased cannot be decreased during the relevant subscription term.
Invoicing and Payment:
Customer will provide Tethr with valid form of payment acceptable to Tethr. If Customer provides credit card information to Tethr, Customer authorizes Tethr to charge such credit card for all purchased services listed in the Quote for the Initial Term and Renewal Term(s) as set forth in Section 4(b). Such charges shall be made in advance, either annually or in accordance with any alternative billing frequency stated in the applicable Quote. Tethr will invoice Customer in advance in accordance with the relevant Quote. Unless otherwise stated in the Quote, invoiced charges are payable upon receipt of the invoice, and shall be due within sixty (30) days thereafter (the “Due Date”). Customer is responsible for providing complete and accurate billing and contact information to Tethr and notifying Tethr of any changes to such information.
If any invoiced amount is not received by Tethr by the Due Date, then without limiting Tethr’s rights or remedies, those unpaid amounts shall accrue interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or
Tethr may condition future subscription renewals and Order Forms on Customer’s agreement to payment Due Dates which are shorter than those specified in Section 5(b).
Suspension of Service and Acceleration:
If any amount owed by Customer under this Agreement is thirty (30) or more days overdue (or 10 or more days overdue in the case of amounts Customer has authorized Tethr to charge to Customer credit card), Tethr may, without limiting other Tethr rights and remedies, accelerate Customer’s unpaid fee obligations under this Agreements so that all such obligations become immediately due and payable, and suspend the Tethr Service to Customer until such amounts are paid in full. Tethr will use reasonable efforts to provide Customer at least ten (10) days’ prior notice that Customer’s account is overdue, in accordance with Section 16, before suspending the Tethr Services.
Tethr fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including for example, value-added sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with Customer purchases hereunder. If Tethr has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section 5(e), Tethr will invoice Customer and Customer will pay that amount unless Customer provides Tethr with a valid tax exemption certificate authorized by the appropriate taxing authority. For the avoidance of doubt, Tethr shall be solely responsible for Taxes assessable against Tethr based on Tethr’s income, property and employees, and Customer shall not withhold or deduct any amounts for same except as required by applicable law.
All payments must be made in the currency of the invoice and are non-refundable.
Customer agrees that Customer purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Tethr regarding future functionality or features.
License to Use the Tethr Service:
Subject to the terms and conditions set forth in this Agreement, Tethr hereby grants Customer a limited, revocable (as set forth in this Agreement), non-transferable, non-exclusive, worldwide license to use the applicable Tethr Service for which Customer has submitted an Order or registered online. All rights not expressly granted to Customer are reserved by Tethr. Except as expressly consented to by Tethr, in writing, Customer shall not:
- sublicense, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Tethr Service or any part thereof, in any way; or
- modify, reverse engineer, decompile, disassemble or make derivative works based upon the Tethr Service, and any and all Tethr software, tools, and trademarks.
License to Content
Customer hereby grants Tethr a limited, revocable (as set forth in this Agreement), non-transferable, non-exclusive, royalty-free, worldwide license to perform all such acts with respect to the Customer’s Content as are necessary for Tethr to provide the Tethr Service in accordance with this Agreement. All rights not expressly granted to Tethr are reserved by Customer.
License to Feedback, Suggestions or Recommendations:
Customer hereby grants Tethr an unlimited, irrevocable, perpetual, transferable, non-exclusive, royalty-free, worldwide license to use and/or incorporate into the Tethr Service any feedback, suggestions and/or recommendations provided to Tethr by Customer regarding the Tethr Service, whether during the Term or otherwise.
Customer agrees not to remove, obscure, or alter any Tethr copyright notice, trademarks, logos, or other proprietary rights notices affixed to or contained within the Tethr Service.
As between the parties, Tethr shall own and retain all right, title and interest in and to the Tethr Service, and all elements thereof (including without limitation any and all Tethr software, tools and trademarks), including without limitation all Intellectual Property Rights therein and relating thereto. “Intellectual Property Rights” means, collectively, all patent rights, copyrights, trade secrets and moral rights; trade names, trademarks, service marks, and companion goodwill; domain names; rights of publicity and rights of privacy; and other similar rights throughout the world, together with all registrations and/or applications for each of the foregoing.
Tethr acknowledges and agrees that as between Tethr and Customer, Customer shall retain all right title and interest in and to the Customer’s software, products and services, subject to Tethr’s underlying rights in and to the Tethr Service and all elements thereof.
REPRESENTATIONS AND WARRANTIES
The Tethr Service. Tethr represents and warrants that it either owns fully and outright or otherwise possesses and has obtained all rights, approvals, licenses, consents and permissions as are necessary to perform its obligations hereunder, exercise its rights hereunder and to grant the licenses granted by it under this Agreement.
Content and Apps. Customer represents and warrants that
- it either owns fully and outright or otherwise possesses and has obtained all rights, approvals, licenses, consents and permissions as are necessary to perform its obligations hereunder, exercise its rights hereunder and to grant the licenses granted by it under this Agreement and
- the Content and the Apps use through the Tethr Service, as enabled by Customer, directly or indirectly, does not, and shall not, infringe, violate or misappropriate any third party’s rights.
Customer agrees to indemnify and hold Tethr and its subsidiaries, affiliates, officers, agents, employees, and licensors harmless from and against any and all claims, demands, lawsuits, actions or other liability (collectively, “Claims”), including reasonable attorneys’ fees, due to or arising out of Customer’s Content, Customer’s use of the Tethr Services, any claim that Customer or Customer’s Content caused damage to a third party, Customer’s violation of this Agreement or any material term hereof, or Customer’s violation of any rights of another, including without limitation any Intellectual Property Rights. In connection with any Claims, pursuant to this Section 10, Tethr will
- give Customer prompt written notice of such claim; and
- cooperate reasonably with Customer (at Customer’s expense) in providing information in connection with Customer’s payment of the defense of such Claim and any losses arising out of such Claim.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, TETHR MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND TO CUSTOMER, EITHER EXPRESS OR IMPLIED, AS TO ANY MATTER INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, WORKMANLIKE QUALITY, NON-INFRINGEMENT, TITLE, SUITABILITY, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE OR THAT THE TETHR SERVICE WILL BE UNINTERRUPTED OR ERROR FREE. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE TETHR SERVICE IS PROVIDED ON AN “AS IS” BASIS ONLY. NO ADVICE OR INFORMATION OBTAINED BY CUSTOMER FROM TETHR SHALL CREATE ANY REPRESENTATION OR WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. IF ANY JURISDICTION DOES NOT ALLOW THE DISCLAIMER OF ANY OF THE ABOVE WARRANTIES, THE SCOPE AND DURATION OF THE APPLICABLE WARRANTY(IES) SHALL BE LIMITED AS REQUIRED BY APPLICABLE LAW.
LIMITATION OF LIABILITY
NEITHER PARTY SHALL BE LIABLE TO THE OTHER UNDER OR IN CONNECTION WIT THE AGREEMENT FOR ANY INDIRECT OR CONSEQUENTIAL LOS OR DAMAGE. THE LIABILITY OF EITHER PARTY TO THE OTHER UNDER OR IN CONJUNCTION WITH THE AGREEMENT SHALL NOT EXCEED 100% OF THE ANNUAL CONTRACT VALUE IN AGGREGATE. THIS CLAUSE SHALL NOT APPLY TO LOSS OR DAMAGE ARISING OUT OF OR IN CONJUNCTION WITH FRAUD, DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE OR TO THE EXTENT THAT LIABILITY CANNOT BE LIMITED OR EXCLUDED BY LAW.
THIRD PARTY SERVICES
Tethr may, from time to time, inform customers of third-party services that can be used by customers in connection with the Tethr Service, including services from companies associated with Tethr’s partner program, and Customer may opt to use these or other third-party services in connection with the Tethr Service. Customer’s use of any third-party service in connection with the Tethr Service, and any terms, conditions, representations and/or warranties associated with such use, are solely between Customer and such third-party service provider. Tethr makes no endorsement, representation or warranty with regard to any such third-party service, or any content or materials used on connection with such third-party service, even if such provider is certified by Tethr or selected as a premier partner (or similar designation) by Tethr. As such, Tethr shall not be responsible or liable to Customer in any manner for any such third-party service. Tethr does not, unless otherwise expressly set forth in writing, provide maintenance or support for third-party services.
Each party agrees not to disclose the other party’s Confidential Information without its prior written consent. “Confidential Information” includes, without limitation:
- all intellectual property;
- financial information (including pricing) and business information; and
- any other information designated in writing as “Confidential”, or which would reasonably be deemed to be confidential in nature. Confidential Information does not include:
- Customer’s Content;
information that has become publicly known through no breach by Customer or Tethr of these confidentiality obligations;
- information that is independently and lawfully developed or obtained without access to Confidential Information, as evidenced in writing;
- information required to be disclosed by law or court order; or
- the fact that Customer is a customer of Tethr.
- Customer’s Content;
Customer authorizes Tethr to identify Customer as a customer when the Quote agreement is signed, unless otherwise outlined in the Quote agreement. Customer shall have the right to identify Tethr as the provider of the Tethr Service, and to use Tethr’s name and/or logo solely in connection with Customer’s use of the Tethr Service.
All notices under this Agreement must be in writing and delivered either by hand, e-mail (with confirmation of receipt), certified mail (return receipt requested, postage pre-paid) or nationally recognized overnight delivery service (all delivery charges pre-paid) and addressed, if to Customer, to the contact identified in Customer’s most recent Quote Agreement and, if to Tethr, to:
PO Box 3096
Salem, VA 24153
MOBILE APPLICATION STORES
Apps leveraging Tethr may be submitted to the Apple® App Store and/or the Google® Play store and such other marketplaces as Tethr may from time to time enable (collectively, the “App Markets”). Customer is solely responsible for submitting all Apps to the App Markets for approval and acceptance. Tethr makes no representation or warranty that the App Markets will accept the submitted App or the extent to which an App will be installed and/or used by end users. Customer is solely responsible for ensuring that it and its Apps comply with the App Markets’ policies, including, without limitation, any obligations regarding privacy and privacy policies, and, in addition to all other disclaimers set forth in this Agreement, Tethr expressly disclaims any responsibility for any failure of any App to comply with the App Markets’ policies.
HIGH RISK USE
Customer acknowledges that Tethr Services are not designed or intended for access and/or use in or during high-risk activities, including but not limited to: medical procedures; on-line control of aircraft, air traffic, aircraft navigation or aircraft communications; or the design, construction, operation or maintenance of any nuclear facility. Customer understands that the Tethr Services do not allow and should not be used for calls to emergency services numbers (e.g., in the United States 911, or in the United Kingdom 999 and 112). Without limiting any other disclaimers set forth in this Agreement, Tethr expressly disclaims any express or implied warranty of fitness for such purposes.
If the law of Customer’s country prohibits Customer, Customer administrators and/or Customer users from using Tethr Service because the Tethr Service is not allowed in the country or countries in which Customer or Customer users are located, Customer and Customer users are prohibited from using the Tethr Service in such circumstances.
Certain Tethr Services provide functionality that allows a Customer to record audio and data shared during collaboration sessions. Customer is solely responsible for complying with all federal, state, and local laws in the relevant jurisdiction when using such recording functionality. Without limiting any other disclaimers set forth in this Agreement, Tethr expressly disclaims any and all liability with respect to Customer recording of audio and/or shared data while using the Tethr Service, and Customer releases and agrees to hold Tethr harmless from and against any damages, or any other consequences or liabilities related to recording, loss or deletion of customer data.
VOICE AND DATA CHARGES; CUSTOMER CONNECTIVITY
Customer is responsible for all fees and charges imposed by Customer’s telephone carriers, wireless providers, and other voice and/or data transmission providers for voice and/or data transmission used to access and use the Tethr Services. If Customer’s broadband connection and/or telephone service fails, or Customer experiences a power failure, the Tethr Services may also cease to function due to reasons outside of Tethr control, and Tethr shall not be liable for, and Customer expressly releases Tethr from any liability, in connection with same.
OPEN SOURCE DISCLOSURE
Tethr acknowledges that it uses certain Open Source Libraries as part of the Tethr Service.
Certain of the Tethr Services will permit Customer to comply with HIPAA/HITECH in connection with such use. As a condition of any use of the Tethr Services under HIPAA/HITECH, Tethr will enter into a separate business associate agreement with the Customer, and in such case Tethr will comply with all business associate obligations under HIPAA/HITECH. In such event, the pricing for the applicable Tethr Services will be modified in accordance with Tethr’s pricing policies then in effect (as such may be amended from time to time).
COPYRIGHT COMPLAINT POLICY
If you believe any Content or other use of the Tethr Services infringes your copyrighted work(s), you may provide a notification of claimed copyright infringement by mail (to Tethr, PO Box 3096, Salem, VA 24153) requesting that the infringing material be removed, or that access to the Tethr Services be blocked. This notice must include:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material. We will need direct URLs to the content/image(s) being referenced.
- Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
- A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
- A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
In addition, if you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the law permits you to send Tethr a counter-notice. Notices and counter-notices must meet statutory requirements imposed by the Digital Millennium Copyright Act (“DMCA”). You acknowledge that if you fail to comply with all of the notice requirements of the DMCA, your notice may not be valid. You may currently find this information at http://www.loc.gov/copyright.
In accordance with the DMCA, Tethr has designated an agent to receive notification of alleged copyright infringement. Any written Notification of Claimed infringement should comply with Title 17, United States Code, Section 512(c)(3)(A) and should be provided in writing to our Designated Agent as follows:
PO Box 3096
Salem, VA 24153