Related to the use of Streamline software
Streamline™ Terms of Service
THE TERMS AND CONDITIONS CONTAINED HEREIN (“AGREEMENT”) APPLY TO ALL USE OF THE HOSTED SERVICES PROVIDED BY DIGITAL DEPLOYMENT, INC. (“STREAMLINE”) TO YOU AND THE ORGANIZATION YOU REPRESENT (TOGETHER, “CUSTOMER”). BY ACCESSING OR USING ANY OF STREAMLINE’S SERVICES OR
SOFTWARE, CUSTOMER AGREES TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. THIS AGREEMENT WILL BE DEEMED EFFECTIVE ON THE DATE IT IS AGREED TO BY CUSTOMER AS PART OF THE ORDER PROCESS – AS DEFINED IN SECTION 1 BELOW) (“EFFECTIVE DATE”). IN THE EVENT THERE IS A SEPARATELY NEGOTIATED AND EXECUTED MASTER AGREEMENT BETWEEN STREAMLINE AND CUSTOMER WITH RESPECT TO PROCUREMENT OF THE SERVICES OR SOFTWARE, SUCH AGREEMENT SHALL CONTROL AND THIS AGREEMENT WILL NOT APPLY.
1. THE SERVICE
1.1. Provision of the Service. Subject to all the terms of this Agreement, Streamline grants Customer the non-sublicensable, non-transferrable, nonexclusive, limited right to remotely access and use the service described in the Order Process (as defined below) and any associated materials provided or made available (e.g. online) by Streamline (such as documentation) (collectively, the “Service”) - but only for Customer’s own business purposes. The “Order Process” is Streamline’s online order process (or a schedule, statement of work and/or other ordering document executed by the parties). All activity under the Agreement shall be strictly in accordance with and subject to Streamline’s applicable usage documentation (if any) (“Documentation”).
1.2. Services Levels. Streamline will use commercially reasonable efforts to ensure the Service is substantially operational on a 24/7 basis (subject to downtime for scheduled maintenance, emergency maintenance, and matters beyond Streamline’s reasonable control).
1.3. General Restrictions. Customer shall not (and shall not allow any third party to): (a) rent, lease, copy, provide access to or sublicense the Service to a third party (except contractors acting on Customer’s behalf – and Customer is fully responsible and liable for their breach of this Agreement); (b) use the Service to help develop any competitive product or service, (c) use the Service for the benefit of any third party, (d) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code to any of any part of the Service, (e) modify or create derivatives of the Service or any other materials provided by Streamline, or (f) remove or obscure any proprietary or other notices contained in the Service or documentation provided by Streamline.
1.4. Customer’s Third-Party Services. The Service will enable Customer to send Customer Data (as defined in Section 2.1 below) to and from different third-party products, services, sources, and destinations (“Third-Party Services”). Customer’s use of any Third-Party Services is subject to Customer’s separate agreement with the provider. Customer is responsible for selecting and configuring the Third-Party Services it chooses to use with the Service and for any exchange of Customer Data it enables through the Service. Notwithstanding anything to the contrary, Streamline is not responsible for any Third-Party Services used by Customer with the Service, their code or technology, or how the providers use or protect Customer Data. For clarity, Streamline has no liability or obligation under the separate agreement between Customer and the applicable third-party provider.
1.5. Feedback. Notwithstanding anything else, Customer grants Streamline a perpetual, irrevocable, royalty free, paid-up, sub-licensable, right and license to use, display, reproduce, distribute and otherwise exploit Feedback for any purposes. Streamline agrees that (i) Customer does not have to provide Feedback, and (ii) all Feedback is provided “AS IS”. “Feedback” means all suggestions for improvement or enhancement, recommendations, comments, opinions or other feedback provided by Customer (whether in oral, electronic or written form) to Streamline for the Service.
2. CUSTOMER DATA
2.2. Security. Streamline will implement and maintain a reasonable information security program with administrative, physical, and technical safeguards designed to help protect the integrity of Customer Data.
2.3. Aggregate and Deidentified Data. Streamline will have an irrevocable, perpetual right to retain and internally use any Customer Data in an aggregated and deidentified form to internally improve its products and services (such as training algorithms).
3. CUSTOMER CONTENT.
3.1. Customer’s Own Content. Customer is responsible for all materials, information, photos, and content ("Content") uploaded, posted or stored through its use of the Service. Customer grants Streamline a worldwide, royalty-free, non-exclusive license to host, display, and use any Content provided through Customer’s use of the Service. If Customer shares Content in a manner designed to be shared with other Service users, Customer acknowledges and agrees to such sharing. Customer should archive its Content frequently. Streamline is not responsible for any lost, damaged, or unrecoverable Content. Customer also acknowledges that Streamline is not responsible or liable with respect to Customer’s use of, or access to, any Content provided by other users.
Customer agrees not to use, nor permit any third party to use, the Service to upload, post, distribute, link to, publish, reproduce, engage in or transmit any of the following:
- Illegal, fraudulent, defamatory, obscene, pornographic, profane, threatening, abusive, hateful, harassing, offensive, inappropriate or objectionable information or communications of any kind, including without limitation conduct that would encourage "flaming" others, or criminal or civil liability under any local, state, federal or foreign law;
- Content that would impersonate someone else or falsely represent Customer’s (or any person’s) identity or qualifications, or that constitutes a breach of any individual’s privacy;
- Except as permitted by Streamline in writing, investment opportunities, solicitations, chain letters, pyramid schemes, other unsolicited commercial communication or engage in spamming or flooding;
- Virus, trojan horse, worm or other disruptive or harmful software or data; and
- Any information, software or content which is not legally Customer’s and without legally sufficient permission from the copyright owner or intellectual property rights owner.
3.2. Monitoring Customer’s Content. Streamline may, but has no obligation to, monitor content on the Service. Streamline may disclose any information necessary to satisfy its legal obligations, protect Streamline or its customers, or operate the Service properly. Streamline, in its sole discretion, may refuse to post, remove, or refuse to remove, any Content, in whole or in part, alleged to be unacceptable, undesirable, inappropriate, or in violation of this Agreement.
3.3. Community Forums. The Service may include a community forum or other social features to exchange content and information with other users of the Service and the public. Streamline does not support and is not responsible for the content in these community forums. Customer is responsible for all its interactions with, and its use of content from, any other community users. Customer should not reveal information that it does not want to make public. Users may post hypertext links to content of third parties for which Streamline is not responsible.
4. INTELLECTUAL PROPERTY
No intellectual property rights are assigned or transferred by Streamline hereunder.
5. FEES AND PAYMENT
5.1. Fees and Payment. All fees are as set forth on Streamline’s website (or as otherwise agreed to by Streamline and Customer in writing). Fees are payable when due. If Customer has provided Streamline with a credit card or bank account number, Customer hereby authorizes Streamline (or its third party payment processor) to charge such card or account for all fees owed. If Customer pays in advance for usage-based pricing, and then exceeds such usage, Streamline will invoice Customer for the excess usage on a pro rata basis for the remainder of the term. Streamline may adjust the fees charged to Customer hereunder on notice at any time. If Customer does not want to agree to any fee increase, its sole remedy, and Streamline’s exclusive liability, is to terminate this Agreement on notice (or by canceling Customer’s Service account via the functionality provided therein). If Customer disagrees with an invoice, it must notify Streamline within thirty (30) days from receipt of the invoice – or it is deemed final. Streamline’s fees are exclusive of all taxes and other governmental assessments. Customer is responsible for all of the foregoing - other than taxes based on the income of Streamline.
5.2. Late Payments. In the event of late payments, Customer agrees to pay interest at the rate of one and one-half percent (1.5%) per month (or the maximum rate permitted by applicable law, whichever is less). In addition, Customer will reimburse Streamline for all costs of collection (including attorneys’ fees). If Customer's account is thirty (30) days or more overdue, in addition to any of its other rights or remedies, Streamline reserves the right to suspend Customer’s access to the Service, with or without notice, without liability to Customer until such amounts are paid in full.
6. TERM AND TERMINATION
6.1. Term. This Agreement will begin on the Effective Date and will have the subscription term selected by Customer in the Order Process (“Subscription Term”). The Subscription Term will automatically renew for successive renewal terms of equal length to the initial Subscription Term, unless: (i) Customer cancels its Service account via the account functionality prior to the renewal date, or (ii) this Agreement is otherwise terminated as set out herein.
6.2. Termination. Streamline may terminate this Agreement and the Subscription Term at any time, with or without notice; provided that, if such termination is in the middle of a Subscription Term and termination if not for Customer’s breach, Streamline will refund all fees paid in advance for the remainder of the Subscription Term. In addition, either party may terminate this Agreement if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice (such notice must contain sufficient detail as to the nature of the breach and state the intent to terminate); (b) ceases operation without a successor; or (c) seeks protection under, or is subject to, any bankruptcy, receivership or comparable proceeding.
6.3. Effect of Termination. Upon any expiration or termination of this Agreement, (i) Customer shall immediately cease any and all use of and access to the Service and (ii) Customer will return to Streamline (or destroy at the Streamline’s request) its Confidential Information (subject to Section 6.4 below). In the event this Agreement is terminated by Customer for Streamline’s uncured breach as authorized in Section 6.2, Streamline will promptly refund to Customer all fees paid in advance for the remainder of the term. Except as expressly set forth in the preceding sentence, all fees are non-refundable and non-cancellable.
Customer Data. During the thirty (30) days period immediately following expiration or termination of this Agreement, Streamline will, on request, provide Customer with a copy of its Customer Data (in a format reasonably requested).
6.4. Survival. The following Sections shall survive any expiration or termination of this Agreement: 1.3, 1.4, 1.5, 2.3, 5 (with respect to outstanding payment obligations), 6, 7.3, 8, 9 and 7.
7. WARRANTIES; DISCLAIMER
7.1. Mutual Warranties. Each party represents and warrants that (i) it has all right, power, and authority to execute this Agreement and perform hereunder, (ii) its activities in connection with this Agreement will not violate any laws or regulations, and (iii) its performance will not conflict with an obligations it has to any third party.
7.2. Services Warranties. Streamline warrants, for Customer’s benefit only, that the Services will operate in conformity, in all material respects, with the applicable Documentation. Streamline does not warrant that Customer’s use of the Service will be uninterrupted or error-free. Streamline’s sole liability (and Customer’s sole and exclusive remedy) for any breach of this warranty shall be, in Streamline’ sole discretion and at no charge to Customer, to use commercially reasonable efforts to provide Customer with an error correction or work-around that corrects the reported non-conformity, or if Streamline determines such remedies to be impracticable, to allow Customer to terminate the Subscription Term and receive as its sole remedy a refund of any fees Customer has pre-paid for use of the Service or as of the date of the warranty claim. The limited warranty set forth in this Section 2 shall not apply: (i) unless Customer makes a claim within thirty (30) days of the date on which the condition giving rise to the claim first appeared, (ii) if the error was caused by misuse, unauthorized modifications or third-party hardware, software or services, or (iii) if the Service is provided on a no-charge or evaluation basis. This Section 6.2 will not apply if the Services are provided on a beta, evaluation, or otherwise free basis.
7.3. Disclaimer; Limitation on Liability.
EXCEPT AS SET FORTH IN SECTION 7.1, THE SERVICE IS PROVIDED “AS IS” AND STREAMLINE DISCLAIMS (ON BEHALF OF ITSELF AND ITS PARTNERS AND PROVIDERS) ALL OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
IF STREAMLINE OR THE SERVICES PROVIDE ANY OUTPUT OR ADVICE (SUCH AS ADVICE ON COMPLIANCE WITH LAWS OR REGULATIONS REGARDING WEB ACCESSIBILITY), SUCH OUTPUT AND ADVICE IS PROVIDED “AS IS”. STREAMLINE IS NOT CUSTOMER’S LEGAL COUNSEL.
STREAMLINE SHALL NOT LIABLE, UNDER ANY LEGAL OR EQUITABLE THEORY OF LAW, WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT FOR ANY: (I) INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE, (II) AMOUNTS IN THE AGGREGATE IN EXCESS OF THE FEES PAID BY CUSTOMER TO STREAMLINE DURING THE IMMEDIATELY PRECEDING SIX (6) MONTH PERIOD (OR, IF NO AMOUNTS HAVE BEEN PAID, SUCH AMOUNT SHALL BE US$1,000.00), OR (III) THE COST OF PROCUREMENT OF SUBSTITUTE TECHNOLOGY OR SERVICES. STREAMLINE’S PARTNERS AND PROVIDERS SHALL HAVE NO LIABILITY IN CONNECTION WITH THIS AGREEMENT.
IF STREAMLINE OR THE SERVICES PROVIDE ANY OUTPUT OR ADVICE (SUCH AS ADVICE ON COMPLIANCE WITH LAWS OR REGULATIONS REGARDING WEB ACCESSIBILITY), STREAMLINE HAS NO LIABILITY WITH RESPECT TO CUSTOMER’S USE OR RELIANCE ON SUCH OUTPUT OR ADVICE.
Streamline provides the indemnity in this Section 8 only if Customer has executed a committed purchase of the Services in excess of US$25,000. Streamline shall indemnify and hold harmless Customer from and against any claim (i) that the Service (as provided by Streamline) infringes any patent, copyright, or trademark, or (ii) that Streamline violates any laws or regulations - provided that Customer provides Streamline with: (i) prompt written notice of such claim (but in any event notice in sufficient time for Streamline to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement (if applicable) of such claim; and (iii) all reasonable necessary cooperation of Customer. If Customer’s use of the Service is, or in Streamline’s opinion is likely to be, enjoined due to the type of infringement specified above, or if required by settlement, Streamline may, in its sole discretion: (a) substitute substantially functionally similar products or services; (b) procure for Customer the right to continue using the Service; or if (a) and (b) are commercially impracticable, (c) terminate the Agreement and Streamline will promptly refund to Customer all fees paid in advance for the remainder of the term. The foregoing indemnification obligation of Streamline shall not apply: (1) if the Service is modified by any party other than Streamline, but solely to the extent the alleged infringement is caused by such modification; (2) if the Service is combined with other services or processes not authorized by Streamline, but solely to the extent the alleged infringement is caused by such combination; (3) to any unauthorized use of the Service; or (4) any action arising as a result of Customer Data or any third-party deliverables or components contained within the Service.
9. CONFIDENTIAL INFORMATION
Each party agrees that all business and technical information it obtains (“Receiving Party”) from 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 Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. All fees and pricing information will be Streamline’s Confidential Information. Except as expressly authorized herein, the Receiving Party will, using reasonable measures, hold in confidence and not use or disclose any Confidential Information. In addition, all confidential information from Streamline’s partners or providers will, as between Streamline and Customer, be Streamline’s Confidential Information. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; or (ii) is or has become public knowledge through no fault of the Receiving Party. If required to be disclosed by law, the Receiving Party will immediately notify the Disclosing Party and use its best efforts to limit the disclosure. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief (without the posting of a bond or similar instrument) in addition to whatever other remedies it might have at law.
10. LOGO USE
Customer agrees that Streamline may use of Customer’s name and logo on Streamline’s website and in Streamline promotional materials as part of a general list of customers. Any other marketing or promotion use is subject to Customer’s written approval (email is sufficient).
11. GENERAL TERMS
11.1. Assignment. Customer will not assign or transfer this Agreement without Streamline’s written consent, except that it may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of its assets or voting securities (provided that the successor is not a competitor of Streamline). Streamline may freely assign this Agreement. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 11.1 will be null and void.
11.2. Force Majeure. Streamline will not be liable for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of Streamline, such as a strike, blockade, war, act of terrorism, pandemic, riot, natural disaster, failure or diminishment of telecommunications, or refusal of a license by a government agency.
11.3. Governing Law; Jurisdiction. This Agreement shall be governed by the laws of the State of California and the United States without regard to conflicts of law provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. Except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any competent court), any dispute arising under this Agreement shall be finally settled in accordance with the Rules of the Judicial Arbitration and Mediation Service (“JAMS”) in accordance with such Rules. To the extent the JAMS streamlined rules are available – they shall apply. The arbitration shall take place in San Francisco, California, in the English language and the arbitral decision may be enforced in any court. To the extent a claim cannot legally be arbitrated (as determined by an arbitrator), the jurisdiction and venue for actions related to the subject matter hereof shall be the state and United States federal courts located in San Francisco, California and both parties hereby submit to the personal jurisdiction of such courts.
11.4. Third-Party Beneficiaries. To the extent Streamline provides Customer with any products provided (in whole or part) by Streamline’s own partners or providers, the terms of this Agreement will apply to such offering (unless Customer has a separate agreement with the partner/provider as contemplated by Section 1.4 above). Such partners and providers of Streamline are third-party beneficiaries to this Agreement (as necessary to protect their intellectual property, confidential information, or liability).
11.5. Notice. All notices to Customer may be provided by Streamline via email or account notification. Any legal notices to Streamline must be sent to Digital Deployment, Inc., 3301 C Street Suite 1000 Sacramento, CA 95816. In addition, legal notices must also be sent to firstname.lastname@example.org (but, notwithstanding earlier receipt via email, legal notices will be deemed received when the physical notice is received as set forth in preceding sentence).
11.6. Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. It may only be amended or waived in a writing executed by both parties. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect. This Agreement may be executed electronically and in counterparts (such as via DocuSign).