1. Barkly Service
- You are granted a nonexclusive right during the Term (as defined below) to use the Service subject to the terms, conditions and restrictions set forth in this Agreement.
- You agree to pay fees for the Service in accordance with the terms specified in the Portal and as further set forth below.
- Barkly may revise its fees or other commercial terms upon 30 days prior notice, which can occur by Barkly placing a notice in the Portal or Service, by sending you an email and/or by some other means.
2. Term and Termination
The term of this Agreement shall commence as of the date you first register for, access or use the Service, and shall continue for the period agreed by you in your Order, unless earlier terminated as set forth below (the “Term”). If you have a monthly subscription, you may terminate this Agreement at any time by notifying Barkly that you wish to terminate your account. If you have an annual subscription, you have committed to a year of Service and cannot cancel during the Term, but you may elect not to renew the Service by notifying us at least 30 days prior to the end of the Term. Barkly may terminate this Agreement at any time, for any reason or no reason (including, without limitation, for your breach of this Agreement or violation of applicable law). Upon any termination of this Agreement, any amounts owed to Barkly which accrued prior to such termination will become immediately due and payable. No refunds will be provided by Barkly if you or Barkly terminate the Agreement. Upon termination, we reserve the right to remotely remove the Agent from your device if we so choose.
3. Modifications to Agreement
Barkly reserves the right to amend or modify this Agreement at any time, but if we do, we will bring it to your attention by placing a notice in the Portal or by sending you an email. If you don’t agree with the amended or modified Agreement, you are free to reject it; but you will no longer be able to use the Service, and Barkly will not provide a refund. If you use the Services in any way after a change to this Agreement is effective, that means you agree to all of the changes.
4. Registration and Payment Terms
- You agree to provide us with current, complete and accurate registration information when you complete the Order as prompted by the Service registration process and to maintain and properly update such information ("Registration Data"). Upon registration, you will create a unique user ID and password for your account. We are not liable for any harm caused by or related to the theft of any IDs we provide to you to enable use of the Service or otherwise, your disclosure of your IDs, or your authorization to allow another person to access and use the Service using your IDs. Furthermore, you are solely and entirely responsible for any and all activities that occur under your account including any charges incurred relating to the Service. You agree to immediately notify us of any unauthorized use of your account or any other breach of security known to you. You acknowledge that the complete privacy of your data and messages transmitted while using the Service cannot be guaranteed.
- We will submit your payment information to our payment service providers and will charge you a fee for the Service as indicated on the Order and in the Portal. These fees were agreed upon by you in the registration process when you completed the Order. Payments owed by you for your use of the Service will be billed by Barkly and deducted from your authorized credit card in accordance with Barkly’s then-current payment policies described at www.barkly.com/pricing. Prices are exclusive of taxes and other fees which may be imposed on Barkly or you for the provision or use of the Service. You will be responsible for such taxes and other fees. Without limiting any remedy available to Barkly, if you fail to pay any fees due hereunder, Barkly may suspend your access to the Service, and you may be liable for interest or late charges.
5. Service Use and Limitations
- We will make reasonable efforts to keep the Service operational 24 hours a day/7 days a week, except for: (i) planned downtime (of which we will use reasonable efforts to provide at least 72 hours prior notice, but in no event fewer than 8 hours prior notice); or (ii) any unavailability caused by circumstances beyond our control, including but not limited to, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems or Internet service provider failures or delays.
- You understand and agree that we will be continually monitoring and occasionally updating the Service and your use of the Service on a remote basis.
- We will support the Service, at a level to be determined by us in our sole discretion, via email (firstname.lastname@example.org) or via chat application in the Portal. We will endeavor to provide support responses via email or chat within 4 hours during our business hours, which are 9am – 5pm ET, 5 days a week except Barkly holidays. We will attempt to address support requests received outside of Barkly business hours on the next business day. Service updates may be provided by Barkly remotely. In the event you fail to download such updates, the Service may be adversely affected or inoperable.
- You represent, warrant and agree that you will only use the Service in compliance with all applicable laws and regulations, and that you will not use the Service to violate, infringe, or misappropriate any intellectual property or other proprietary right of any third party (including, without limitation, any rights of privacy or publicity).
- You understand and agree that you are responsible for obtaining any and all necessary consents from your employees, contractors, and other end users of the Service (“End Users”) to allow Barkly to collect and temporarily cache and store information of any type stored on End Users’ machines as necessary to provide the Service to you.
- If you are a trial user of the Service, the purpose of the trial is to ascertain the suitability of the Service for your organization. You understand and agree that the results of the trial and all information related thereto are the confidential information of Barkly and may not be published, made public or disclosed to any third party without the written consent of Barkly.
6. Third Party Products
The Service may provide you with access to, be integrated with, or contain links or references to, products, services (including those of Barkly’s payment service providers), data, information, sites or other materials which are provided or operated by third parties (collectively, "Third Party Products"). Third Party Products are not under Barkly’s control, and you acknowledge that Barkly is not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such Third Party Products.
7. Proprietary Rights
- The Service contains content and technology of Barkly that is protected by copyright, trademark, patent, trade secret and other laws. As between the parties, Barkly owns all intellectual property and other proprietary rights to the Service and Agent, including but not limited to the design, artwork, logos, functionality, and documentation relating thereto (collectively, the "Barkly Property"). You may not: (i) copy, modify, or reverse engineer any part of the Service or Agent or any Barkly Property; (ii) rent, sell, lease, distribute, provide on a service bureau basis, or otherwise use the Service, Agent or Barkly Property for the benefit of any third party; or (iii) remove or otherwise alter any proprietary notices or labels from the Service or any portion thereof or the Barkly Property.
- Subject to the terms and conditions of this Agreement, Barkly hereby grants you a limited, revocable, nonsublicensable license to display and use the Service solely for personal, non-commercial use for the intended purposes of the Service as described in the Portal. We also grant you a limited, revocable, nonsublicensable license to use the Agent and the Barkly Property solely for the purpose of your use of the Service. Your license to the Service, Agent and Barkly Property is limited to the Term. Notwithstanding such permitted uses and license, you acknowledge that all derivatives, modifications, enhancements, copies, improvements and inventions related to the Service, Agent and Barkly Property (collectively, "Derivative Works") are the sole property of Barkly. No other rights are granted to you with respect to the Service, Agent and Barkly Property other than those rights granted explicitly herein, including with respect to any Derivative Works.
- You understand and agree that any feedback, suggestions, comments, advice or ideas provided by you to Barkly regarding the Service, Agent or Barkly Property are owned by Barkly and may be used by Barkly for any purpose.
- You agree that Barkly may use your name and logo to identify you as a Barkly customer on its website or in other sales or marketing materials. In addition, you acknowledge that Barkly may freely use and make available Aggregated Anonymous Data. "Aggregated Anonymous Data" means information and data that is in an aggregated, anonymized form, and which can in no way be specifically linked to you or to any of your customers.
8. Disclaimer of Warranties
YOU EXPRESSLY UNDERSTAND AND AGREE THAT: YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. BARKLY AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS, SERVICE PROVIDERS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IF YOU ARE USING A BETA, TRIAL OR EARLY ACCESS VERSION OF THE SERVICE, YOU DO SO AT YOUR OWN RISK.
BARKLY MAKES NO WARRANTY THAT (I) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (II) THAT YOUR ACCESS TO OR USE OF THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE, (III) THAT ANY DEFECTS IN THE SERVICE WILL BE CORRECTED, OR (IV) THAT THE SERVICE OR ANY SERVER OR SYSTEM THROUGH WHICH YOU ACCESS THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE MAKE NO WARRANTIES REGARDING THE PREVENTION, DETECTION OR RESOLUTION OF SECURITY INCIDENTS, CYBERATTACKS, VIRUSES, INTRUSIONS, MALWARE, HACKING, SECURITY BREACHES, ETC.
9. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL BARKLY OR ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS, SERVICE PROVIDERS AND LICENSORS BE LIABLE TO YOU, CUSTOMER OR ANY OTHER PARTY ON ACCOUNT OF ANY CLAIM (WHETHER BASED UPON PRINCIPLES OF CONTRACT, WARRANTY, NEGLIGENCE OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, THE FAILURE OF ANY LIMITED REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE, OR OTHERWISE) FOR (I) ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, EVEN IF BARKLY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (II) ANY AMOUNTS IN EXCESS (IN THE AGGREGATE) OF THE FEES PAID (OR PAYABLE) BY YOU UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING ANY CLAIM (BUT WE WILL HAVE NO LIABILITY FOR ANY CLAIMS RELATED TO SERVICES PROVIDED ON A FREE TRIAL, EARLY RELEASE OR BETA BASIS). SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
We may provide our confidential information to you, or you may be exposed to such information during the Term. Our confidential information, which we developed at great expense and with much time and effort, includes Barkly Property, the Service, the Agent, how we handle and advise regarding security incidents, and other information regarding our technology and business. You agree to keep all this information confidential and not share it with other parties.
- This Agreement constitutes the entire agreement between you and Barkly and supersedes any and all previous agreements, written or oral, between you and Barkly, including previous versions of this Agreement.
- Any notice required or permitted in this Agreement shall be sent via email (and shall be deemed to have been duly given upon receipt), (i) if to Company, at email@example.com, or (ii) if to you, at the email address that you provide when registering your account in the Portal. Either party may update its email address for notice purposes via a notice delivered in accordance with this paragraph.
- You may not assign or transfer your rights or obligations under this Agreement without Barkly’s prior written consent. Barkly may assign or transfer this Agreement and/or all or any of its rights and obligations under this Agreement without your consent to any other party, including to a successor-in-interest to all or substantially all of such party’s assets, business or equity interests relating to this Agreement (whether effected by merger, acquisition, sale of assets, change of control, or otherwise). You understand and agree that Barkly may subcontract its obligations hereunder (provided that Barkly shall at all times remain fully responsible for the performance of any subcontractor).
- This Agreement, the relationship between you and Barkly, and any dispute arising hereunder shall be governed by the laws of the Commonwealth of Massachusetts without regard to its conflict of law provisions. You and Barkly agree to submit to the personal and exclusive jurisdiction of the federal and state courts located in the Commonwealth of Massachusetts.
- The provisions of this Agreement are intended for the benefit of, and are enforceable solely by, the parties hereto, and nothing in this Agreement shall be construed as giving any other person any right, remedy or claim under or in respect of this Agreement or any provision hereof.
- The parties shall be independent contractors under this Agreement, and nothing herein shall constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.
- Any failure of Barkly to enforce or exercise a right provided in these terms is not a waiver of that right.
- Should any provision of these terms be found invalid or unenforceable, such provision shall be limited or deleted to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
- If you are an agency of the United States Government, or the license granted hereunder is pursuant to a contract with either a defense or civilian agency of the United States Government, you agree that the Service, Agent and Barkly Property are provided with the commercial license rights stated herein and as set forth in FAR 52.244.6 and DFAR 227.7202.4, as applicable, or in successor provisions, as well as the terms set forth in this Agreement.
- The Service, Agent and Barkly Property are subject to United States export laws and administrative regulations. You agree not to export or re-export the Service, Agent or Barkly Property, or provide access to the same, in violation of such laws, including without limitation to any country, region, group, entity or individual to which or to whom the United States has embargoed or restricted the export of goods or services.
Revised October 31, 2016