Terms of Service
Updated: 22 July 2020
These Terms of Service (the “Terms”) describe your legal rights and responsibilities when using the online shared inbox and productivity tools and services provided by FikaTime, Inc. (the “Services”). These Terms create a legal and binding agreement between FikaTime, Inc. (the “FikaTime” or “we”) and the Customer (as further described below) agreeing to be bound by these Terms. A Customer may be referred to herein as the “Customer” or as “you.” Those persons who access the Services using Customer’s account are referred to herein as the “End Users.”
IMPORTANT NOTICE: THESE TERMS OF SERVICE CONTAIN A BINDING ARBITRATION CLAUSE (SEE SECTION 16b) THAT GOVERNS HOW CLAIMS YOU HAVE AGAINST FIKATIME WILL BE RESOLVED. PLEASE READ THIS PROVISION CAREFULLY.
1 - Access to the Services and Acceptable Use
To access the Services, You must register for a FikaTime account by providing your full legal name, a valid email address, and any other information required to complete the registration process. In order to access certain features of FikaTime Properties you may be required to become a Registered User. For purposes of the Terms, a “Registered User” is a User who has registered an account on the Website (“Account”), has a valid account on the collaboration service (“CS”) through which the User has connected to the Website, including but not limited to Microsoft Teams (each such account, a “Third-Party Account”), or has an account with the provider of the Application for the User’s mobile device.
You are responsible for ensuring that each of your End Users abides by these Terms at all times in connection with their use of the Services. It is your responsibility to: (a) inform your End Users of any relevant policies, practices and settings that you elect to enforce related to your End Users’ use of the Services; (b) obtain any rights, permissions or consents from your End Users that are necessary for your lawful use of the Service and the collection and processing of Customer Content (as defined in Section 2 below) by FikaTime in connection with your use of the Services; and (c) respond to and resolve any dispute between you and any of your End Users related to or based on Customer Content and/or your use of that Customer Content in connection with your use of the Services. You, and not FikaTime, are responsible for your End Users’ compliance with your internal policies and procedures.
The Services are not intended for use by those under the age of 16 and You are responsible for ensuring that all End Users are at least 16 years of age.
You and your End Users are responsible for all login credentials, including user names and passwords and FikaTime shall not be liable for any damages or losses that may occur as a result of your failure, or the failure of your End Users, to maintain the confidentiality of their login credentials.
You are responsible for notifying us at firstname.lastname@example.org if you become aware of any unauthorized use of or access to your account.
FikaTime may communicate with you via email or pushed notifications regarding your account, system updates, or other issues related to your account and may assume that any communications we receive under your account have been submitted by you.
1.2 Access Through a CS.
If you access the FikaTime services through a CS as part of the functionality of the Website, the Application and/or the Services, you may link your Account with Third-Party Accounts, by allowing FikaTime to access your Third-Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third-Party Account. You represent that you are entitled to disclose your Third-Party Account login information to FikaTime and/or grant FikaTime access to your Third-Party Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating FikaTime to pay any fees or making FikaTime subject to any usage limitations imposed by such third-party service providers. By granting FikaTime access to any Third-Party Accounts, you understand that FikaTime may access, make available and store (if applicable) any information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials accessible through FikaTime services (“Content”) that you have provided to and stored in your Third-Party Account (“CS Content”) so that it is available on and through FikaTime services via your Account. Unless otherwise specified in the Terms, all CS Content shall be considered to be Your Content (as defined in Section 3.1) for all purposes of the Terms. Depending on the Third-Party Accounts you choose and subject to the privacy settings that you have set in such Third-Party Accounts, personally identifiable information that you post to your Third-Party Accounts may be available on and through your Account on FikaTime services. Please note that if a Third-Party Account or associated service becomes unavailable or FikaTime's access to such Third-Party Account is terminated by the third-party service provider, then CS Content will no longer be available on and through FikaTime services. You have the ability to disable the connection between your Account and your Third-Party Accounts at any time by removing the Application from the CS. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND FIKATIME DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH THIRD-PARTY ACCOUNTS. FikaTime makes no effort to review any CS Content for any purpose, including but not limited to, for accuracy, legality or noninfringement, and FikaTime is not responsible for any CS Content.
1.3 Acceptable Use.
All End Users must comply with the following rules regarding acceptable use of the Services. End Users may not:
access, tamper with or use non-public areas of the Services, including but not limited to FikaTime’s computer systems or the technical delivery systems of FikaTime or its service providers;
probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measure;
“scrape” or otherwise access or search the Services by means other than through FikaTime’s publicly supported interfaces;
attempt to overwhelm or disrupt the Services or FikaTime’s infrastructure by intentionally imposing unreasonable burdens on our systems (for example, by using automated methods to send requests to our servers at a rate beyond what could be sent by a human user during the same period of time); or
disrupt or interfere with the access of other End Users or any host or network, including, without limitation, by sending a virus, overloading, spamming, mail- bombing or flooding the Services, or by scripting the creation of content in a manner designed to interfere with or create an undue burden on the Services.
End Users may not utilize the Services to carry out, promote or support:
any unlawful or fraudulent activities;
the impersonation of another person or entity or the misrepresentation of an affiliation with a person or entity in a manner that does or is intended to mislead, confuse or deceive others;
the publishing or dissemination of malicious content intended to damage or disrupt another’s browser or computer;
the sending of unsolicited communications, promotions, advertisements or spam; or
activities that are defamatory, libelous, threatening, or that constitute hate speech, harassment or stalking.
In addition to any other remedies that may be available to us, FikaTime reserves the right to take that remedial action we deem necessary, including the immediate suspension or termination of an End User or Customer’s account, upon notice and without liability to FikaTime should Customer or any of its End Users fail to abide by these acceptable use provisions or, if in FikaTime’s sole discretion, such action is deemed necessary to prevent disruption to the Services or harm to others. If you are an End User, FikaTime reserves the right to notify your organization and/or the administrator associated with your account with respect to any violation of these Terms.
Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of FikaTime.
1.4 Application License.
Subject to your compliance with the Terms, FikaTime grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the Application in a single Microsoft Teams workspace that you own or control and to run such copy of the Application solely for your own personal or internal business purposes.
You understand that FikaTime services are evolving. As a result, FikaTime may require you to accept updates to FikaTime services that you have installed on your computer or Microsoft Teams Workspace. You acknowledge and agree that FikaTime may update FikaTime Services with or without notifying you. You may need to update third-party software from time to time in order to use FikaTime Services.
2 - Your Content
End Users may create, process, upload, submit, store, send and receive content in connection with their use of the Services (the “Customer Content”). As between Customer and FikaTime, Customer retains all ownership and intellectual property rights in and to that Customer Content and FikaTime shall not be responsible for the Customer Content or the way Customer or its End Users choose to use the Services to store or process any Customer Content. Subject to these Terms, you (on behalf of yourself and your End Users) hereby grant to FikaTime a worldwide, limited, non-exclusive and non-transferrable (except in connection with the sale or transfer of its business) license to access, use, copy, reproduce, process, adapt, distribute, publish, transmit, export and display the Customer Content as reasonably necessary (a) to provide, maintain and update the Services; (b) to prevent or address service, security, support and technical issues; (c) as required by law or as permitted by our Law Enforcement Guidelines; and (d) as expressly permitted by Customer in writing.
3. Interactions with Other Users.
3.1 User Responsibility.
You are solely responsible for your interactions with other Users and any other parties with whom you interact; provided, however, that FikaTime reserves the right, but has no obligation, to intercede in such disputes. You agree that FikaTime will not be responsible for any liability incurred as the result of such interactions.
3.2 Content Provided by Other Users.
FikaTime Services may contain User Content provided by other Users. FikaTime is not responsible for and does not control User Content. FikaTime has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to User Content. You use all User Content and interact with other Users at your own risk.
4 - Use of Third Party Services in Connection with the FikaTime Services
4.1 FikaTime makes various third-party applications and services available for use in connection with the Services (the “Third Party Services”). Your use of such Third Party Services, and any exchange of data between You and the provider of such Third Party Service is solely between you and the third-party service provider. FikaTime does not warrant or support any Third Party Service or other non-FikaTime product or service, regardless of whether such Third Party Service, is promoted or made available through our Service or is designated by FikaTime as “certified” or “working with” the FikaTime Service. Customer acknowledges that providers of such Third Party Services may have access to Customer Content in connection with the interoperation and support of such Third Party Services with the Service and that, as between Customer and FikaTime, Customer is solely responsible for reviewing such Third Party Service provider’s practices and policies to ensure that they meet the legal and business requirements of Customer. To the extent Customer authorizes the access or transmission of Customer Content through a Third Party Service, FikaTime shall not be responsible for any use, disclosure, modification, or deletion of such Customer Content by the Third Party Service provider or for any act or omission on the part of such Third Party Service provider.
4.2 App Stores.
You acknowledge and agree that the availability of the Application and the Services is dependent on the third party from whom you received the Application license, e.g., the Microsoft Teams App Directory or similar app directory, store, or marketplace (“App Store”). You acknowledge that the Terms are between you and FikaTime and not with the App Store. FikaTime, not the App Store, is solely responsible for FikaTime Services, including the Application, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). You also agree to pay all fees (if any) charged by the App Store in connection with FikaTime Services, including the Application. You agree to comply with, and your license to use the Application is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using FikaTime Services, including the Application. You acknowledge that the App Store (and its subsidiaries) may be third-party beneficiaries of the Terms and will have the right to enforce them.
5 - Fees and Payment Terms
You agree to pay all fees or charges to your Account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable. You must provide FikaTime with a valid credit card (Visa, MasterCard, or any other issuer accepted by us) (“Payment Provider”), or purchase order information as a condition to signing up for the Services. Your Payment Provider agreement governs your use of the designated credit card, and you must refer to that agreement and not the Terms to determine your rights and liabilities. By providing FikaTime with your credit card number and associated payment information, you agree that FikaTime is authorized to immediately invoice your Account for all fees and charges due and payable to FikaTime hereunder and that no additional notice or consent is required. You agree to immediately notify FikaTime of any change in your billing address or the credit card used for payment hereunder. FikaTime reserves the right at any time to change its prices and billing methods, either immediately upon posting on FikaTime Properties or by e-mail delivery to you.
5.3 Service Subscription Fees.
Customer will be responsible for payment of the applicable fee for any Services (each, a “Service Subscription Fee”) at the time Customer creates their Account and selects their package (each, a “Service Commencement Date”). Except as set forth in the Terms, all fees for the Services are non-refundable. No contract will exist between Customer and FikaTime for the Services until FikaTime accepts the order by a confirmatory e-mail, SMS/MMS message, or other appropriate means of communication.
5.3 Auto Renewal.
Customer agrees that its subscription will continue indefinitely until terminated in accordance with the Terms. After the initial subscription period, and again after any subsequent subscription period, Customer's subscription will automatically commence on the first day following the end of such period (each a “Renewal Commencement Date”) and continue for an additional equivalent period, at Company’s then-current price for such subscription. Customer hereby authorizes FikaTime to automatically charge Customer the applicable fees on or after each such Renewal Date unless Customer’s subscription to the Service has been terminated or cancelled as set forth in Section 6 belowBy subscribing, Customer authorizes FikaTime to charge the Payment Provider now, and again at the beginning of any subsequent subscription period. Upon renewal of the subscription, if FikaTime does not receive payment from the Payment Provider, (i) Customer agrees to pay all amounts due on their Account upon demand, and/or (ii) Customer agrees that FikaTime may either terminate or suspend their subscription and continue to attempt to charge their Payment Provider until payment is received (upon receipt of payment, Customer's Account will be activated and for purposes of automatic renewal, the new subscription commitment period will begin as of the day payment was received).
All fees are exclusive of all taxes, levies, or duties or similar assessments of any nature, including for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively “Taxes”). Customer shall be responsible for payment of all such Taxes associated with its purchase of access to the Service, excluding only those taxes that are based on FikaTime’s net income. Should you be required to withhold any Taxes upon payment to FikaTime, you will reimburse FikaTime for such withholding.
5.5 Trial Subscriptions.
FikaTime may, at its option, offer new customers a limited free trial or other promotion of the Service, subject to these Terms. Notwithstanding anything to the contrary herein, FikaTime shall have the right to terminate a Customer free trial at any time and for any reason. No organization or individual is entitled to receive more than one (1) free trial of the Service. At the end of the trial period, Customer's use of that Service will expire and any further use of the Service is prohibited unless they pay the applicable subscription fee.
5.6 Late Payment.
If Customer fails to make payments (not disputed in good faith) when due under these Terms, and after continued non-payment for a period of fifteen (15) days after we provide Customer with written notice and an opportunity to cure, we may suspend provision of the Service until payment is received and may charge a late fee on the overdue amount from the date such amount became due at the lesser rate of 1.5% per month or the maximum rate permitted by applicable law, together with our costs incurred in collecting such payment. We are entitled to withhold performance and suspend provision of the Service until all undisputed amounts due are paid in full.
5.7 Payment service provider
6 - Term and Termination
These Terms shall remain in full force and effect until all Customer subscriptions to the Service have expired, have been terminated or are cancelled. Either party may terminate Customer’s subscription to the Service if the other party: (a) is in material breach of these Terms and fails to cure such breach within twenty (20) days following written notice by the non-breaching party; or (b) ceases its business operations or becomes subject to insolvency proceedings and such proceedings are not dismissed within sixty (60) days. Customer may cancel its subscription to the Service by notifying FikaTime at email@example.com no later than thirty (30) days prior to the Renewal Date.
Upon expiration, termination or cancellation of Customer’s subscription, FikaTime may immediately deactivate Customer’s account; provided, however, that in no event shall any such deactivation relieve Customer of any obligation to pay fees accrued or payable to FikaTime or of any liability pertaining to Customer’s use of the Service prior to such expiration, termination or cancellation. The following sections shall survive any expiration or termination of these Terms: Sections 7, 8, 10, 13 and 16.
7 - FikaTime's **Responsibilities**
Providing the Services. FikaTime will make the Services available to Customer and its End Users as described in these Terms.
Protecting the Customer Content. FikaTime will maintain industry-standard administrative, physical, and technical safeguards designed to prevent unauthorized access, use, modification, deletion or disclosure of the Customer Content and will ensure that third-party service providers utilized by FikaTime in connection with its delivery of the Services do the same. If Customer Content includes personal data defined by EU Regulation 2016/679 (the General Data Protection Regulation or “GDPR”), if such Customer Content is transferred outside the European Economic Area or Switzerland to any country not deemed by the European Commission as providing an adequate level of protection for personal data, and/or if Customer Content includes personal information as defined by the California Consumer Privacy Act of 2018 (the “CCPA”), then the terms of the FikaTime Data Processing Addendum shall apply to such personal data and be incorporated into these Terms upon the execution and submission of the FikaTime Data Processing Addendum by Customer in accordance with its terms. FikaTime’s Data Processing Addendum can be found at https://fikatime.app/data-processing. For customers who signed up to use the Services prior to July 1, 2020, or who otherwise entered into a different Data Processing Agreement with FikaTime, the terms of your existing Data Processing Agreement will continue to apply unless and until you sign the updated Data Processing Addendum referenced in the preceding sentence.
8 - Confidentiality
Definition of Confidential Information. In connection with their performance under these Terms, each party may from time to time make certain information available to the other party that is not generally known to the public at the time of its disclosure and is either identified as, or should reasonably be understood by the receiving party to be, proprietary or confidential (the “Confidential Information”). Confidential Information specifically includes, but is not limited to, the terms of any order form(s) entered into by the parties, Customer Content, business plans, product plans, roadmaps, strategies, forecasts, projects and analyses, the results of any audit related to the Service (including but not limited to any security audit), financial information and fee structures, business processes, methods and models, and technical documentation. Confidential information does not include information that: (a) is or becomes publicly available without breach of these Terms by the receiving party; (b) was known to the receiving party prior to its disclosure by the disclosing party; (c) is or was independently developed by the receiving party without the use of any Confidential Information of the disclosing party; or (d) is or was lawfully received by the receiving party from a third party under no obligation of confidentiality.
Protection of Confidential Information. Without the express prior written permission of the disclosing party, or as required by law, the receiving party will not disclose, transmit, or otherwise disseminate to any third party any Confidential Information of the disclosing party and will use at least the same degree of care and discretion with respect to the Confidential Information received from the disclosing party as it uses with its own similar information, but in no event less than a reasonable degree of care. The receiving party may disclose the disclosing party’s Confidential Information to its employees, affiliates, consultants, subcontractors, agents, or advisors (“Representatives”) who have a strict need to access the Confidential Information for the purpose of performing under these Terms and only to those who are obligated to maintain the confidentiality of such Confidential Information under terms that are at least as protective as the terms set forth in these Terms. Either party may disclose these Terms to potential parties to a bona fide fundraising, acquisition, or similar transaction solely for the purposes of the proposed transaction, provided that any such potential party is subject to written non-disclosure obligations and limitations on use that are no less protective than those set forth herein.
Equitable Relief. The receiving party acknowledges that the remedy at law for breach of these confidentiality provisions may be inadequate and that, in addition to any other remedy the disclosing party may have, it shall be entitled to seek equitable relief, including, without limitation, an injunction or injunctions (without the requirement of posting a bond, other security or any similar requirement or proving any actual damages), to prevent breaches or threatened breaches of these confidentiality provisions by the receiving party or any of its Representatives and to enforce the terms and provisions of this Section 8 in addition to any other remedy to which the disclosing party is entitled at law or in equity.
Compelled Disclosure. The receiving party may access and disclose Confidential Information of the disclosing party if legally required to do so in connection with any legal or regulatory proceeding; provided, however, that in such event the receiving party will, if lawfully permitted to do so, provide the disclosing party with notice in a reasonable time prior to such access or disclosure so as to allow the disclosing party an opportunity to seek appropriate protective measures. Receiving party will furnish only that portion of the Confidential Information that is legally required to be disclosed, and any Confidential Information so disclosed shall maintain its confidentiality protection for all purposes other than such legally compelled disclosure. If FikaTime is compelled by law to access or disclose Customer’s Confidential Information as part of a civil proceeding to which Customer is a party, Customer will reimburse FikaTime for the reasonable costs of compiling and providing secure access to such Confidential Information.
9 - FikaTime**'s Intellectual Property Rights; Rights to Customer Feedback**
As between FikaTime and Customer, FikaTime owns all intellectual property rights in and to the Service (excluding only the Customer Content) and all trademarks, logos and service marks utilized by FikaTime in connection with the delivery of the Service. FikaTime grants You a non-sublicensable, non-transferrable, non-exclusive, limited license to use the object code version of the Service solely as necessary to use the Service in accordance with these Terms. All rights not expressly granted by this license are hereby retained by FikaTime and you may not copy, modify, adapt, reproduce, distribute, reverse engineer, decompile, or disassemble any aspect of the Service.
We appreciate and welcome feedback from our customers. By submitting any feedback or suggestions regarding the Service, or sharing such feedback with any representative of FikaTime, You grant to FikaTime an unlimited, irrevocable, perpetual, sub-licensable, transferable, royalty-free license to use such feedback or suggestion(s) for any purpose and without any obligation or compensation to You, any End User, or any other Customer personnel.
10 - Disclaimer of Warranties
EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, THE SERVICE AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND FIKATIME EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON- INFRINGEMENT. CUSTOMER ACKNOWLEDGES THAT WE DO NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, SECURE, OR ERROR-FREE.
10.1 No Liability for Conduct of Third Parties.
YOU ACKNOWLEDGE AND AGREE THAT FIKATIME PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD FIKATIME PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
10.2 No Liability for Conduct of Other Users.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF FIKATIME PROPERTIES. YOU UNDERSTAND THAT FIKATIME DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF FIKATIME PROPERTIES. YOU ACKNOWLEDGE AND AGREE THAT FIKATIME PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD FIKATIME PARTIES LIABLE, FOR THE CONDUCT OF OTHER USERS AND THAT THE RISK OF INJURY FROM SUCH USERS RESTS ENTIRELY WITH YOU.
11 - Limitation of Liability
OTHER THAN IN CONNECTION WITH A PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER: (A) IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, HOWEVER, CAUSED, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) NEITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS OR CUSTOMER’S USE OF THE SERVICE WILL EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER DURING THE TWELVE (12) MONTHS PRECEDING THE LAST EVENT GIVING RISE TO LIABILITY.
The provisions of this Section 10 allocate the risk between the parties under these Terms, and the parties have relied on these limitations in determining whether to enter into these Terms.
12 - Export Compliance
The Service may be subject to export laws and regulations of the United States and other jurisdictions. Customer represents that neither it nor any of its End Users are named on any U.S. government denied-party list. Customer shall not permit any End User to access or use any Service in a U.S.- embargoed country or region or in violation of any U.S. export law or regulation. Customer and its End Users shall not use the Service to export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone outside the U.S. without first complying with all export control laws and regulations that may be imposed by the U.S. Government and any country or organization of nations within whose jurisdiction Customer operates or does business.
13 - Use of the Service Outside of the United States
The Service is controlled and operated by FikaTime from its offices in the United States. Except as explicitly set forth herein (and in the Data Processing Agreement if such agreement is entered into by the parties), FikaTime makes no representations that the Services are appropriate for use in other jurisdictions. Those who access or use the Service from other jurisdictions do so at their own risk and are responsible for compliance with local laws. FikaTime may offer services in other jurisdictions that are subject to different terms and conditions. In instances where Customer’s use of the Service occurs from within such jurisdiction, the FikaTime terms and conditions governing that non-U.S. jurisdiction shall take precedence over any conflicting provisions in these Terms with respect to Customer’s use of the Service from within such foreign jurisdiction.
14 - Indemnification Obligations
Customer’s Indemnification Obligations. Customer will indemnify FikaTime and its subsidiaries, affiliates, officers, employees and agents (the “FikaTime Parties”) from and against any third party claim, action, suit, proceeding or demand arising from or related to Customer’s or any End User’s violation of these Terms and will indemnify the FikaTime Parties for all damages finally awarded against the FikaTime Parties in connection with or as a result of such claim or any amounts paid by FikaTime under a settlement approved by Customer, including reasonable attorneys’ fees incurred in connection with the defense or settlement of such claim. This section states Customer’s sole liability with respect to, and the FikaTime Parties’ exclusive remedy against Customer for, any such claim.
FikaTime’s Indemnification Obligations. FikaTime will indemnify Customer and its subsidiaries, affiliates, officers, employees and agents (the “Customer Parties”) from and against any third party claim alleging that the Service violates the intellectual property rights of such third party and will indemnify the Customer Parties for all damages finally awarded against the Customer Parties in connection with or as a result of such claim or any amounts paid by Customer under a settlement approved by FikaTime, including reasonable attorneys’ fees incurred in connection with the defense or settlement of such claim. Notwithstanding the foregoing, FikaTime shall not be required to indemnify Customer hereunder to the extent the claim against Customer arises from (a) Customer or any Customer End User’s use of the Service in a manner that violates these Terms; or (b) use of the Service in a modified form or in combination with any third party product, service or content not furnished to Customer by FikaTime.
Potential Infringement. If the Service becomes, or in FikaTime’s reasonable judgment is likely to become, the subject of a claim of infringement, then FikaTime may in its sole discretion: (a) obtain the right, at FikaTime’s expense, for Customer to continue using the Service; (b) provide a non-infringing functionally equivalent replacement; or (c) modify the Service so that it is no longer infringing. If FikaTime, in its sole and reasonable judgment, determines that none of the above options are commercially reasonable, then FikaTime may suspend or terminate Customer’s use of the Service, in which case FikaTime’s sole liability (in addition to its indemnification obligations above) shall be to provide Customer with a pro-rated refund of prepaid but unused fees applicable to the remaining portion of Customer’s current subscription term. Subsections (b) above and this subsection (c) state FikaTime’s sole liability with respect to, and Customer Parties’ exclusive remedy against FikaTime for, any infringement claim.
Indemnification Process. The party seeking indemnification shall provide prompt notice to the indemnifying party concerning the existence of an indemnifiable claim and shall promptly provide the indemnifying party with all information and assistance reasonably requested and cooperate fully with the indemnifying party in defending the claim. Failure to give prompt notice shall not constitute a waiver of a party’s right to indemnification and shall affect the indemnifying party’s obligations under these Terms only to the extent that the indemnifying party’s rights are materially prejudiced by such failure or delay. The indemnifying party shall have full control and authority over the defense of any claim; provided, however, that any settlement requiring the party seeking indemnification to admit liability or make any financial payment shall require such party’s prior written consent, not to be unreasonably withheld or delayed.
15 - Modifications
FikaTime reserves the right to update or modify these Terms from time to time as our business evolves by posting an updated version of these Terms on our website. If, in our sole discretion, we believe that the modifications being made are material, we will notify You (email to suffice) prior to the change taking effect. By continuing to utilize the Service after the effective date of any update to these Terms, Customer will be deemed to have accepted such update.
16 - Beta Access
Select Customers may be invited to participate in the review and testing of pre-release versions of new tools and Service enhancements which may be identified as “beta,” “early access,” “evaluation,” “preview,” “test,” “pre-release,” or similar term (. Customer acknowledges and understands that its participation in such pre-release testing is not required and is at Customer’s own risk, are made available “as is” basis, and may be subject to additional terms related to their use.
17 - Miscellaneous
Governing Law; Venue. These Terms and any disputes arising under it will be governed by the laws of the State of California without regard to its conflict of laws provisions, and each party consents to the personal jurisdiction and venue of the state or federal courts located in San Francisco, California. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
Arbitration. Any dispute arising out of or in any way relating to these Terms shall be resolved according to California law and exclusively by binding arbitration before a single arbitrator with the Judicial Arbitration and Mediation Service (JAMS) and pursuant to the then existing arbitration rules at JAMS. If the parties cannot agree upon selection of an arbitrator, then JAMS shall appoint an arbitrator experienced in the enterprise software industry. The place of the arbitration will be San Francisco, California unless otherwise agreed upon by the parties. The arbitration will be conducted in English. The arbitrator shall provide detailed written findings of fact and conclusions of law in support of any award. Judgment upon any such award may be enforced in any court of competent jurisdiction. The parties further agree that the arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. If any court or arbitrator determines that the class action waiver set forth herein is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the portions of this section mandating arbitration shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes. Customer may opt out and not be bound by the arbitration and class action waiver provisions by sending written notice to FikaTime within thirty (30) days of the effective date of these Terms between Customer and FikaTime. Written notice should be sent to the address shown below. If Customer opts out of arbitration, FikaTime will also not be bound to arbitrate. Notwithstanding the foregoing, either party shall be entitled to seek injunctive relief as set forth in the Confidentiality section above to stop unauthorized use of any confidential information or the Service or infringement of a party’s intellectual property rights. Disputes, claims, or controversies concerning either party’s intellectual property rights or claims of piracy or unauthorized use of the Service shall not be subject to arbitration. The parties further agree that the prevailing party in any action or proceeding to enforce any right or provisions under this Agreement, including any arbitration or court proceedings, will be entitled to recover its reasonable costs and attorneys’ fees.
Notices. FikaTime may provide general notices related to the Service that are applicable to all customers via email or in-app notifications and such notices shall be deemed to satisfy any legal requirement that notice be made in writing. Other notices (including all notices from Customer) must be sent via email (to, in the case of FikaTime, firstname.lastname@example.org). General questions regarding the Service should be directed to email@example.com.
Publicity; Use of Customer Marks. Customer grants to FikaTime the right to use Customer’s name and logo in FikaTime’s online customer list and in print and electronic marketing materials.
Severability; No Waiver. In the event that any provision of these Terms is found to be invalid or unenforceable, such provision shall be limited or eliminated to the minimum extent necessary so that these Terms shall otherwise remain in full force and effect and remain enforceable between the parties. No waiver of any provision of these Terms shall be deemed a further or continuing waiver of such provision or any other provision, and a party’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision.
Assignment. Neither these Terms nor any of the rights or licenses granted hereunder may be transferred or assigned by either party without the other party’s express prior written consent (not to be unreasonably withheld or delayed); provided, however, that either party may assign these Terms and all order forms related to Customer’s use of the Service upon written notice without the other party’s consent to an affiliate or to its successor in interest in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets; provided, however, that should Customer assign these Terms to any direct competitor of FikaTime, then FikaTime shall have the right to terminate these Terms and Customer’s use of the Service upon notice, in which case FikaTime shall provide Customer’s assignee with a pro- rata refund of any prepaid but unused fees. Any other attempt to transfer or assign these Terms or Customer’s subscription to the Service will be null and void. Subject to the foregoing, these Terms shall bind and inure to the benefit of the parties, their respective successors, and permitted assigns.
Force Majeure. Neither party shall be liable for delayed or inadequate performance of its obligations hereunder to the extent caused by a condition that is beyond such party’s reasonable control, including but not limited to natural disaster, civil disturbance, acts of terrorism or war, labor conditions, governmental actions, interruption or failure of the Internet or any utility service, failures in third-party hosting services, and denial of service attacks (each a “Force Majeure Event”). The party experiencing such Force Majeure Event shall be relieved from its obligations (or part thereof) as long as the Force Majeure Event lasts and hinders the performance of said obligations (or part thereof); provided, however, that the party experiencing such Force Majeure Event shall promptly notify the other party of such event and shall make reasonable efforts to mitigate the effects of the Force Majeure Event.
Relationship of the Parties. The parties are and shall be independent contractors with respect to all services provided under these Terms or any Order Form. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. There are no third-party beneficiaries to this Agreement. Without limiting this Section, a Customer’s End Users are not third-party beneficiaries to Customer’s rights under this Agreement.
Entire Agreement. These Terms, including all attachments, exhibits, addendums, and any order form(s) related hereto, constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes and replaces any prior or contemporaneous representations, understandings and agreements, whether written or oral, with respect to its subject matter. To the extent of any conflict or inconsistency between the provisions of these Terms and any order form, these Terms shall prevail. No terms or conditions stated in any Customer purchase order or similar documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be considered null and void.