Therefore Corporation GmbH Terms of Service
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This Terms of Service Agreement (the “Agreement”) is between Therefore Corporation GmbH (“Therefore”) and the organization agreeing to these terms (“Customer”). This Agreement governs access to and use of the Therefore client software (“Software”) and services (together, the “Services”) by the Customer.
By signing the Reseller Sales Proposal or Contract for the Services or using the Services you agree to this Agreement as a Customer. If you are agreeing to this Agreement for use of the Services by an organization, you are agreeing to this Agreement on behalf of that organization. You must have the authority to bind that organization to this Agreement, otherwise you must not sign up for the Services.
1. Services.
a. Provision of Services. Customer and users of Customer’s Services account (“End Users”) may access and use the Services in accordance with this Agreement.
b. Facilities and Data Processing. Therefore will use, at a minimum, industry standard technical and organizational security measures to transfer, store, and process Customer Data. These measures are designed to protect the integrity of Customer Data and guard against the unauthorized or unlawful access to, use, and processing of Customer Data. Customer agrees that Therefore may transfer, store, and process Customer Data in locations other than Customer’s country. “Customer Data” means Stored Data and Account Data. “Stored Data” means the files and structured data submitted to the Services by Customer or End Users. “Account Data” means the account and contact information submitted to the Services by Customer or End Users.
c. Modifications to the Services. Therefore may update the Services from time to time. We may add or remove functionalities or features, and we may suspend or stop a Service altogether. If Therefore changes the Services in a manner that materially reduces their functionality, Therefore will inform Customer via the email address associated with the account.
d. Software. Some Services allow Customer to download Therefore Software which may update automatically. Customer may use the Software only to access the Services. If any component of the Software is offered under an open source license, Therefore will make the license available to Customer and the provisions of that license may expressly override some of the terms of this Agreement.
2. Customer Obligations.
a. Compliance. Customer is responsible for use of the Services by its End Users. Customer and its End Users must use the Services in compliance with the Acceptable Use Policy. Customer will obtain from End Users any consents necessary to allow Administrators to engage in the activities described in this Agreement and to allow Therefore to provide the Services. Customer will comply with laws and regulations applicable to Customer’s use of the Services, if any.
b. Customer Administration of the Services. Customer may specify End Users as “Administrators” through the administrative console. Administrators may have the ability to access, disclose, restrict or remove Customer Data in or from Services accounts. Administrators may also have the ability to monitor, restrict, or terminate access to Services accounts. Therefore’s responsibilities do not extend to the internal management or administration of the Services. Customer is responsible for: (i) maintaining the confidentiality of passwords and Administrator accounts; (ii) managing access to Administrator accounts; and (iii) ensuring that Administrators’ use of the Services complies with this Agreement.
c. Unauthorized Use & Access. Customer will prevent unauthorized use of the Services by its End Users and terminate any unauthorized use of or access to the Services. Customer will promptly notify Therefore of any unauthorized use of or access to the Services.
d. Restricted Uses. Customer will not (i) sell, resell, or lease the Services; (ii) use the Services for activities where use or failure of the Services could lead to physical damage, death, or personal injury; or (iii) reverse engineer the Services, nor attempt nor assist anyone else to do so, unless this restriction is prohibited by law.
e. Third Party Requests.
i. “Third Party Request” means a request from a third party for records relating to an End User’s use of the Services including information in or from an End User or Customer’s Services account. Third Party Requests may include valid search warrants, court orders, or subpoenas, or any other request for which there is written consent from End Users permitting a disclosure.
ii. Customer is responsible for responding to Third Party Requests via its own access to information. Customer will seek to obtain information required to respond to Third Party Requests and will contact Therefore only if it cannot obtain such information despite diligent efforts.
iii. Therefore will make commercially reasonable efforts, to the extent allowed by law and by the terms of the Third Party Request, to: (A) promptly notify Customer of Therefore’s receipt of a Third Party Request; (B) comply with Customer’s commercially reasonable requests regarding its efforts to oppose a Third Party Request; and (C) provide Customer with information or tools required for Customer to respond to the Third Party Request (if Customer is otherwise unable to obtain the information). If Customer fails to promptly respond to any Third Party Request, then Therefore may, but will not be obligated to do so.
3. Third-Party Services.
If Customer uses any third-party service (e.g., a service that uses a Therefore API) with the Services, (a) Therefore will not be responsible for any act or omission of the third party, including the third party’s access to or use of Customer Data and (b) Therefore does not warrant or support any service provided by the third party.
4. Content.
The Software and the Services permit the Customer and its End Users to upload and input data (any such data: the “Content”). Customer will: (a) be solely responsible for the nature, legality, reliability, integrity, quality, and accuracy of the Content; (b) ensure that the Content (including the storage or transmission thereof) complies with these Terms and any and all applicable laws, and regulations; (c) promptly handle and resolve any notices and claims relating to the Content, including any notices sent to you by any person claiming that any Content violates any person’s rights; and (d) maintain appropriate security, protection and backup copies of the Content, which may include, your use of additional encryption technology to protect the Content from unauthorized access. Therefore will have no liability of any kind as a result of the deletion of, correction of, destruction of, damage to, loss of or failure to store or encrypt any Content.
5. Intellectual Property Rights.
a. Reservation of Rights. Except as expressly set forth herein, this Agreement does not grant (i) Therefore any Intellectual Property Rights in Customer Data or (ii) Customer any Intellectual Property Rights in the Services (and all hardware, software and other items used to provide the Services) or Therefore trademarks and brand features. “Intellectual Property Rights” means current and future worldwide rights under patent, copyright, trade secret, trademark, moral rights, and other similar rights.
b. Limited Permission. Customer grants Therefore only the limited rights that are reasonably necessary for Therefore to offer the Services (e.g., hosting Stored Data). This permission also extends to trusted third parties Therefore works with to offer the Services (e.g., payment provider used to process payment of fees).
c. Suggestions. Therefore may, at its discretion and for any purpose, use, modify, and incorporate into its products and services, license and sublicense, any feedback, comments, or suggestions Customer or End Users send Therefore or post in Therefore’s forums without any obligation to Customer.
d. Customer List. Therefore may include Customer’s name in a list of Therefore customers on the Therefore website or in promotional materials.
6. Fees & Payment.
a. Fees. The fees applicable for the Services (“Fees”) are available on the Site and/or in Therefore’s then-current published price list. Customer will pay, and authorizes Therefore to charge using Customer’s selected payment method, for all applicable fees. Fees are non-refundable except as required by law. Customer is responsible for providing complete and accurate billing and contact information to Therefore. Therefore may suspend or terminate the Services if fees are past due.
b. Auto Renewals and Trials. IF CUSTOMER’S ACCOUNT IS SET TO AUTO RENEWAL, THEREFORE MAY AUTOMATICALLY CHARGE FOR THE RENEWAL, UNLESS CUSTOMER NOTIFIES THEREFORE THAT CUSTOMER WANTS TO CANCEL OR DISABLE AUTO RENEWAL. Therefore may revise Service rates by providing Customer at least 30 days notice prior to the next charge.
c. Taxes. Customer is responsible for all taxes. Therefore will charge tax when required to do so. If Customer is required by law to withhold any taxes, Customer must provide Therefore with an official tax receipt or other appropriate documentation.
d. Purchase Orders. If Customer requires the use of a purchase order or purchase order number, Customer (i) must provide the purchase order number at the time of purchase and (ii) agrees that any terms and conditions on a Customer purchase order will not apply to this Agreement and are null and void.
e. Late Fees. Except as prohibited by law, we may assess a late charge if you do not pay on time. You must pay these late charges when we bill you for them. The late charge will be the lesser of 1 percent of the unpaid amount each month or the maximum rate permitted by law. We may use a third party to collect past due amounts. You must pay for all reasonable costs we incur to collect any past due amounts, including reasonable attorneys’ fees and other legal fees and costs. We may suspend or cancel your Service if you fail to pay in full on time.
7. Suspension.
a. Of End User Accounts by Therefore. If an End User (i) violates this Agreement or (ii) uses the Services in a manner that Therefore reasonably believes will cause it liability, then Therefore may request that Customer suspend or terminate the applicable End User account. If Customer fails to promptly suspend or terminate the End User account, then Therefore may do so.
b. Security Emergencies. Notwithstanding anything in this Agreement, if there is a Security Emergency then Therefore may automatically suspend use of the Services. Therefore will make commercially reasonable efforts to narrowly tailor the suspension as needed to prevent or terminate the Security Emergency. “Security Emergency” means: (i) use of the Services that do or could disrupt the Services, other customers’ use of the Services, or the infrastructure used to provide the Services and (ii) unauthorized third-party access to the Services.
8. Term & Termination.
a. Term. This Agreement will remain in effect until Customer’s subscription to the Services expires or terminates, or until the Agreement is terminated.
b. Termination for Breach. Either Therefore or Customer may terminate this Agreement if: (i) the other party is in material breach of the Agreement and fails to cure that breach within 30 days after receipt of written notice or (ii) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within 90 days.
c. Effects of Termination. If this Agreement terminates: (i) the rights granted by Therefore to Customer will cease immediately (except as set forth in this section); (ii) Therefore may provide Customer access to its account at then-current fees so that Customer may export its Stored Data; and (iii) after a commercially reasonable period of time, Therefore may delete any Stored Data relating to Customer’s account. The following sections will survive expiration or termination of this Agreement: 2(e) (Third Party Requests), 5 (Intellectual Property Rights), 6 (Fees & Payment), 8(c) (Effects of Termination), 9 (Indemnification), 10 (Disclaimers), 11 (Limitation of Liability), 12 (Disputes), and 13 (Miscellaneous).
9. Indemnification.
a. By Customer. Customer will indemnify, defend, and hold harmless Therefore from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of any claim by a third party against Therefore and its affiliates regarding: (i) Customer Data; (ii) Customer’s use of the Services in violation of this Agreement; or (iii) End Users’ use of the Services in violation of this Agreement.
b. By Therefore. Therefore will indemnify, defend, and hold harmless Customer from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of any claim by a third party against Customer to the extent based on an allegation that Therefore’s technology used to provide the Services to the Customer infringes or misappropriates any copyright, trade secret, U.S. patent, or trademark right of the third party. In no event will Therefore have any obligations or liability under this section arising from: (i) use of any Services in a modified form or in combination with materials not furnished by Therefore and (ii) any content, information, or data provided by Customer, End Users, or other third parties.
c. Possible Infringement. If Therefore believes the Services infringe or may be alleged to infringe a third party’s Intellectual Property Rights, then Therefore may: (i) obtain the right for Customer, at Therefore’s expense, to continue using the Services; (ii) provide a non-infringing functionally equivalent replacement; or (iii) modify the Services so that they no longer infringe. If Therefore does not believe the options described in this section are commercially reasonable then Therefore may suspend or terminate Customer’s use of the affected Services (with a pro-rata refund of prepaid fees for the Services).
d. General. The party seeking indemnification will promptly notify the other party of the claim and cooperate with the other party in defending the claim. The indemnifying party will have full control and authority over the defense, except that: (i) any settlement requiring the party seeking indemnification to admit liability requires prior written consent, not to be unreasonably withheld or delayed and (ii) the other party may join in the defense with its own counsel at its own expense. THE INDEMNITIES ABOVE ARE THEREFORE AND CUSTOMER’S ONLY REMEDY UNDER THIS AGREEMENT FOR VIOLATION BY THE OTHER PARTY OF A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS.
10. Disclaimers.
THE SERVICES ARE PROVIDED “AS IS.” TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, NEITHER CUSTOMER NOR THEREFORE AND ITS AFFILIATES, SUPPLIERS, AND DISTRIBUTORS MAKE ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY WARRANTY THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF HARMFUL COMPONENTS, THAT THE CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, OR NON-INFRINGEMENT. CUSTOMER IS RESPONSIBLE FOR MAINTAINING AND BACKING UP ANY STORED DATA.
11. Limitation of Liability.
a. Limitation on Indirect Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT FOR THEREFORE OR CUSTOMER’S INDEMNIFICATION OBLIGATIONS, NEITHER CUSTOMER NOR THEREFORE AND ITS AFFILIATES, SUPPLIERS, AND DISTRIBUTORS WILL BE LIABLE UNDER THIS AGREEMENT FOR (I) INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR (II) LOSS OF USE, DATA, BUSINESS, REVENUES, OR PROFITS (IN EACH CASE WHETHER DIRECT OR INDIRECT), UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, WARRANTY, NEGLIGENCE OR OTHERWISE, EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
b. Limitation on Amount of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, THEREFORE’S AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE LESSER OF US$10,000 OR THE AMOUNT PAID BY CUSTOMER TO THEREFORE FOR THE SERVICES HEREUNDER DURING THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY. SOME STATES DON’T ALLOW THE TYPES OF LIMITATIONS IN THIS SECTION, SO THEY MAY NOT APPLY TO CUSTOMER.
12. Disputes.
a. Informal Resolution. Therefore wants to address your concerns without resorting to a formal legal case. Before filing a claim, each party agrees to try to resolve the dispute by contacting the other party through the notice procedures in section 12(e). If a dispute is not resolved within 30 days of notice, Customer or Therefore may bring a formal Arbitration proceeding.
b. Agreement to Arbitrate. Customer and Therefore agree to resolve any claims relating to this Agreement or the Services through final and binding arbitration, except as set forth below. The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules. The arbitration will be held in Raleigh, NC, or any other location both parties agree to in writing.
c. Exception to Agreement to Arbitrate. Either party may bring a lawsuit in the federal or state courts of Wake County, North Carolina solely for injunctive relief to stop unauthorized use or abuse of the Services or infringement of Intellectual Property Rights without first engaging in the informal dispute notice process described above. Both Customer and Therefore consent to venue and personal jurisdiction there.
d. NO CLASS ACTIONS. Customer may only resolve disputes with Therefore on an individual basis and will not bring a claim in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed.
13. Miscellaneous.
a. Terms Modification. Therefore may revise this Agreement from time to time and the most current version will always be posted on the Therefore website. If a revision, in Therefore’s sole discretion, is material, Therefore will notify Customer (by, for example, sending an email to the email address associated with the applicable account). Other revisions may be posted to Therefore’s blog or terms page, and Customer is responsible for checking such postings regularly. By continuing to access or use the Services after revisions become effective, Customer agrees to be bound by the revised Agreement. If Customer does not agree to the revised Agreement terms, Customer may terminate the Services within 30 days of receiving notice of the change.
b. Entire Agreement. This Agreement, including Customer’s invoice and order form, constitutes the entire agreement between Customer and Therefore with respect to the subject matter of this Agreement and supersedes and replaces any prior or contemporaneous understandings and agreements, whether written or oral, with respect to the subject matter of this Agreement. If there is a conflict between the documents that make up this Agreement, the documents will control in the following order: the invoice, the order form, the Agreement.
c. Governing Law. THE AGREEMENT WILL BE GOVERNED BY NORTH CAROLINA LAW EXCEPT FOR ITS CONFLICTS OF LAWS PRINCIPLES. The parties specifically exclude from application to these Terms the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act.
d. Severability. Unenforceable provisions will be modified to reflect the parties’ intention and only to the extent necessary to make them enforceable, and the remaining provisions of the Agreement will remain in full effect.
e. Notice. Notices must be sent via first class, airmail, or overnight courier and are deemed given when received. Notices to Customer may also be sent to the applicable account email address and are deemed given when sent. Notices to Therefore must be sent to Therefore Corporation GmbH, Wiener Straße 2/2, 2340 Mödling, Austria, with a copy to the Legal Department.
f. Waiver. A waiver of any default is not a waiver of any subsequent default.
g. Assignment. Customer may not assign or transfer this Agreement or any rights or obligations under this Agreement without the written consent of Therefore. Therefore may assign, transfer, or otherwise dispose its rights and obligations under this contract, in whole or in part, at any time without notice. Any other attempt to transfer or assign is void.
h. No Agency. Therefore and Customer are not legal partners or agents, but are independent contractors.
i. Force Majeure. Except for payment obligations, neither Therefore nor Customer will be liable for inadequate performance to the extent caused by a condition that was beyond the party’s reasonable control (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance).
j. No Third-Party Beneficiaries. 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.
k. Export Restrictions. The export and re-export of Customer Data via the Services may be controlled by the United States Export Administration Regulations or other applicable export restrictions or embargo. The Services may not be used in Cuba; Iran; North Korea; Sudan; or Syria or any country that is subject to an embargo by the United States and Customer must not use the Services in violation of any export restriction or embargo by the United States or any other applicable jurisdiction. In addition, Customer must ensure that the Services are not provided to persons on the United States Table of Denial Orders, the Entity List, or the List of Specially Designated Nationals. (see the U.S. Commerce Department’s compliance list at http://www.bis.doc.gov/complianceandenforcement/liststocheck.htm). You represent and warrant that you’re not on any of those lists or under the control of or an agent for anyone on those lists or the entities listed above.
Therefore DMCA Policy
Therefore (“Therefore”) respects the intellectual property rights of others and expects its users to do the same. In accordance with the Digital Millennium Copyright Act of 1998, the text of which may be found on the U.S. Copyright Office website at http://www.copyright.gov/legislation/dmca.pdf, Therefore will respond expeditiously to claims of copyright infringement committed using the Therefore service and/or the Therefore website (the “Site”) if such claims are reported to Therefore’s Designated Copyright Agent identified in the sample notice below. We reserve the right to delete or disable content alleged to be infringing and terminate accounts of repeat infringers.
If you are a copyright owner, authorized to act on behalf of one, or authorized to act under any exclusive right under copyright, please report alleged copyright infringements taking place on or through the Site by completing the following DMCA Notice of Alleged Infringement and delivering it to Therefore’s Designated Copyright Agent. Upon receipt of Notice as described below, Therefore will take whatever action, in its sole discretion, it deems appropriate, including removal of the challenged content from the Site.
DMCA Notice of Alleged Infringement (“Notice”)
1. Identify the copyrighted work that you claim has been infringed, or – if multiple copyrighted works are covered by this Notice – you may provide a representative list of the copyrighted works that you claim have been infringed.
2. Identify the material or link you claim is infringing (or the subject of infringing activity) and to which access is to be disabled, including at a minimum, if applicable, the URL of the link shown on the Site or the exact location where such material may be found.
3. Provide your company affiliation (if applicable), mailing address, telephone number, and, if available, email address.
4. Include both of the following statements in the body of the Notice:
* “I hereby state that I have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law (e.g., as a fair use).”
* “I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of, the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed.”
5. Provide your full legal name and your electronic or physical signature.
Deliver this Notice, with all items completed, to Therefore’s Designated Copyright Agent:
Copyright Agent
Therefore Corporation GmbH
Wiener Straße 2/2
2340 Mödling, Austria
copyright@Therefore.net
Therefore Acceptable Use Policy
Therefore Software and Services are used around the world, and we’re proud of the trust placed in us. In exchange, we trust you to use our services responsibly.
You agree not to misuse the Therefore services (“Services”). For example, you must not, and must not attempt to do the following:
* use the Services to harm others or the Services
* probe, scan, or test the vulnerability of any system or network;
* breach or otherwise circumvent any security or authentication measures;
* access, tamper with, or use non-public areas or parts of the Services, or shared areas of the Services you haven’t been invited to;
* interfere with or disrupt any user, host, or network, for example by sending a virus, overloading, flooding, spamming, or mail-bombing any part of the Services;
* access or search the Services by any means other than our publicly supported interfaces (for example, “scraping”);
* send unsolicited communications, promotions or advertisements, or spam;
* send altered, deceptive or false source-identifying information, including “spoofing” or “phishing”;
* promote or advertise products or services other than your own without appropriate authorization;
* abuse Therefore referrals or promotions to get more storage space than deserved;
* abuse the Services in a manner that circumvents their storage space limits;
* sell the Services or Services accounts via unauthorized channels;
* use automated or other means to create accounts in bulk or to access the Services other than by using our official interface and/or APIs;
* publish or share materials that are unlawfully pornographic or indecent, or that advocate bigotry, religious, racial or ethnic hatred;
* violate the law in any way including storing, publishing or sharing material that’s fraudulent, defamatory, misleading, or that violates the privacy or infringes the rights of others.
Therefore Privacy Policy
Provisions concerning data protection may be found in our separate Customer Privacy Notice, which is also retrievable under our website www.therefore.net.
Contact
Have questions or concerns about Therefore, our Services and privacy? Contact us at privacy@therefore.net