SERVICES AGREEMENT
PLEASE READ THIS SERVICES AGREEMENT CAREFULLY BEFORE USING ANY OF THE SERVICES (AS DEFINED BELOW) OR OFFERED BY OR ON BEHALF OF THE COMPANY (AS DEFINED BELOW) OR ITS AFFILIATES. IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, DO NOT USE THE SERVICES.
This Services Agreement (the “Agreement“, as modified from time to time in accordance with the terms of this Agreement) is a legal agreement between You (“Customer”, “You”, “Your”) and Company (each a “party” and collectively the “parties”) and defines the terms and conditions under which You are allowed to use the Services (as defined below).
This Agreement takes effect on the earliest of You: 1) executing or electronically accepting an Ordering Document referencing this Agreement; or 2) using the Services (the earliest of the foregoing being the “Effective Date”). If You enter into this Agreement or acquire the Services on behalf of an entity, You represent and war-rant that You have the authority to accept this Agreement on the entity’s behalf.
In order to use the Services, You must:
- be at least 18 years old;
- complete the registration process;
- agree to this Agreement; and
- provide true, complete, and up to date contact information.
By using the Services, You represent and warrant that You meet all the requirements listed above. Company may refuse to provide You with the Services, suspend or close Your account, and change eligibility requirements at any time in accordance with the terms of this Agreement.
1. DEFINITIONS.
In addition to terms defined elsewhere in this Agreement, the following definitions will apply to capitalized words in this Agreement:
- “Affiliate” of a party means any entity that directly or indirectly controls, is controlled by, or is under common control of that party. “Control,” for purposes of this definition, means direct or indirect owner-ship or control of more than 50% of the voting interests of the entity or the right to receive more than 50% of the profits or earning of the entity.
- “API Connector/Integration” means any Web-based, on-demand and/or downloadable software that permits the connection and/or interoperation of a third party service/application with the Services.
- “Beta Features” mean services and/or features available to Users for use which are still in their beta stage and have not been fully tested.
- “Company” means the entity listed on an Ordering Document that references this Agreement.
- “Customer” shall also cover the word “Client” defined in any other contractual documentation in force between Customer and Company.
- “Customer’s Account” means the Web-based account provided by Company to Customer that enables Users to use the Subscription Services which is accessible to Users via usernames and pass-words created and/or assigned by Customer.
- “Customer Content” means, excluding the Services, any and all information, data, text, software, photographs, graphics, video, messages, tags and/or other materials and content, that Users post, upload, share, submit, store, generate or otherwise provide or make available through or using the Services.
- “Custom Works” means, any custom designs, projects, or other works, including Deliverables, created by Company for, or on behalf of, Customer by Company; provided Custom Works specifically exclude the Services, Generic Tools, and any Pre-Existing IP.
- “Deliverables” means any outputs specifically defined in an SOW and characterized as “Deliverables” that will be provided by Company to Customer, provided Deliverables expressly exclude the Services, Generic Tools, and any Pre-Existing IP.
- “Generic Tools” means coding, programming techniques, designing techniques, architecture, trade secrets, methodology, APIs, functions, applications, knowledge, experience, skills, templates, other know-how and related Intellectual Property Company uses to provide the Services.
- “Intellectual Property Rights” means any and all patents, inventions, copyrights, moral rights, trademarks, domain names, trade secrets, know-how, software, and any other form of intellectual property and/or proprietary rights recognized in any jurisdiction whether existing now or acquired hereafter including any application or right to apply for registration of any of these rights.
- “Law(s)” means any and all applicable laws, regulations, statutes, rules, orders and other requirements of any governmental authority, including, where applicable, the Telephone Consumer Protection Act (“TCPA”), the Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of Personal Data and on the free movement of such data (the, “General Data Protection Regulation” or “GDPR“) and the Data Protection Act 2018 (“UK DPA”).
- “Order Term” means the period specified in an Ordering Document (including any renewals of the same) during which Users will have access to the Services.
- “Ordering Document” means any form provided by Company (including an electronic form or SOW), either executed by the parties that sets out the commercial terms of Customer’s purchase of the Ser-vices. All Ordering Documents will be deemed to incorporate, and will be subject to and governed by, this Agreement.
- “Pre-existing IP” means any Intellectual Property Rights in materials and/or information (including algorithms, methods, forms, software, software components in source or object code form) that is owned by, licensed to, or in the possession of Company either: 1) on or prior to the creation of the Custom Work; or 2) after the commencement of the Custom Work but not specifically created as a part of the Custom Work, including any enhancements, improvements, and modifications to any of the foregoing in 1) or 2), whether created prior to or after the Effective Date. Notwithstanding the foregoing, Pre-Existing IP expressly excludes the content, logos, graphics, photos, images or text of any type provided by Customer and included in Custom Works at Customer’s request.
- “Privacy Notice” means the notice that describes how data is processed by the Company that is posted on the Company’s website, as may be updated from time to time. If You access the Services from myemma.com, then Privacy Notice shall mean the Privacy Notice available at myemma.com/legal/privacy-notice/. If You access the Services from sailthru.com, then Privacy Notice shall mean the Privacy Statement available at sailthru.com/legal/privacy-statement/. If You access the Services from selligent.com, then Privacy Notice shall mean the Privacy Policy available at selligent.com/privacy-policy/. If You access the Services from vutu.re, then Privacy Notice shall mean the Privacy Notice available at vutu.re/privacy/.
- “Professional Services” means services, other than the Software, provided by Company staff including, Specialized Support Services, onboarding services, support services, provision and/or creation of any Custom Works, and /or Customer-specific customizations.
- “Services” means the Software, Professional Services, Pre-Existing IP, Statistical Data, products, services, applications, tools and other resources provided or made available by Company and/or its Subcontractors, including any applicable support services, manuals, documentation and related material, and all related service names, logos, design marks, slogans, and all other material comprising the Software, Professional Services, and Pre-Existing IP, but excluding any Customer Content and Custom Works.
- “Software” means the Subscription Services, and any software provided by Company and/or its Sub-contractors, including software development kits, other software code supplied by Company to Customer that allows for integration of the Services into Customer’s websites or mobile applications, and any related updates or modifications provided by Company from time to time.
- “Specialized Support Services” means (i) projects involving excessive or non-standard involvement by Company staff as determined by Company in its sole discretion; and/or (ii) projects requiring functionality that is not available via the User interface.
- “Statement of Work” or “SOW” means a document entitled “SOW” or “Statement of Work” that: 1) expressly incorporates this Agreement; 2) is issued or provided by Company; and 3) executed by the parties.
- “Statistical Data ” means aggregated and anonymized statistical and performance information based on and/or related to Customer’s use of the Services, which does not contain any personal data and is compiled using a sample size large enough to ensure the underlying data cannot be attributed to Customer.
- “Subcontractor” means a service provider engaged by Company that provides a part of the Services.
- “Subscriber” or “Contact” (used interchangeably in this Agreement and the incorporated documents) means, other than Users, any identified or identifiable natural person: 1) whose information is stored, transmitted, or otherwise ‘processed’ (as defined by the GDPR) via the Services by Customer; and/or 2) to whom Customer sends, transmits, or otherwise engages with via the Services.
- “Subscription Plan” means the subscription type (including applicable volume limits) chosen by the Customer on an Ordering Document which sets out the base set of Services ordered by the Customer. Different Subscription Plans have different Services associated with them.
- “Subscription Services” means the web-based application(s) available to the Customer.
- “Third Party Services” means, except for Subcontractors, any software, products, tools, applications, or services (including, where applicable, third party platforms such as Twitter, Facebook, LinkedIn, Instagram, and other social networking sites), that are connected to the Services by Customer (or by Company at Customer’s direction) may be used in connection with the Services that are not owned by Company or its Affiliates.
- “User” means any person, other than Company employees or agents engaged in providing Professional Services to Customer, accessing and/or using the Services through Customer’s Account.