Last Updated: February 7, 2018 1:30 pm PST
Welcome to Folloze.com (the “Site”). We are glad you are here and want you to understand what you can expect from us. Folloze, Inc. (“Folloze”, “we”, “us”, “our”) provides various products, tools and services through our Site and mobile and/or desktop applications (collectively, the “Services”) as part of our online platform that enables users to curate, organize and share information, documents, links, files and other digital content with other users within and outside of their organizations.
These Terms of Service (“TOS”) are effective and entered into as of the earlier of the effective date of the agreement into which they are incorporated by reference or any Order for Folloze’s Platform and/or Services (each as defined below) into which these TOS shall be deemed incorporated by this reference (“Effective Date”) by and between Folloze, Inc., a Delaware corporation having its principal place of business at 1820 Gateway Drive, Suite 330, San Mateo, California 94404, U.S.A. (“Folloze”) and the party entering into such agreement or placing such Order (“Customer”).
Whereas, Folloze is engaged in the business of providing its proprietary software-as-a-service platform and related services to empower its customers to organize and display information, documents, videos, links and other digital content in an engaging manner via customer-created and Folloze-hosted microsites, also known as boards, to share such boards with customer-selected invited guests and to evaluate through real-time analytics the guests’ interactions with and responses to such content; and Whereas, Customer desires to utilize Folloze’s platform, and may from time to time request Folloze’s related services.
Now therefore, in consideration of the foregoing, the mutual promises and covenants set forth herein, and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties agree as follows:
1. Definitions. For purposes of this TOS:
1.1 “Authorized User” means each individual natural person (e.g., Customer’s employees or contractors) whom Customer authorizes to access and use Customer’s Folloze account.
1.2 “Board” means a Customer-created and Folloze-hosted microsite displaying Customer’s Content.
1.3 “Content” means any and all text, documents, images, photographs, drawings, graphics, videos, audio recordings, links, data, computer files and any other information, materials or content that Customer posts, uploads, submits, links, stores, shares, e-mails, transmits, publishes, displays or otherwise makes available through or utilizes with the Folloze Platform and/or Services.
1.4 “Guest” means a Customer-selected invited end-recipient of or visitor to a Board within and/or outside of Customer’s organization.
1.5 “Guest Data” means any data or other information generated by the Platform for Customer with respect its Guests’ interaction with Customer’s Content.
1.6 “Intellectual Property Rights” means any and all copyrights, patents, trade secrets, mask works, moral rights, techniques, processes, designs, know-how, formula, good will and other intellectual property rights arising by operation of law, contract, license, or otherwise, and all registrations, initial applications, renewals, extensions, continuations, divisions or reissues of such rights, anywhere in the world.
1.7 “Order” means a specific request placed by Customer, as documented on a Folloze-provided or Folloze-approved order form, invoice or trial account registration form or via a Folloze-designated process (e.g., through Folloze’s online subscription or online payment process by which, in each case, Customer agrees to subscribe to Folloze’s Platform), for Customer to be able to use the Folloze Platform with respect to its own Content, and including any related pricing, terms, timeframes and responsibilities set forth therein.
1.8 “Platform” means Folloze’s proprietary software-as-a-service platform and any other or ancillary software, products, tools, documentation and Technology identified on an Order, an SOW and/or otherwise made available by Folloze to Customer including any offline components and any deliverable pursuant to a Service.
1.9 “Services” means the engineering, consulting, customization and/or other services Folloze performs on Customer’s behalf as set forth with relevant specifications in a SOW. Any deliverable related to a Service shall be deemed part of the licensed Platform, except as may otherwise be expressly stated in the applicable SOW.
1.10 “SOW” means a statement of work signed by both parties setting forth certain Services to be performed by Folloze and the parties’ respective rights and obligations and any related specifications, pricing, terms, timeframes and responsibilities.
1.11 “Technology” means proprietary technology, including software tools, hardware designs, development tools and platforms, algorithms, software (in source and object forms including any updates or upgrades), user interface designs, architecture, class libraries, objects and documentation (both printed and electronic), data, network designs, know-how, trade secrets and any related Intellectual Property Rights embodied therein throughout the world and also including any derivatives, improvements, enhancements or extensions thereof.
1.12 “Territory” means that non-exclusive geographic area described in the applicable Order or SOW, or if none described, then worldwide.
1.13 “Third-Party Services” means third-party websites, products, services, social networking services, and advertisements for third parties.
2.1 Account Registration. Folloze offers several types of accounts (e.g., trial, standard and premium) with varying features, functionalities and number of Authorized Users and Guests and varying fees. Upon Folloze’s acceptance of an Order, Folloze will establish Customer’s account, or modify Customer’s existing account if applicable, according to the type of account and other specifications identified in such Order. This TOS applies to each type of account, and Folloze reserves the right to make available other types of accounts from time to time. Additional terms relating to specific types of accounts may appear as part of the account registration or modification process. By completing the account registration or modification process, Customer consents to any and all such additional terms, and all such terms are incorporated into this TOS by reference. If Customer does not agree to such additional terms, Customer must immediately cancel the applicable Order. Customer will identify Authorized Users on the applicable Order or during the account registration or modification process, and may contact Folloze to subsequently reassign an Authorized User.
2.2 Authorized Users. Folloze will provide Customer with account access credentials (e.g., user IDs, passwords or other login information) for its Authorized Users. Customer shall not permit anyone besides its Authorized Users to use Customer’s account or access credentials. Customer will inform its Authorized Users of the terms of this TOS, and Customer is solely responsible for its Authorized Users and all activities occurring under its account, including but not limited to maintaining the confidentiality of Customer’s access credentials. Customer shall notify Folloze immediately of any unauthorized use or suspected unauthorized use of Customer’s account. Folloze’s Platform is directed towards adults and use of the Platform by persons under the age of 18 is not permitted. Folloze reserves the right to suspend Customer’s account or an Authorized User’s access without liability if in Folloze’s sole determination any of Customer’s Authorized Users violates any of the terms of this TOS.
2.3 Acceptable Use Policy. The following types of Content and/or use of the Platform is illegal or prohibited by Folloze. Folloze reserves the right to investigate and take appropriate legal action against anyone who, in Folloze’s sole discretion, violates this provision or any other provision of the TOS, including without limitation, removing the offending Content from the Platform, suspending or terminating the account of such violators and reporting violations to the law enforcement authorities. Customer shall not to use the Platform to:
(a) upload or distribute any Content that is unlawful, harmful, threatening, abusive, tortious, defamatory, libelous, pornographic, vulgar, obscene, malicious, invasive of another’s privacy, hateful, or racially, ethnically, or similarly disparaging;
(b) perform illegal or unlawful acts in any way or violate any applicable local, state, national or international law and any regulations having the force of law;
(c) “stalk” or otherwise harass another;
(d) incite violence in any way;
(e) harm minors in any way;
(f) upload or distribute any Content that Customer does not have a right to make available under any law or under contractual, employment or fiduciary relationships, including but not limited to content that infringes or violates any patent, copyright, trademark, trade secret, moral, privacy, publicity, confidentiality or other rights of any party;
(g) communicate in a manner that is prohibited by applicable law or regulation, including but not limited to those relating to unsolicited bulk or commercial email such as “spam” or “pyramid schemes”;
(h) attempt to obtain sensitive personal data about any person regarding financial accounts (e.g., bank, credit, debit account numbers), government issued identification (e.g., Social Security, driver’s license, passport numbers), health status (physical or mental), racial or ethnic origin or other information that is protected by law or regulation;
(i) impersonate any person or entity, or falsely state or otherwise misrepresent Customer’s affiliation with a person or entity;
(j) forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Platform;
(k) upload any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
(l) disrupt the normal flow of dialogue, or otherwise act in a manner that negatively affects other customers’ or Guests’ ability to use the Platform;
(m) intentionally or unintentionally interfere with or disrupt the Platform or servers or networks connected to the Platform, or disobey any requirements, procedures, policies or regulations of networks connected to the Platform, including using any device, software or routine to bypass robot exclusion headers;
(n) attempt to access or search the Platform for other Folloze customers’ content, to scrape or download other customers’ content, or otherwise use, upload content to, or create new links, reposts, or referrals in the Platform through the use of any engine, software, tool, agent, device or mechanism (including automated scripts, spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Folloze or other generally available third-party web browsers;
(o) use the Platform, content or any information derived from them, including but not limited to by deconstruction, decompiling or reverse engineering, to engage in competition with Folloze, to defame or disparage Folloze, or to otherwise interfere with Folloze’s business; and/or
(p) obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Platform.
2.4 Platform License. Upon the start date referenced in a Folloze-accepted Order or SOW (or if none or with respect to a Service deliverable, then upon delivery or access) and subject to the terms and conditions of this TOS and any payment if applicable, Folloze grants and will grant to Customer a limited, non-exclusive, non-transferable, non-sublicensable (except to contractors identified as Authorized Users working for or on behalf of Customer), revocable license in the Territory to access and use internally the Platform, for the duration of the term and by the number and/or identity of Authorized Users as set forth in the applicable Order or SOW, for its lawful and intended purposes, and to access, use, download, export, reproduce and distribute any Guest Data. Customer may permit one (1) or more contractors to utilize Customer’s license hereunder to the extent such contractor is acting on behalf of or for the benefit of Customer, is subject to terms at least as protective of Folloze’s rights as provided for herein, and Customer at all times shall be responsible for the action and inactions of its contractors. The above license expressly excludes any right to modify, make derivative works from (other than Boards as intended), publicly perform or display the Platform. To the extent permitted by law, Customer shall not attempt, and will use its best efforts to prevent its Authorized Users from attempting, to reverse engineer, decompile, deconstruct, disassemble, modify or create derivative works from, publicly perform or display or make available to unauthorized third parties the Platform, in whole or in part. Customer shall not remove any of Folloze’s indicia (e.g., “Powered by Folloze”) on any output from the Platform including Guest Data or Customer’s Boards. Unless otherwise provided in the applicable Order, any license to the Platform provided on a subscription basis (e.g., monthly, quarterly or annually) shall automatically renew subject to the attendant terms for successive subscription periods unless Customer provides Folloze with notice of cancellation during the time period specified in the applicable Order, or if none specified, then at least thirty (30) days prior to the end of the then-current license.
2.5 Invitations to Guests. After Customer has created one or more Boards, Customer may use Folloze’s Platform or any other means of communications (e.g., third-party email applications or social media) to invite Guests to view, and if applicable interact with, Customer’s Boards. Customer’s use of the Platform shall be in accordance with this TOS, and Customer’s use of any third-party means of communications or Third-Party Service shall be in accordance with their applicable terms and conditions. Customer is at all times solely in control of and responsible for choosing the Guests it invites to its Boards and for Customer’s interaction with its Guests through the Platform or otherwise. Customer shall obtain any necessary consents prior to sending an invitation to its Guests, and to inform them of, provide any necessary options for (e.g., “unsubscribe”, “opt-out”, “opt-in”) and receive any necessary consents for Customer’s interactions with its Guests through the Platform, including but not limited to the collection and use of the Guest Data. Customer’s invitations to and interactions with its Guests are solely between Customer and the Guests, and Customer releases and forever discharges Folloze from any such claims relating to Customer’s Guests. Customer agrees that Folloze will not be responsible for any loss or damage incurred as the result of any such interactions. Folloze is not obligated to become involved in any dispute between Customer and its Guests.
2.6 Customer’s Content. Customer retains any ownership rights it may have in and to, and Customer is solely responsible for, the Customer Content. Customer expressly agrees that Folloze is simply acting as a passive conduit for Customer to manage and distribute its Content through an online platform. Folloze reserves the right in its sole discretion to reject Customer’s Content for any reason (e.g., inaccuracies, inadequate technical quality or potential infringement on third party rights); however, Folloze’s allowance of Customer’s Content should not be construed as a determination of the accuracy or sufficiency thereof or Customer’s rights to use such Content. Customer chooses to whom to distribute its Content through the Platform, and Folloze is not responsible for and assumes no liability for Customer’s Guests’ use of Customer’s Content. Folloze does not regularly review, and assumes no liability for, Customer’s Content. However, anyone may report a concern to Folloze about any content available through the Platform by contacting us at email@example.com. Customer agrees to cooperate with Folloze in good faith with respect to any concern reported about Customer’s Content. Folloze reviews all concerns and reserves the right in its sole and absolute discretion to temporarily or permanently remove, block or otherwise disable access to any Content from the Platform for any reason or no reason either in response to a concern or otherwise; however, Folloze’s determination not to remove Customer’s Content after a reported concern should not be construed as a determination of Customer’s rights to and authority to use such Content and does not diminish or otherwise affect Customer’s indemnification obligations. Folloze also abides by the “Notice and Take Down” procedures as provided for by the U.S. Copyright Act and reflected in Folloze’s Copyright Policy which is posted on Folloze’s website and incorporated herein by reference.
2.7 Changes to Platform. Folloze reserves the right to modify, update, upgrade, and otherwise change the features and structure of the Platform; provided that Folloze may do so at any time in order to add functionalities, improve features, increase efficiency or compatibility and repair errors or make minor technical fixes, and Folloze will give reasonable notice to Customer and obtain Customer’s consent prior to implementing any changes that would substantially decrease functionality or eliminate material features. Folloze may elect to make certain upgrades or additional features available for an additional fee, which would require Customer’s prior consent. Folloze reserves the right to interrupt the operation of the Platform in order to perform maintenance thereof, to implement the above-described changes and as it reasonably believes it is required to do so by a legal or government authority. Folloze will endeavor to perform maintenance and implement changes at periods of lower usage across all of its customers.
2.8 Platform Support. Folloze will provide Customer the level of support for the Platform indicated on the applicable Order. Customer may obtain additional support or services beyond those included in Folloze’s standard Platform packages (e.g., customization, assistance building Boards), by entering into a SOW.
2.9 Security. Folloze works hard to maintain the security of its Platform and implements security measures consistent with industry practice. However, as with all information transmitted or accessed through the Internet including by e-mail, there are inherent security limitations which Folloze cannot and will not rectify and for which Folloze will not be liable. No measure of security is foolproof, so Customer should keep this in mind when deciding the information and Content that Customer chooses to provide through the Platform. It is Customer’s responsibility to safeguard all passwords, user IDs and other access credentials provided by Folloze. Customer shall notify Folloze of any security breach or unauthorized use of its account, but Folloze also appreciates Customer’s help in notifying Folloze at firstname.lastname@example.org of any misuse of the Platform or vulnerabilities therein should Customer encounter them.
2.10 International Use. Folloze provides and operates the Platform from its facilities in the United States. If Customer accesses the Platform from outside of the United States, Customer does so at its own risk, thereby expressly consent to the transfer of its Guest Data and its Content to the United States and is solely responsible for compliance with applicable laws including intellectual property laws, unsolicited communications laws, competition laws, advertising laws, obscenity, privacy and publicity laws, and laws governing export and import.
3.1 Statements of Work. Customer may, but is not required to, request Folloze to provide specified Services by entering into one (1) or more mutually agreeable SOWs. Each SOW shall become effective on the last date signed by either party, and shall remain in effect until such SOW is terminated pursuant to Section 8.2 (Termination), the SOW automatically expires according to its provisions, or all obligations under the applicable SOW have been accepted pursuant to Section 4.4 (Acceptance) at which point such SOW shall automatically expire. Any changes proposed by one party to any term in a SOW may only be made with the other party’s prior written consent. The parties agree to negotiate in good faith an equitable adjustment to any fees due and any other terms that may need to be modified as a result of such change and at the time of any such change. In the event a practical matter regarding execution of the Services (e.g., timing, logistics) has not been addressed in the applicable SOW, Folloze shall be entitled to exercise its reasonable discretion with regard to the same.
3.2 Delivery. Folloze will provide or otherwise make available to Customer the Services and related deliverables identified on an SOW according to the method and schedule specified therein, or if none is so specified, then by reasonable means; provided that Folloze’s time for performance shall be enlarged, if and to the extent reasonably necessary, in the event that: (a) Customer fails to submit information, instructions, approvals or any other required element in the prescribed form or in accordance with the agreed upon schedule; or (b) Customer fails to provide any materials, personnel or performance called for by the SOW, and the same is reasonably necessary for Folloze’s performance thereunder. Folloze will notify Customer of the estimated impact on its delivery schedule, if any.
3.3 Services Generally. Folloze shall perform the Services in a professional and workmanlike manner, and Customer shall provide any additional materials or resources, if applicable, and pay the associated fees as specified in the applicable SOW.
4.1 Accurate Information. Customer represents and warrants that all information it provides in any Order, SOW and during an account registration or modification is true, accurate and complete, that Customer will maintain its truthfulness, accuracy and completeness, and that any person executing or submitting an Order or SOW is authorized to do so and bind Customer and that Folloze may rely on the same.
4.2 Terms. No non-negotiated, template terms purported to be added by Customer to an Order or SOW shall be effective (e.g., terms attached to or on the back of Customer’s form purchase order) and are hereby rejected, void and do not form a part of this TOS. In the event of conflict between any term in this TOS and any Order or SOW, the terms of this TOS shall govern, except in the limited circumstance where the parties have expressly identified by section number a term in this TOS that they both agree to modify pursuant to such Order or SOW, in which event such modification shall apply only with respect to that particular Order or SOW. Folloze may reject any Order or SOW prior to acceptance, for any or no reason. Each Order or SOW, upon its acceptance or execution by Folloze, is incorporated by reference into, is subject to the terms of, and forms part of this TOS.
4.3 Subcontractors. Folloze may use subcontractors, within and outside of the United States, to perform its obligations or exercise its rights hereunder, provided that no such use of subcontractors will relieve Folloze of its obligations, and Folloze shall be responsible and liable for its subcontractors’ actions and inactions as if they were Folloze’s own, and Customer expressly consents to Folloze’s transmission of the Content and any Guest Data and related data as reasonably necessary for such subcontractors’ performance with respect to this TOS.
4.4 Acceptance. The Platform (other than a Service deliverable) shall be deemed accepted by Customer upon Folloze providing or making the same available to Customer. Any deficiencies in the Platform shall be addressed pursuant to Folloze’s limited warranty and shall not affect the acceptance thereof. The Services and any deliverable shall be deemed accepted by Customer upon Folloze providing or making the same available to Customer, unless within seven (7) calendar days Customer contacts Folloze and details an error by Folloze with respect to the same. Folloze will use commercially reasonable efforts to work with Customer to correct any Folloze error, including but not limited to re-performing its Services to correct such an error. Customer will review any result of such effort and accept or reject the same in accordance with this Section 4.4 (Acceptance). This process shall repeat itself until each Service or deliverable is deemed accepted.
4.5 Requisite Technology. In some circumstances, Customer will need to have or procure certain ancillary technology (e.g., software, hardware, operating system, execution environment, Internet and telecommunication connectivity or other materials) in order to have the technical ability to receive, access, interact with and/or utilize the Folloze Platform and/or Services. It is Customer’ sole responsibility at its cost to procure and maintain any such ancillary technology, but known ancillary technology is set forth in the Platform description on Folloze’s website and/or applicable Order or SOW and Folloze will provide reasonable assistance in helping Customer to determine its technological needs.
4.6 No Source Code. Any software related to the Platform or Services will be accessible as software-as-a-service in Folloze’s execution environment in machine readable form or provided in object code only, and this TOS provides no access to or license to any source code, except if expressly provided for in an Order or SOW and then only with respect to such Order or SOW.
5.1 Customer’s Content. In order to provide Folloze with the legal authority to operate and improve the Platform and perform the Services, and subject to the terms of this TOS, Customer hereby grants and will grant to Folloze a non-exclusive, worldwide, transferable, royalty-free, sublicensable (through multiple tiers of sublicenses including but not limited to Folloze’s subcontractors) perpetual, irrevocable license under all Intellectual Property Rights throughout the world (including but not limited to copyrights, trademarks, trade secret, moral, publicity and privacy rights) to reproduce, store, distribute (through multiple tiers), modify (solely as reasonably necessary for technological purposes such as to resize for storage or transmission purposes but not to change the content thereof), publicly perform and display (per Customer’s instructions) and otherwise use the Customer Content submitted to Folloze as reasonably necessary for Folloze and its subcontractors to provide and enhance the Platform and provide the Services contemplated hereunder on Customer’s behalf and for Folloze to investigate and act upon any complaints regarding Customer’s Content. If Customer selects an option within the Platform or otherwise to establish a connection between the Platform and a compatible third-party vendor (e.g., email exchange or chat provider, Salesforce™), Customer thereby grant Folloze a non-exclusive, worldwide, transferable, royalty-free, sublicensable (through multiple tiers of sublicenses including but not limited to Folloze’s subcontractors) perpetual, irrevocable license under all Intellectual Property Rights throughout the world (including but not limited to copyrights, trademarks, trade secret, moral, publicity and privacy rights) to exchange, transfer, reproduce, distribute, modify (solely as reasonably necessary for technological purposes such as to reformat for communication purposes but not to change the content thereof), publicly display and perform Customer’s data (e.g., Customer’s account credentials, “contacts”) on Customer’s behalf with such vendor. Customer represents and warrants that it has the authority to grant the licenses herein. If Customer removes its Content from its Boards or closes its Folloze account, Customer’s Content may remain in Folloze’s archives for the purposes stated above, and although Customer’s Guests will no longer have access through Folloze to prior versions of Boards or any Boards upon closure of Customer’s account, Customer’s Content may continue to reside on its Guests’ servers to the extent Customer previously otherwise distributed its Content such as through an e-mail invitation. Upon termination or expiration of this TOS, Folloze may, but is not required to, retain Customer’s Content for archival purposes and to facilitate possible reactivation of Customer’s account at a later time.
5.2 Mutual Trademark License. Subject to the terms of this TOS, each party hereby grants to the other party a non-exclusive, non-transferable, royalty-free (unless otherwise agreed in writing in advance), personal, worldwide license for the duration of this TOS (or thereafter upon the other party’s consent) to use such party’s business name as set forth in the first sentence of this TOS and any logo, design or other business name such party chooses (but is not required) to provide to the other party (collectively, “Trademarks”) solely to identify that Customer is utilizing the Folloze Platform and to provide a link to the other party’s website; provided that, the other party will give the trademark owner reasonable advance notice to review and approve any proposed use of any logo or design, such approval not to be unreasonably withheld or delayed. Either party may substitute or supplement its Trademark(s) by providing at least five (5) business days’ notice to the other party, provided a clear and complete reproduction of the additional or revised Trademark(s) accompanies such notice. Each party agrees to maintain the quality of its products and services, and any modifications thereto, at a level that is at least commensurate with the quality of such party’s products and services as of the Effective Date of this TOS. Each party shall maintain the other party’s Trademarks exactly as provided by the owner thereof and no party shall make any alteration of another party’s Trademarks. Each party shall supply the other party with suitable specimens of its use of the other party’s Trademark(s) upon reasonable notice, and shall remedy any deficiencies in its use of any of the Trademark(s) within thirty (30) days’ notice from the other party. Except as prohibited by law, each party agrees that it will do nothing inconsistent with the other party’s ownership of the Trademark(s), including but not limited to challenging any registration of the other party’s Trademark(s) or filing any registration application for the same. Each party agrees that its use of the other party’s Trademark(s) shall inure to the benefit of and be on behalf of the other party. Any goodwill arising out of a party’s use of the other party’s Trademark(s) shall inure solely to the benefit of the owner of such Trademark(s). The owner of the Trademark(s) shall have the sole responsibility of protecting and enforcing its proprietary rights in its Trademarks. Either party may terminate its license under this Section to the other party upon notice to the other party without affecting the remainder of this TOS.
5.3 Feedback. If Customer chooses to submit comments, ideas or suggestions to Folloze about the Platform or Services (collectively, “Feedback”), by doing so Customer thereby irrevocably assigns to Folloze any and all right, title and interest Customer may have in and to such Feedback. To the extent such rights are not assignable, Customer thereby grants Folloze an exclusive, worldwide, transferable, royalty-free, sublicensable (through multiple tiers of sublicenses including but not limited to Folloze’s subcontractors) perpetual, irrevocable license under all Intellectual Property Rights throughout the world to use such Feedback in any manner and media whatsoever, and Customer irrevocably waives and agrees never to assert any claim against Folloze regarding such Feedback. Any Feedback is in consideration of Customer’s access to the Platform and Services, and Customer shall not be entitled to any monetary compensation or to be credited for such Feedback.
6.1 Customer’s Property. Customer is responsible for and retains any and all right, title and interest it may have in and to the Customer Content and any Customer Confidential Information (as defined in Section 7.1), Technology or other materials it may provide to Folloze (Customer Content and other materials collectively “Customer Property”).
6.2 Folloze’s Property. Folloze and/or its licensors retains any and all right, title and interest in and to the Platform, Services, any Technology related thereto and any suggestions or feedback regarding the Platform and/or Services, any Folloze Confidential Information or other materials Folloze may provide or develop in the course of making the Platform available and/or performing the Services contemplated hereunder unless otherwise expressly set forth in the applicable Order or SOW, including any Intellectual Property Rights in and to any of the foregoing (collectively, “Folloze’s Property”); Customer hereby irrevocably assigns to Folloze any right, title or interest it may have in or to the same, other than any non-exclusive license Customer has received to a Platform pursuant to this TOS. To the extent Customer cannot assign to Folloze any right, title and interest in and to the same, Customer grants and will grant to Folloze an exclusive, royalty-free, fully paid up, transferable (in whole or in part), irrevocable, perpetual worldwide license (with rights to sublicense through multiple tiers of sublicenses) under all Intellectual Property Rights to use and practice such non-assignable rights, title and interest. To the extent Customer cannot assign nor license to Folloze any such right, title or interest, Customer irrevocably waives and agrees never to assert such non-assignable and non-licensable right, title and interest against Folloze, its licensors or any of Folloze’s successors in interest to such non-assignable and non-licensable rights. Except as expressly provided in this TOS, Folloze and its licensors do not grant any other express or implied rights to use the Platform or Services, and Folloze reserves all rights not expressly granted.
7.1 Definition. “Confidential Information” means information that one party provides to the other hereunder which, if in written form, is marked “confidential” or with a similar legend by the disclosing party before being furnished to the other, or if disclosed orally or visually is identified as such prior to disclosure and confirmed in writing to the receiving party within thirty (30)
party in remedying any such unauthorized disclosure. A party may disclose the other party’s Confidential Information pursuant to a requirement of a governmental agency or law so long as such party provides the other party with notice of such required disclosure prior to any such disclosure and such party uses commercially reasonable efforts to prevent the disclosure, or if disclosed, the Confidential Information is disclosed only for the limited purpose specified. The obligations of confidentiality and restricted use set forth in this Section 7 (Confidentiality) shall survive the termination of this TOS for a period of five (5) years provided that any Confidential Information relating to Folloze’s Platform, including but not limited to any software as a service, s
8.1 Fees and Billing. Customer shall pay Folloze the fees any other form of remuneration specified in the applicable Order or SOW according to the price, duration, payment schedule and terms as set forth therein. Unless otherwise stated in the applicable Order or SOW, any fees relating to access to the Folloze Platform are due in advance, and any fees related to Services are due within twenty-one (21) days of Folloze’s invoice therefor. All fees must be paid in U.S. dollars.
8.2 Fee Changes. Folloze reserves the right to change its price list for its Platform at any time, and any increase shall apply as of the next Order, or to the next applicable subscription period for an existing Order upon at least sixty (60) days prior notice, and no price change shall apply retroactively. Customer may upgrade its account (e.g., to add more Authorized Users or Guests) by contacting Folloze; prorated fees will apply until the end of the existing subscription period, and the upgraded rate will apply to any subsequent renewal period.
8.3 Late Payment. If Customer fails to remit any payment when due, interest shall accrue at the rate of one and one-half percent (1.5%) per month or the highest rate permitted by law, whichever is lower, from the original due date until paid. Access to the Folloze Platform and performance of Services will at all times be subject to the approval of Folloze’s credit department and Folloze may at any time decline to make available the Folloze Platform and Services except upon receipt of payment or upon terms and conditions or security satisfactory to Folloze. Folloze may suspend access to the Platform or performance of Services or terminate this TOS and/or any Order or SOW should Customer fail to remit payment more than thirty (30) days after the applicable due date. Customer shall be responsible for any and all costs incurred by Folloze in the collection of unpaid invoices, including but not limited to, collection and filing costs and reasonable attorneys’ fees.
8.4 Taxes. Fees are exclusive of any taxes, duties or tariffs. All taxes, duties or tariffs attributable to this TOS (except taxes relating to Folloze’s income) including but not limited to sales, use, value-added, excise, franchise or any other tax assessed by local, state or federal authorities, shall be borne by Customer. Customer shall reimburse Folloze’s for any such taxes, duties or tariffs paid by Folloze.
8.5 No Refunds. Except as may be expressly stated in the applicable Order or SOW, Customer shall not be entitled to a refund of any fees or costs already paid to Folloze.
9.1 Term. The term of this TOS shall be from the Effective Date, and the term of any Order and any SOW shall be from the date accepted by Folloze or last executed respectively, until terminated by one party pursuant to Section 9.2 (Termination) (such periods together referred to as the “Term”; provided that if an Order or SOW contains an express date of expiration, such date shall control with respect to that Order or SOW, and provided further that Orders and SOWs existing as of the termination of this TOS shall be addressed according to Section 9.4 (Effect of Termination)).
9.2 Termination. Except for the continuing obligations set forth in Section 9.3 (Survival) and Section 9.4 (Effect of Termination), this TOS, may be terminated as follows:
(a) upon at least thirty (30) calendar days written notice by one party to the other party;
(b) upon written notice by one party of the other party’s failure to perform any material term of this TOS within thirty (30) calendar days after the non-defaulting party provides notice reasonably detailing such failure;
(c) upon Folloze’s written notice that Folloze has received repeated complaints that Customer’s use of the Platform or Service deliverables infringes the rights of any third party; or
(d) upon written notice by one party if the other party becomes the subject of a voluntary or involuntary petition in bankruptcy or any similar proceeding relating to insolvency, receivership or reorganization and if such petition or proceeding is not dismissed within sixty (60) calendar days of filing. If such proceeding is involuntary and is contested in good faith, this TOS shall terminate only after the passage of one hundred twenty (120) calendar days without the dismissal of such proceeding.
Individual Orders and/or SOWs may be terminated absent termination of this entire TOS for any of the foregoing reasons and for any other reason specified in the applicable Order or SOW and according to the procedure set forth therein; provided that any termination for convenience of an Order or SOW with respect to a recurring subscription (e.g., Platform license) shall in no event be effective prior to the end of the current subscription term. For trial Platform accounts, Folloze reserves the right to suspend Customer’s access, close Customer’s account and/or terminate this TOS at any time. Folloze also reserves the right, without liability, to suspend Customer’s access to Customer’s account or Customer and/or its Guests’ access to a particular Board to the extent and while Folloze is investigating any complaint it receives regarding Customer’s use of the Folloze Platform. Suspension of Customer’s account due to infringement of a third-party’s rights, or investigation thereof, shall not relieve Customer of any payment obligation.
9.4 Effect of Termination. The termination or expiration of this TOS or any SOW or Order shall not relieve a party from its obligation to pay any sums previously accrued and applicable interest. Notwithstanding any other provision of this TOS to the contrary, the termination of this TOS shall concurrently cancel any Order or SOW that Folloze has not accepted by the termination date, but shall have no effect on any Order or SOW that Folloze has accepted by such date; provided that:
(a) If Folloze terminates this TOS for any reason other than breach, then any unaccepted Order or SOW shall be deemed cancelled, and Customer may cancel, in its sole discretion, any accepted Order or SOW. If Folloze terminates this TOS due to Customer’s breach, then any Order or SOW submitted to Folloze by such termination date shall be deemed accepted by Folloze, but Folloze may cancel, in its sole discretion, any such Order or SOW.
(b) If Customer terminates this TOS for any reason other than breach, then any Order or SOW submitted to Folloze by such termination date shall be deemed accepted by Folloze, but Folloze may cancel, in its sole discretion, any such Order or SOW. If Customer terminates this TOS due to Folloze’s breach, then any unaccepted Order or SOW shall be deemed cancelled, and Customer may cancel, in its sole discretion, any accepted Order or SOW.
(c) Any surviving Order or SOW shall continue to be subject to the terms of this TOS, and (i) any Order shall automatically expire at the end of the then-current term, and (ii) any SOW shall automatically expire when all obligations thereunder have been accepted.
Subject to the foregoing, Folloze will continue to provide the Platform and Services, and Customer will continue to compensate Folloze according to the terms of this TOS, during any termination notice period unless otherwise mutually agreed upon by the parties in writing. Each party shall return or destroy, at its own expense and the other party’s instruction, any of the other party’s Confidential Information or other property within its possession, custody or control within thirty (30) calendar days of this TOS’s termination or expiration, subject to Folloze optional retention of Content per Section 5.1, and Folloze shall have the right to disable the Platform either remotely or otherwise. Folloze encourages Customer to retain copies or back-ups of its Content and its Guest Data as Customer may not be able to access them through Folloze’s Platform, and Customer agrees Folloze has no obligation to retain them, after the effective date of termination or expiration of this TOS or an applicable Order or SOW.
10.1 By Customer. Customer represents, warrants and covenants that:
(a) Customer has full legal power and authority to enter into this TOS, perform its obligations hereunder and grant the licenses hereunder including but not limited to Customer’s Content;
(b) Customer has the right to use any credit card(s) or other payment means used to initiate any transaction;
(c) Customer Property, when used in conformance with this TOS, will not infringe the U.S. copyright, privacy or publicity right or misappropriate the trade secret of any third party;
(d) Customer has the rights or necessary authorizations or consents to communicate its invitations and Customer Content to its Guests, and for Folloze to collect and provide to Customer the Guest Data, and that neither the foregoing nor Customer’s interaction with its Guests through Folloze’s Platform will violate any unsolicited communications rights (e.g., anti-SPAM laws) or privacy rights;
(f) Customer’s invitations and Content do not contain any materials (such as malicious software code or viruses) that may harm Folloze’s, its subcontractors’, other customers’ or Guests’ property;
(g) If Customer establishes a connection between the Folloze Platform and a compatible third-party vendor (e.g., email exchange or chat provider, Salesforce™) or request Folloze to do so, Customer has the right or necessary consent from the third-party vendor to do so;
(h) and Customer’s use of the Folloze Platform (except to the extent caused by Folloze) will at all times be in compliance with the terms of this TOS.
10.2 By Folloze.
(a) Folloze represents, warrants and covenants that: (i) it has full legal power and authority to enter into and perform its obligations hereunder and grant the licenses hereunder including but not limited to the Platform; (ii) the Platform and any deliverables resulting from performance of a Service, when used in conformance with this TOS, will not infringe the U.S. copyright or misappropriate the trade secret of any third party; (iii) it will use commercially reasonable efforts to correct any errors, inaccuracies, omissions or interruptions in the Platform or Services as necessary to prevent Customer from incurring any liability as a result of the same; and (iv) it is the owner or authorized licensee of the Platform.
(b) Folloze further warrants that, during the term of the applicable Order and/or SOW, the software portion of the Platform or any deliverable under the SOW will perform in substantial conformance with Folloze’s then-current applicable documentation.
(c) If a Platform or Service deliverable fails to comply with the limited warranty set forth above, Folloze shall, at its option and expense, repair or replace the applicable Platform or such deliverable with its functional equivalent, provide a workaround for the non-compliance, acquire for the Customer any necessary rights to continue to use the Platform or deliverable as contemplated; or refund on a pro-rata basis the fee paid by Customer for such Platform or for the then-current term or deliverable (following Customer’s return or certified destruction or non-use of the applicable Platform or deliverable) and Customer hereby agrees to cease all use of such affected Platform and/or deliverable. Folloze shall be obligated under its warranty only for non-conformities that are reproducible by Folloze in the execution environment. The foregoing sets forth Customer’s sole and exclusive remedies for a breach of warranty. The warranties set forth above shall not apply to: (i) the Platform or a deliverable that has been modified, repaired or altered, except by or at the direction of Folloze; (ii) the Platform or a deliverable that has not been maintained or utilized in accordance with the operating instructions supplied by Folloze or has been subjected to misuse, negligence, unauthorized attempts to repair, accident or other hazard; (iii) any product or service not provided by Folloze, including but not limited to data storage; (iv) any third-party hardware (whether or not provided by Folloze) which shall be subject to the manufacturer’s warranty, if any; (v) Customer’s negligence or other non-conformance with the terms or specifications contained in this TOS; and (vi) actions of a third party.
(d) Folloze shall give at least five (5) business days’ notice to Customer of any planned maintenance interruptions to the Platform (e.g., such notices may appear on Customer’s login page), and such interruptions shall not be deemed a breach of warranty. Customer may contact Folloze within two (2) business days of the planned maintenance interruption and Folloze will reasonably work with Customer to minimize the impact on Customer’s operations.
10.3 Third-Party Services. Folloze may provide links to Third-Party Services. Folloze also utilizes or accesses certain Third-Party Services as part of the infrastructure of the Platform. Third-Party Services are not under the control of Folloze. Folloze makes no representation and assumes no liability for Third-Party Services. Customer’s activation of Third-Party Services is at Customer’s own risk and discretion and is governed by the terms and policies of the relevant third party, including its privacy practices. Links to Third-Party Services do not indicate an association, affiliation or endorsement between the entities.
10.4 No Other Warranties. EXCEPT AS EXPRESLY SET FORTH ABOVE IN THIS SECTION 10 (LIMITED WARRANTIES) AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE PLATFORM AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND NEITHER FOLLOZE NOR ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS LICENSORS OR SUBCONTRACTORS MAKES ANY OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE PLATFORM OR SERVICES PROVIDED HEREUNDER OR THAT THE SERVICES WILL NOT BE INTERRUPTED OR WILL BE “ERROR-FREE” OR FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, SUITABLE, REALIABLE, ACCURATE, LEGAL OR SAFE. ALL IMPLIED WARRANTIES AS TO SATISFACTORY QUALITY, PERFORMANCE, FITNESS FOR PARTICULAR PURPOSE, MERCHANTABILITY, AND ANY WARRANTY ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE, ARE EXPRESSLY DISCLAIMED. CUSTOMER ACKNOWLEDGES AND AGREE THAT FOLLOZE IS NOT LIABLE FOR THE CONDUCT OF OTHER PARTIES, INCLUDING OPERATORS OF THIRD-PARTY WEBSITES AND THIRD-PARTY SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, SO SUCH LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO CUSTOMER.
11.1 By Customer. Customer shall indemnify and hold Folloze and its officers, directors, shareholders, investors, agents, employees, subcontractors, licensors and affiliates and their officers, directors, shareholders, investors, agents and employees harmless from and against any and all third-party claims, liabilities, damages, losses, costs and expenses (including reasonable attorneys’ fees) arising directly or indirectly out of or relating to Customer’s invitations to Guests, Customer’s Property including the Content except to the extent due to acts or omissions of Folloze, claims that the Customer Property, or any portion thereof infringes, misappropriates, or violates any third party’s copyright, trade secret, trademark or other proprietary or privacy right or other law, Customer’s interaction with its Guests through Folloze’s Platform, Customer’s breach or alleged breach of any provision of this TOS including the representations and warranties in Section 10.1 (By Customer), Customer’s unauthorized or illegal use of the Folloze Platform, Customer’s use of the Platform with other products, equipment, materials or services not provided by us, or the unauthorized use of our Platform by someone using Customer’s access credentials.
11.2 By Folloze. Folloze shall indemnify, defend and hold Customer and its officers, directors, agents and employees harmless from and against any and all third-party claims, liabilities, damages, losses, costs and expenses (including reasonable attorneys’ fees) arising out of or relating to Folloze’s breach or alleged breach of the representations and warranties in Section 10.2 (By Folloze). Such indemnification shall not apply to: (i) infringing combinations arising from the integration of the Platform with other products, materials or services not provided by Folloze; (ii) claims for infringement arising solely from changes made to the Platform other than by Folloze and without Folloze’s approval; (iii) use of other than the most current version of the Platform or deliverable if the infringement could have been avoided by the use of such current versions and Folloze made such current version available to Customer; or (iv) Folloze’s development of any modifications to the Platform or any deliverables at Customer’s request or according to Customer’s specifications.
If an injunction prevents the use of the Platform or any deliverable, or in the event Folloze believes that the granting of such injunction is likely, Folloze may, at its option and expense and Customer’s sole and exclusive remedy, either: (i) substitute a fully equivalent non-infringing Platform or deliverable; (ii) modify the Platform or deliverable so that it no longer infringes but remains functionally equivalent; (iii) obtain for Customer the right to continue use of such Platform or deliverable; or (iv) if none of the foregoing is feasible, terminate the applicable portion of the applicable Order and/or SOW and refund the applicable fee paid for the same (less an allowance for depreciation if applicable) and/or cease any on-going fees.
11.3 Indemnification Procedure. Any party seeking indemnification under this TOS (the “Indemnitee”) shall (i) promptly notify the indemnifying party (the “Indemnitor”) in writing of the claim (except that failure of Indemnitee to give prompt notice shall not relieve Indemnitor of its obligations hereunder unless such failure materially prejudices Indemnitor’s ability to respond to the claim); (ii) provide the Indemnitor with sole control over the defense and/or settlement of such claim, at Indemnitor’s expense and with Indemnitor’s choice of counsel; and (iii) at Indemnitor’s request and expense, provide full information and render all reasonable assistance to Indemnitor with respect to the defense or settlement of such claim. Indemnitee may join in the defense of a claim with counsel of its choice at its expense. Indemnitor shall have no liability for any settlements or compromises of the claim entered into by Indemnitee without Indemnitor’s prior written consent.
NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS TOS AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY, ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS, LICENSORS OR SUBCONTRACTORS SHALL BE LIABLE TO OTHER PARTY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO ANY LOST PROFITS, REVENUE, SAVINGS, BUSINESS, DATA OR GOODWILL, HOWEVER CAUSED, WHETHER FOR BREACH OR REPUDIATION OF CONTRACT, TORT, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE ON ANY THEORY OF LIABILITY, WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SUCH EXCLUSIONS MAY NOT APPLY TO A PARTY.
NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS TOS AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, FOLLOZE’S AND ITS SUBCONTRACTORS’ AND LICENSORS’ TOTAL LIABILITY ARISING FROM OR IN RELATION TO THIS TOS, THE PLATFORM AND THE PERFORMANCE OF SERVICES HEREUNDER SHALL BE LIMITED TO THE TOTAL PAYMENTS MADE BY CUSTOMER TO FOLLOZE IN THE YEAR PERIOD IMMEDIATELY PRECEDING THE COMMENCEMENT OF THE CLAIM, OR IN THE EVENT NO CUSTOMER PAYMENTS HAVE BEEN MADE (E.G., FOR TRIAL ACCOUNTS), THEN TOTAL LIAIBLITY WILL BE ONE HUNDRED DOLLARS (US$100.00). THE FOREGOING STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND FOLLOZE’S SOLE AND EXCLUSIVE OBLIGATION WITH REGARD TO THE PLATFORM OR FOLLOZE’S OR ITS SUBCONTRACTORS’ FAILURE TO PERFORM THE SERVICES CONTEMPLATED HEREUNDER. IN NO EVENT WILL FOLLOZE OR ITS SUBCONTRACTORS OR LICENSORS BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES OR THE RECOVERY OF LOST DATA OR CONTENT. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO DAMAGES ARISING FROM DEATH OR PERSONAL INJURY TO PERSONS OR TANGIBLE PROPERTY IN ANY JURISDICTION WHERE SUCH LIMITATION IS PROHIBITED BY APPLICABLE LAW. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF CERTAIN DAMAGES, SO SUCH LIMITATIONS MAY NOT APPLY TO CUSTOMER.
The parties acknowledge that Folloze has set its prices and entered into this TOS in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth herein, and that the same form an essential basis of the bargain between the parties. The parties agree that the limitations and exclusions of liability and disclaimers specified in this TOS will survive and apply even if found to have failed of their essential purpose.
During and for a period of two (2) years following the termination of this TOS, Customer shall not interfere in any way with the business of Folloze. By way of example and not of limitation, Customer shall not during this period solicit or induce any employee or independent contractor of Folloze to terminate any employment, contractual or other relationship with Folloze. This provision is a material term of this TOS for which breach thereof provides a basis for terminating this TOS.
16.1 Governing Law. This TOS, and all related causes of action including but not limited to negligence and other torts, shall be governed and construed according to the laws of the State of California, U.S.A. without regard to that body of law controlling conflicts of law. The parties agree that the Uniform Computer Information Transactions Act and the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this TOS.
16.2 Arbitration; No Class or Representative Actions; Time Limitation of Claims. In the event of any dispute or claim arising out of or in connection with or relating to this TOS, Customer agrees to first contact Folloze and attempt to resolve the dispute informally. If Folloze has not been able to resolve the dispute with Customer informally, the parties agree to resolve any such claim, dispute, or controversy (excluding claims for injunctive or other equitable relief) by binding arbitration. Customer agrees that the arbitration shall take place with the American Arbitration Association in Santa Clara County, California, U.S.A. or other mutually agreeable arbitration service or location, and Customer agrees to submit any claim on Customer’s individual behalf and waive any and all right to participate in a class action. Nothing in this TOS shall prevent either party from seeking injunctive relief or other equitable relief from the courts for matters related to data security, intellectual property or unauthorized access to the Platform, and the parties irrevocably submit to the non-exclusive jurisdiction of the courts located in Santa Clara County, California for such purpose or to enforce any arbitration award to the fullest extent permitted by law.
ALL CLAIMS MUST BE BROUGHT IN THE PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, AND, UNLESS THE PARTIES AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON'S CLAIMS. CUSTOMER AGREES THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO ACCESS OR USE OF THE PLATFORM OR THE SERVICES MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR BE FOREVER BARRED.
16.3 Notice for California Users. Under California Civil Code Section 1789.3, users of the Platform or Services from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. Customer may contact Folloze at email@example.com or at 1820 Gateway Drive, Suite 330, San Mateo, California 94404, U.S.A.
17.1 Headings. The headings and captions used in the TOS are for convenience of reference only and shall not in any way affect the interpretation of the provisions of the TOS
17.2 Language Interpretation. The original of this TOS has been written in English and the governing language shall be English. The use of the singular includes the plural and vice versa, as the context may require.
17.3 Modification; Waiver. The TOS may not be modified or amended except by a written instrument signed by both parties, except as otherwise expressly provided for herein with respect to an Order or SOW. No waiver will be implied from conduct or failure to enforce rights, and no waiver will be effective unless in a writing signed on behalf of the party against whom the waiver is asserted. The exercise of any right or remedy provided in this TOS shall be without prejudice to the right to exercise any other right or remedy provided by law or equity, except as expressly limited by this TOS.
17.4 Independent Contractors. The relationship of the parties is that of independent contractors. Nothing in the TOS may be construed to make either party the agent or partner of the other. Neither party may legally bind the other in any manner.
17.5 Assignment. Customer shall not assign or otherwise transfer this TOS, in whole or part, without Folloze’s prior written consent, which consent may be withheld in Folloze’s sole discretion. Any attempted assignment or transfer without such consent shall be void. Folloze may assign this TOS, in whole or in part, to any company that owns or controls Folloze, to any entity that is owned or controlled by a company that owns or controls Folloze, or to any successor entity resulting from the merger, reorganization, consolidation, joint venture, acquisition or other business combination or transaction, or any other transfer of all or substantially all of Folloze’s stock or assets. Subject to the foregoing, this TOS shall otherwise be binding upon, and inure to the benefit of, the parties’ permitted successors, transferees and assigns.
17.6 Attorneys’ Fees. In any action to enforce this TOS, the prevailing party shall be awarded all arbitration costs or court costs and reasonable attorneys’ fees incurred, including such costs and attorneys’ fees incurred in enforcing and collecting any judgment.
17.7 Notices. All notices required or permitted under the TOS will be in writing and will be deemed given: (i) when delivered personally; (ii) when sent by confirmed telex, facsimile or e-mail; (iii) ten (10) calendar days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) one (1) calendar day after deposit with a commercial overnight carrier specifying next day delivery, with written verification of receipt. All communications will be sent to the addresses set forth at the beginning of the TOS or to such other address as may be designated by a party giving written notice to the other party pursuant to this Section 17.7 (Notices).
17.8 Export Control. Any software available in connection with the Platform and the transmission of applicable data, if any, may be subject to United States export controls. No software may be exported or re-exported in violation of U.S. export laws.
17.9 Force Majeure. Neither party shall be liable for any alleged loss or damages resulting from failure to perform or interruption of the Platform due to acts of nature, natural disasters, strike, shortages of labor, war, terrorist attacks, governmental priorities, energy crises, riots or for reasons beyond such party’s reasonable control.
17.10 Severability. In the event any provision of this TOS, or part thereof, is found to be invalid, illegal or unenforceable, that provision or part thereof will be enforced to the maximum extent permitted by law and the remainder of this TOS will remain in full force.
17.11 Execution. This TOS, and any Order or SOW, may be executed in counterpart, each of which shall be deemed an original, and all of which together comprise the TOS. Each individual person executing this TOS hereby represents, or submitting any Order or executing any SOW thereby represents, that it is so authorized and the other party may rely on such representation. An electronic transmission of this TOS or any Order or SOW by a party containing a signature page that has been executed on behalf of that party shall constitute a valid signature of that party.
18. Entire TOS.