Effective Date: May 15, 2020
These User Terms of Service (the "User Terms") govern your access and use of our Pluckd software as a service (SaaS) offering (the "Services") located at https:/pluckd.co (the "Site"). Even though you are signing onto an existing account, these User Terms apply to you as a user of the Services, so please read them carefully.
Acceptance of the Terms
These User Terms are a legally binding contract between you and us. If you access or use the Services, or continue accessing or using the Services after being notified of a change to the User Terms, you confirm that you have read, understand and agree to be bound by the User Terms. "We", "our" and "us" currently refers to the applicable Pluckd entity in the Contract (defined below).
Customer and Authorized User definition
In these User Terms, what we refer to as "Customer" is the organization or other third party that has invited you to an account. If you are joining one of your employer's accounts, for example, Customer is your employer. If you are joining an account created by your friend using her personal email address to work on her new startup idea, she is our Customer and she is authorizing you to join her account.
The Customer has separately agreed to our Customer Terms of Service or entered into a written agreement with us (in either case, the "Contract") that permitted Customer to create and configure an account so that you and others could join (each invitee granted access to the Services, including you, is an "Authorized User"). The Contract contains our commitment to deliver the Services to Customer, who may then invite Authorized Users to join its account. When an Authorized User (including you) submits content or information to the Services, such as messages or files ("Customer Data"), you acknowledge and agree that the Customer Data is owned by the Customer and the Contract provides the Customer with many choices and control over that Customer Data. For example, Customer may provision or deprovision access to the Services and that choice may result in the access, use, disclosure, modification or deletion of certain or all Customer Data.
AS BETWEEN US AND CUSTOMER, YOU AGREE THAT IT IS SOLELY CUSTOMER'S RESPONSIBILITY TO (A) INFORM YOU AND ANY AUTHORIZED USERS OF ANY RELEVANT CUSTOMER POLICIES AND PRACTICES AND ANY SETTINGS THAT MAY IMPACT THE PROCESSING OF CUSTOMER DATA; (B) OBTAIN ANY RIGHTS, PERMISSIONS OR CONSENTS FROM YOU AND ANY AUTHORIZED USERS THAT ARE NECESSARY FOR THE LAWFUL USE OF CUSTOMER DATA AND THE OPERATION OF THE SERVICES; (C) ENSURE THAT THE TRANSFER AND PROCESSING OF CUSTOMER DATA UNDER THE CONTRACT IS LAWFUL; AND (D) RESPOND TO AND RESOLVE ANY DISPUTE WITH YOU AND ANY AUTHORIZED USER RELATING TO OR BASED ON CUSTOMER DATA, THE SERVICES OR CUSTOMER'S FAILURE TO FULFILL THESE OBLIGATIONS. PLUCKD MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, TO YOU RELATING TO THE SERVICES, WHICH ARE PROVIDED TO YOU ON AN "AS IS" AND "AS AVAILABLE" BASIS.
You must be over the legal age
To the extent prohibited by applicable law, the Services are not intended for and should not be used by anyone under the age of sixteen. You represent that you are over the legal age and are the intended recipient of the Customer's invitation to the Services. You may not access or use the Services for any purpose if either of the representations in the preceding sentence is not true. Without limiting the foregoing, you must be of legal working age.
You must take care of your credentials
You must not permit any third party that is not an Authorized User to access or use your email and password for the Services; you also must not share, transfer or otherwise provide access to an account designated for you to another person.
No illegal, harmful, or offensive use or content
You may not use, or encourage, promote, facilitate or instruct others to use, the Services or Site for any illegal, harmful, fraudulent, infringing, or offensive use, or to transmit, store, display, distribute or otherwise make available content that is illegal, harmful, fraudulent, infringing or offensive. Prohibited activities or content include but are not limited to:
- Illegal, harmful, or fraudulent activities
Any activities that are illegal, that violate the rights of others, or that may be harmful to others, our operations or reputation, including disseminating, promoting, or facilitating child pornography, offering or disseminating fraudulent goods, services, schemes, or promotions, make-money-fast schemes, Ponzi and pyramid schemes, phishing, or pharming.
- Infringing content
Content that infringes or misappropriate the intellectual property or proprietary rights of others.
- Offensive content
Content that is defamatory, obscene, abusive, invasive of privacy, or otherwise objectionable, including content that constitutes child pornography, relates to bestiality or depicts non-consensual sex acts.
- Harmful content
Content that incites or encourages violence or hatred against individuals or groups.
No security violations
You may not attempt to reverse engineer, decompile, hack, disable, interfere with, disassemble, modify, copy, translate, or disrupt the features, functionality, integrity, or performance of the Services (including any mechanism used to restrict or control the functionality of the Services), any third party use of the Services, or any third party data contained therein (except to the extent such restrictions are prohibited by applicable law).
You may not attempt to gain unauthorized access to the Services or related systems or networks or to defeat, avoid, bypass, remove, deactivate, or otherwise circumvent any software protection or monitoring mechanisms of the Services.
You must use the Services as intended
You may not access the Services in order to build a similar or competitive product or service or copy any ideas, features, functions, or graphics of the Services.
You must not impersonate any person or entity, including, but not limited to, an employee of ours, an "Administrator", an "Owner", or any other Authorized User, or falsely state or otherwise misrepresent your affiliation with a person, organization or entity.
You may not access, search, or create accounts for the Services by any means other than our publicly supported interfaces (for example, "scraping" or creating accounts in bulk).
You may not abuse referrals or promotions to get more credits than deserved.
You may not sublicense, resell, time share or similarly exploit the Services.
No network abuse
You may not perform Monitoring or Crawling of the Services that impairs or disrupts the Services.
You may not inundate the Services with communications requests so that we either cannot respond to legitimate traffic or respond so slowly that it becomes ineffective (Denial of Service, DoS).
You may not interfere with the proper functioning of the Services, including any deliberate attempt to overload the system by mail bombing, news bombing, broadcast attacks, or flooding techniques.
You may not use any manual or electronic means to avoid any use limitations placed on the Services, such as access restrictions.
No email or other message abuse
You may not send unsolicited communications, promotions or advertisements, or spam.
You may not use contact or other user information obtained from the Services (including email addresses) to contact Authorized Users outside of the Services without their express permission or authority or to create or distribute mailing lists or other collections of contact or user profile information for Authorized Users for use outside of the Services; or authorize, permit, enable, induce or encourage any third party to do any of the above.
You will not alter or obscure mail headers or assume a sender's identity without the sender's explicit permission. You will not collect replies to messages sent from another internet service provider if those messages violate this Policy or the acceptable use policy of that provider.
These User Terms remain effective until Customer's subscription for you expires or terminates, or your access to the Services has been terminated by Customer or us. Please contact Customer if you at any time or for any reason wish to terminate your account, including due to a disagreement with any updates to these User Term.
Limitation of liability
If we believe that there is a violation of the Contract, User Terms, or any of our other policies that can simply be remedied by Customer's removal of certain Customer Data or taking other action, we will, in most cases, ask Customer to take action rather than intervene. We may directly step in and take what we determine to be appropriate action (including disabling your account) if Customer does not take appropriate action or we believe there is a credible risk of harm to us, the Services, Authorized Users, or any third parties.
IN NO EVENT WILL YOU OR WE HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNLESS YOU ARE ALSO A CUSTOMER (AND WITHOUT LIMITATION TO OUR RIGHTS AND REMEDIES UNDER THE CONTRACT), YOU WILL HAVE NO FINANCIAL LIABILITY TO US FOR A BREACH OF THESE USER TERMS. OUR MAXIMUM AGGREGATE LIABILITY TO YOU FOR ANY BREACH OF THE USER TERMS IS ONE HUNDRED DOLLARS ($100) IN THE AGGREGATE. THE FOREGOING DISCLAIMERS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW AND DO NOT LIMIT EITHER PARTY'S RIGHT TO SEEK AND OBTAIN EQUITABLE RELIEF.
The sections titled "Customer and Authorized User Definition", "Limitation of Liability," and "Survival," and all of the provisions under the general heading "General Provisions" will survive any termination or expiration of the User Terms.
Email and messages
Except as otherwise set forth herein, all notices under the User Terms will be by email, although we may instead choose to provide notice to Authorized Users through the Services (e.g., a site notification). Notices to Pluckd should be sent to [email protected], except for legal notices, which must be sent to [email protected] A notice will be deemed to have been duly given (a) the day after it is sent, in the case of a notice sent through email; and (b) the same day, in the case of a notice sent through the Services. Notices under the Contract will be delivered solely to the Customer in accordance with the terms of that agreement.
As our business evolves, we may change these User Terms. If we make a material change to the User Terms, we will provide you with reasonable notice prior to the change taking effect either by emailing the email address associated with your account or by messaging you through the Services. You can review the most current version of the User Terms at any time by visiting this page.
Any material revisions to these User Terms will become effective on the date set forth in our notice, and all other changes will become effective on the date we publish the change. If you use the Services after the effective date of any changes, that use will constitute your acceptance of the revised terms and conditions.
No failure or delay by either party in exercising any right under the User Terms will constitute a waiver of that right. No waiver under the User Terms will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver.
The User Terms will be enforced to the fullest extent permitted under applicable law. If any provision of the User Terms is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of the User Terms will remain in effect.
You may not assign any of your rights or delegate your obligations under these User Terms whether by operation of law or otherwise, without the prior written consent of us (not to be unreasonably withheld). We may assign these User Terms in their entirety (including all terms and conditions incorporated herein by reference), without your consent, to a corporate affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of our assets.
Governing law and jurisdiction
The User Terms, including the Acceptable Use Policy, and any disputes arising out of or related hereto, will be governed exclusively by the same applicable governing law of the Contract, without regard to conflicts of laws rules or the United Nations Convention on the International Sale of Goods. The courts located in the applicable venue of the Contract will have exclusive jurisdiction to adjudicate any dispute arising out of or relating to the User Terms or its formation, interpretation or enforcement.
Each party hereby consents and submits to the exclusive jurisdiction of such courts. In any action or proceeding to enforce rights under the User Terms, the prevailing party will be entitled to recover its reasonable costs and attorney's fees.
Order of precedence and integration