Last updated July 25, 2018.
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THIS SERVICE.
BY USING THE SERVICE OR CLICKING “AGREE” CUSTOMER IS AGREEING TO BE BOUND BY THIS AGREEMENT. IF YOU ARE AGREEING TO THIS AGREEMENT ON BEHALF OF OR FOR THE BENEFIT OF YOUR EMPLOYER, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE NECESSARY AUTHORITY TO AGREE TO THIS AGREEMENT ON YOUR EMPLOYER’S BEHALF.
This agreement is between Horan Data Services LLC, a Nevada LLC (FTP TODAY), and the customer agreeing to these terms (Customer).
1. SOFTWARE SERVICE.
This agreement provides Customer access to and usage of an Internet based software service as specified on an order (Service).
2. USE OF SERVICE.
a. Customer Owned Data.
All data uploaded by Customer remains the property of Customer, as between FTP TODAY and Customer (Customer Data). Customer grants FTP TODAY the right to use the Customer Data solely for purposes of performing under this agreement. During the term of this agreement, Customer may export its Customer Data as allowed by functionality within the Service.
b. Access and Usage.
Customer may allow its employees, contractors, clients and other users (End Users) to access the Service in compliance with the terms of this agreement, which access must be for the sole benefit of Customer or client. Customer is responsible for the compliance with this agreement by its End Users.
c. Customer Responsibilities.
Customer (i) must keep its passwords secure and confidential; (ii) is solely responsible for Customer Data and all activity in its account in the Service; (iii) must use commercially reasonable efforts to prevent unauthorized access to its account, and notify FTP TODAY promptly of any such unauthorized access; and (iv) may use the Service only in accordance with the Service’s user guide and applicable law.
d. FTP TODAY Support.
FTP TODAY must provide customer support for the Service under the terms of FTP TODAY’s Customer Support Policy (Support) which is located at support.ftptoday.com.
e. 30-Day Trial Version.
If Customer has registered for a trial use of the Service, Customer may access the Service for a 30-day time period (unless extended by FTP TODAY in writing). The Service is provided AS IS, with no warranty during this time period. After the trial period, Customer’s account will automatically convert to a paid subscription to the Service, unless Customer provides notice of cancellation prior to the end of the trial period. If Customer does cancel, then upon expiration of the trial period, all Customer Data will be deleted.
f. Data Security Measures.
i. Security Measures.
In order to protect Customer Data, FTP TODAY will (i) implement and maintain all reasonable security measures appropriate to the nature of the Customer Data including without limitation, technical, physical, administrative and organizational controls, and will maintain the confidentiality, security and integrity of such Customer Data; (ii) implement and maintain industry standard systems and procedures for detecting, preventing and responding to attacks, intrusions, or other systems failures and regularly test or otherwise monitor the effectiveness of the safeguards’ key controls, systems, and procedures; (iii) designate an employee or employees to coordinate implementation and maintenance of its Security Measures (as defined below); and (iv) identify reasonably foreseeable internal and external risks to the security, confidentiality and integrity of Customer Data that could result in the unauthorized disclosure, misuse, alteration, destruction or other compromise of such information, and assess the sufficiency of any safeguards in place to control these risks (collectively, Security Measures).
ii. Notice of Data Breach.
If FTP TODAY knows that Customer Data has been accessed, disclosed, or acquired without proper authorization and contrary to the terms of this agreement, FTP TODAY will alert Customer of any such data breach within two business days, and immediately take such actions as may be necessary to preserve forensic evidence and eliminate the cause of the data breach. FTP TODAY will give highest priority to immediately correcting any data breach and devote such resources as may be required to accomplish that goal. FTP TODAY will provide Customer with all information necessary to enable Customer to fully understand the nature and scope of the data breach. To the extent that Customer, in its sole reasonable discretion, deems warranted, Customer may provide notice to any or all parties affected by any data breach. In such case, FTP TODAY will consult with Customer in a timely fashion regarding appropriate steps required to notify third parties. FTP TODAY will provide Customer with information about what FTP TODAY has done or plans to do to minimize any harmful effect or the unauthorized use or disclosure of, or access to, Customer Data.
3. SERVICE LEVEL AGREEMENT (SLA) & WARRANTY.
FTP TODAY warrants to Customer: (i) that commercially reasonable efforts will be made to maintain the online availability of the Service for a minimum of availability in any given calendar month as provided in the chart below (excluding maintenance outages, DoS/DDoS attacks or other force majeure, and outages that result from any Customer technology issues); (ii) the functionality or features of the Service may change but will not materially decrease during any paid term; and (iii) that the Support may change but will not materially degrade during any paid term.
Service Availability Warranty Credit Available 99.9% or greater No credit. SLA is met. 99.89% - 95% 10% of monthly fee. 94.99% - 90% 25% of monthly fee. Less than 90% 50% of monthly fee.
b. LIMITED REMEDY.
Customer’s exclusive remedy and FTP TODAY’s sole obligation for its failure to meet the warranty in a(i) above will be for FTP TODAY to provide a credit for the applicable month, as provided in the chart above (if this agreement is not renewed, then a refund), for the month; provided that Customer notifies FTP TODAY of such breach within 10 days of the end of that month.
FTP TODAY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE AND FITNESS FOR A PARTICULAR PURPOSE. WHILE FTP TODAY TAKES REASONABLE PHYSICAL, TECHNICAL AND ADMINISTRATIVE MEASURES TO SECURE THE SERVICE, FTP TODAY DOES NOT GUARANTEE THAT THE SERVICE CANNOT BE COMPROMISED. CUSTOMER UNDERSTANDS THAT THE SERVICE MAY NOT BE ERROR-FREE OR FREE OF HARMFUL COMPONENTS, OR THAT DATA MAY NOT BE OTHERWISE LOST OR DAMAGED, AND THAT USE MAY BE INTERRUPTED.
Customer must pay all fees as specified on the order, but if not specified then within 30 days of receipt of an invoice. Customer is responsible for the payment of all sales, use, withholding, VAT and other similar taxes. The order renews automatically for additional subscription periods of the same subscription length, unless either party provides the other with written (including email) notice of non-renewal at least 1 business day prior to the renewal date.
5. MUTUAL CONFIDENTIALITY.
a. Definition of Confidential Information.
Confidential Information means all non-public information disclosed by a party (Discloser) to the other party (Recipient), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (Confidential Information). FTP TODAY’s Confidential Information includes without limitation the Service, its user interface design and layout, and pricing information.
b. Protection of Confidential Information.
The Recipient must use the same degree of care that it uses to protect the confidentiality of its own confidential information (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Discloser for any purpose outside the scope of this agreement. The Recipient must make commercially reasonable efforts to limit access to Confidential Information of Discloser to those of its employees and contractors who need such access for purposes consistent with this agreement and who have signed confidentiality agreements with Recipient no less restrictive than the confidentiality terms of this agreement.
Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Discloser, (ii) was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser, (iii) is received from a third party without breach of any obligation owed to Discloser, or (iv) was independently developed by the Recipient without use or access to the Confidential Information. The Recipient may disclose Confidential Information to the extent required by law or court order, but will provide Discloser with advance notice to seek a protective order.
6. FTP TODAY PROPERTY.
a. Reservation of Rights.
The software, workflow processes, user interface, designs, and other technologies provided by FTP TODAY as part of the Service are the proprietary property of FTP TODAY and its licensors, and all right, title and interest in and to such items, including all associated intellectual property rights, remain only with FTP TODAY. Customer may not remove or modify any proprietary marking or restrictive legends in the Service. FTP TODAY reserves all rights unless expressly granted in this agreement.
Customer may not (i) sell, resell, rent or lease the Service or use it in a service provider capacity; (ii) use the Service to store or transmit infringing, unsolicited marketing emails, libelous, or otherwise objectionable, unlawful or tortious material, or to store or transmit material in violation of third-party rights; (iii) interfere with or disrupt the integrity or performance of the Service; (iv) attempt to gain unauthorized access to the Service or its related systems or networks; (v) reverse engineer the Service; or (vi) access the Service to build a competitive service or product, or copy any feature, function or graphic for competitive purposes.
c. Anonymized Data.
During and after the term of this agreement, FTP TODAY may use and owns all anonymized data within the Service for purposes of enhancing the Service, aggregated statistical analysis, technical support and other business purposes.
7. TERM AND TERMINATION.
This agreement continues until all orders have expired or are terminated for material breach under Section 7(b).
b. Mutual Termination for Material Breach.
If either party is in material breach of this agreement, the other party may terminate this agreement at the end of a written 30-day notice/cure period, if the breach has not been cured.
c. Customer Data.
Upon termination, FTP TODAY has no obligation to maintain the Customer Data and will destroy it.
d. Return FTP TODAY Property Upon Termination.
Upon termination of this agreement for any reason, Customer must pay FTP TODAY for any unpaid amounts, and destroy or return all property of FTP TODAY. Upon FTP TODAY’s request, Customer will confirm in writing its compliance with this destruction or return requirement.
e. Suspension for Violations of Law.
FTP TODAY may temporarily suspend the Service or remove the applicable Customer Data, or both, if it in good faith believes that, as part of using the Service, Customer has violated a law. FTP TODAY will attempt to contact Customer in advance.
f. Suspension for Non-Payment.
FTP TODAY may temporarily suspend the Service if Customer is more than 30 days late on any payment due pursuant to an order.
8. LIABILITY LIMIT.
a. EXCLUSION OF INDIRECT DAMAGES.
NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES UNDER THIS AGREEMENT OR ANY THEORY OF LIABILITY INCLUDING, WITHOUT LIMITATION, LOSS OF OR UNAUTHORIZED ACCESS TO DATA, CONTENT OR BUSINESS INFORMATION, LOSS OF TECHNOLOGY, RIGHTS OR SERVICE, ANTICIPATED OR LOST REVENUE OR SAVINGS, LOSS OF CUSTOMERS, LOST PROFITS, LOST GOODWILL, LOST BUSINESS OR REPLACEMENT GOODS OR INTERRUPTION OR LOSS OF USE OF SERVICE OR EQUIPMENT OR ANY LOSS THAT COULD HAVE BEEN AVOIDED BY SUCH PARTY’S USE OF REASONABLE PRECAUTIONS OR DILIGENCE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES WHETHER ARISING UNDER ANY THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED TO CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR BREACH OF WARRANTIES.
b. TOTAL LIMIT ON LIABILITY.
NOTWITHSTANDING ANYTHING ELSE CONTAINED IN THIS AGREEMENT, THE MAXIMUM CUMULATIVE LIABILITY OF EITHER PARTY OR ITS SUPPLIERS, CONTRACTORS AND SUBCONTRACTORS ARISING OUT OF OR RELATING TO THIS AGREEMENT FOR ANY REASON WHATSOEVER (INCLUDING WITHOUT LIMITATION ANY PERFORMANCE OR NON-PERFORMANCE HEREUNDER, REGARDLESS OF THE FORM OF THE CAUSE OF ACTION, WHETHER IN CONTRACT, TORT, STATUTE OR OTHERWISE, SHALL IN NO EVENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO FTP TODAY UNDER THIS AGREEMENT DURING THE TWELVE MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO SUCH CLAIM.
THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY REGARDLESS OF WHEN THE CLAIM OR CLAIMS GIVING RISE TO SUCH LIABILITY OR LIABILITIES SHOULD OCCUR. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.
THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT. RATHER, THE MAXIMUM CUMULATIVE LIABILITY OF EITHER PARTY ARISING OUT OF OR RELATING TO ITS INDEMNIFICATION OBLIGATIONS SHALL IN NO EVENT EXCEED THE TOTAL AMOUNT PAID OR TO BE PAID BY CUSTOMER TO FTP TODAY UNDER THIS AGREEMENT DURING THE THREE (3) YEAR PERIOD PRIOR TO THE EVENT GIVING RISE TO SUCH CLAIM.
NOTWITHSTANDING ANY LIMITATIONS SET FORTH IN THIS SECTION, CUSTOMER SHALL BE LIABLE FOR ALL SUMS DUE OR PAYABLE UNDER THIS AGREEMENT, REGARDLESS OF AMOUNT, TOGETHER WITH ANY ADDITIONAL FEES, ATTORNEY FEES AND/OR COSTS THAT MAY BE DUE FTP TODAY PURSUANT TO THE SERVICE ORDER.
a. By FTP TODAY.
FTP TODAY agrees to indemnify, defend and hold harmless Customer and its directors, officers, employees, contractors, agents, successors, and assigns, (collectively, the “Customer Indemnified Parties”) from and against any and all liability (including, without limitation, attorneys’ fees and costs) incurred by the Customer Indemnified Parties in connection with any actual or alleged claim (“FTP TODAY Claim”) by a Third Party arising out of (a) any injury to person or property caused by FTP TODAY; (b) any infringement or misappropriation of a Third Party’s rights based on the use of the Services, the Third Party Software or the FTP TODAY Software, including, without limitation, any actual or alleged infringement or misappropriation of a Third Party's copyright, trade secret, trademark or other proprietary right; or (c) any violation by FTP TODAY of any applicable law, court order, rule or regulation in any jurisdiction in which the Services are provided. THIS SECTION CONTAINS CUSTOMER’S EXCLUSIVE REMEDIES AND FTP TODAY’S SOLE LIABILITY FOR INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS.
b. By Customer.
Customer agrees to indemnify, defend and hold harmless FTP TODAY and its directors, officers, employees, contractors, agents, successors, and assigns, (collectively, the “FTP TODAY Indemnified Parties”), from and against any and all liability (including, without limitation, attorneys’ fees and costs) incurred by the FTP TODAY Indemnified Parties in connection with any actual or alleged claim (“Customer Claim”) by a Third Party arising out of: (a) any injury to person or property caused by Customer; (b) Customer’s use of the Services, FTP TODAY Software or Third Party Software not arising out of an act or omission of FTP TODAY; (c) any breach by Customer of this Agreement; (d) any infringement by Customer of a Third Party’s rights based on the Customer Data; (e) any violation or non-compliance by Customer with any applicable law, court order, rule or regulation in any jurisdiction; or (f) Customer’s failure to possess valid licensing entitlements with respect to any Customer-Licensed Software.
10. GOVERNING LAW AND FORUM.
This agreement is governed by the laws of the State of Nevada (without regard to conflicts of law principles) for any dispute between the parties or relating in any way to the subject matter of this agreement. Any suit or legal proceeding must be exclusively brought in the federal or state courts for Clark County, Nevada, and Customer submits to this personal jurisdiction and venue. Nothing in this agreement prevents either party from seeking injunctive relief in a court of competent jurisdiction. The prevailing party in any litigation is entitled to recover its attorneys’ fees and costs from the other party.
11. OTHER TERMS.
FTP TODAY reserves the right to modify this agreement and will post the most current version at www.ftptoday.com. If FTP TODAY makes material changes to this agreement, Customer will be notified via the Service and/or by email to the primary address associated with Customer's account.
b. Entire Agreement.
This agreement and the order constitute the entire agreement between the parties and supersede any prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. Customer is not relying on any representation concerning this subject matter, oral or written, not included in this agreement. No representation, promise or inducement not included in this agreement is binding. No modification of this agreement is effective unless both parties sign it, however this agreement may be modified through an online process provided by FTP TODAY per (a) above. No waiver is effective unless the party waiving the right signs a waiver in writing.
c. No Assignment.
Neither party may assign or transfer this agreement or an order to a third party, except that this agreement with all orders may be assigned, without the consent of the other party, as part of a merger, or sale of substantially all the assets, of a party.
d. Independent Contractors.
The parties are independent contractors with respect to each other.
e. Enforceability and Force Majeure.
If any term of this agreement is invalid or unenforceable, the other terms remain in effect. Except for the payment of monies, neither party is liable for events beyond its reasonable control, including, without limitation force majeure events.
f. Money Damages Insufficient.
Any breach by a party of this agreement or violation of the other party’s intellectual property rights could cause irreparable injury or harm to the other party. The other party may seek a court order to stop any breach or avoid any future breach.
g. No Additional Terms.
FTP TODAY rejects additional or conflicting terms of any Customer form-purchasing document.
h. Order of Precedence.
If there is an inconsistency between this agreement and an order, the order prevails.
i. Survival of Terms.
Any terms that by their nature survive termination of this agreement for a party to assert its rights and receive the protections of this agreement, will survive (including without limitation, the confidentiality terms). The UN Convention on Contracts for the International Sale of Goods does not apply.
If Customer provides feedback or suggestions about the Service, then FTP TODAY (and those it allows to use its technology) may use such information without obligation to Customer.