Percolata Terms of Service
Welcome to percolata.com, the website and online service of Percolata Corporation. (“Percolata”, “we” or
“us”). This page explains the terms by which you may use our online services, web site, and software
provided on or in connection with the service (collectively the “Service”).
Percolata reserves the right to make unilateral modifications to these terms and will provide notice of these changes as described below. Any new features that augment or enhance the current Service, including the release of new tools and resources, shall be subject to this Agreement. This Agreement applies to all visitors, users, and others who access the Service, whether on behalf of a company or on their own individual behalf (“Users”, or “Customers”).
PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION.
1. Use of Our Service
This is a contract between you and Percolata. You must read and agree to these terms before using the Service. If you do not agree, you may not use the Service. You may use the Service only if you can form a binding contract with Percolata, and only in compliance with this Agreement and all applicable local, state, national, and international laws, rules and regulations.
Any use or access to the Service by anyone under 13 is strictly prohibited and in violation of this Agreement. Any use of or access to the Service by anyone under 18 is only permitted with the express written permission of such individual’s legal guardian, and, if necessary, you represent and warrant that you have received such permission. The Service is not designed for use by or in connection with anyone under the age of 18, and you accept all responsibility that may arise from your use of the Service in connection with any minors. The Service is not available to any Users previously removed from the Service by Percolata.
The Service is controlled, operated and administered by Percolata from our offices within the USA and China. If you access the Service from a location outside the USA, you are responsible for compliance with all local laws. You agree that you will not use the Percolata Content accessed through www.percolata.com in any country or in any manner prohibited by any applicable laws, restrictions or regulations.
B. Percolata Service
Subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to use the Service solely as permitted by the features of the Service, which may vary by User. We reserve all rights not expressly granted herein in the Service and the Percolata Content (as defined below). We may terminate this license or your access to the Service at any time for any reason or no reason.
C. Percolata Accounts
Your Percolata account gives you access to the services and functionality that we may establish and maintain from time to time and in our sole discretion. We may maintain different types of accounts for different types of Users. If you open a Percolata account on behalf of a company, organization, or other entity, then (a) “you” includes you and that entity, and (b) you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to this Agreement, and that you agree to this Agreement on the entity’s behalf. By connecting to Percolata with a third-party service, you give us permission to access and use your information from that service as permitted by that service, and to store your log-in credentials for that service.
You acknowledge and agree that if you are opening a Percolata account or otherwise using the Service as or on behalf of an employer company, organization or other entity, your employees who open employee accounts must and do separately agree to be bound by this Agreement.
You may never use another User’s account without permission. When creating your account, you must provide accurate and complete information, and you must keep this information up to date. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. We encourage you to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your account. You must notify Percolata immediately of any breach of security or unauthorized use of your account. Percolata will not be liable for any losses caused by any unauthorized use of your account.
By providing Percolata with your email address and/or mobile number, you consent to our using the email address and/or mobile number to send you Service-related notices, including any notices required by law, in lieu of communication by postal mail. We may also use your email address and/or mobile number to send you other messages, such as changes to features of the Service.
D. Product Support
Updates and Enhancements shall be provided by Percolata for the Programs on an “as available” basis and include the following items: (i) Error Fixes; (ii) Documentation to include appropriate release, including functional, configuration and installation information; (iii) Enhancements to Programs provided by Percolata to keep current with changes in Operating Systems, user environment etc.; (iv) Performance enhancements to Programs; (v) Functional enhancements that Percolata makes generally available to Percolata Customers with a current Support contract; (vi) Platform Extensions including windowing system and operating system platforms.
Updates and Enhancements specified above, and those otherwise provided by Percolata to purchasers of the Programs will be provided in machine readable format and updates to related documentation will be provided in electronic form only. Duplication, distribution and installation of updates and enhancements is the responsibility of the Customer.
Percolata will support previous releases of Programs for two previous releases following the general availability of a new release. Thereafter, Percolata shall bear no further responsibility for supporting and maintaining the prior releases. A “Release” is defined as any update of a Program that is substantially similar to and is marketed under the same product number and nomenclature. A Release is identifiable by a number to the right of the decimal point. Nothing contained in this schedule shall obligate Percolata to support discontinued Programs for more than one year from the date they ceased to be made generally available to Percolata Customers.
Utilizing Support services requires the Customer to be current on their monthly invoice payments and maintain Programs at the Percolata specified minimum release levels and configurations. Customer may be required to install remedial patches, software updates or subsequent Releases as directed by Percolata in order to keep supported systems eligible for Support services.
E. Service Rules and Restrictions
You agree not to engage in any of the following prohibited activities: (i) copying, distributing, deleting or disclosing any part of the Service in any medium, including without limitation by any automated or nonautomated “scraping”; (ii) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Service in a manner that sends more request messages to the Percolata servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser (except that Percolata grants the operators of public search engines revocable permission to use spiders to copy publicly available materials from percolata.com for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (iii) uploading, posting, hosting, or transmitting spam, chain letters, SMSs or other unsolicited email or messages; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service; (v) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents or any code of a destructive nature through the Service; (vii) collecting or harvesting any personally identifiable information, including account names, from the Service; (viii) using the Service for any commercial solicitation purposes; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (x) interfering with the proper working of the Service; (xi) accessing any content on the Service through any technology or means other than those provided or authorized by the Service; (xii) bypassing the measures we may use to prevent or restrict access to the Service, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Service or the content therein; (xiii) verbally, physically or other abuse (including threats of abuse or retribution) of any other User or any Percolata customer, employee, member, or officer; (xiv) reproducing, duplicating, copying, selling, reselling or otherwise exploiting any portion of the Service, use of the Service, or access to the Service without the express written permission by Percolata; or (xv) modifying, adapting or hacking the Service or modifying another website so as to falsely imply that it is associated with the Service, Percolata, or any other Percolata service.
BY USING THE SERVICE YOU REPRESENT AND WARRANT UNDER PENALTY OF PERJURY THAT (I) YOU DO NOT WORK FOR A COMPETITOR OF THE COMPANY; AND (II) THAT YOU WILL NOT PROVIDE ANY INFORMATION GAINED FROM YOUR USE OF OR ACCESS TO THE SITE OR THE SERVICES TO A COMPETITOR OF THE COMPANY.
We may, without prior notice, change the Service; stop providing the Service or features of the Service, to you or to Users generally; or create usage limits for the Service. We may permanently or temporarily terminate or suspend your access to the Service without notice and liability for any reason, including if in our sole determination you violate any provision of this Agreement, or for any or no reason. Upon termination for any reason or no reason, you continue to be bound by this Agreement.
You are solely responsible for your interactions with other Percolata Users. We reserve the right, but have no obligation, to monitor disputes between you and other Users. We shall have no liability for your interactions with other Users, or for any User’s action or inaction.
2. SERVICE LEVEL AGREEMENT
This Service Level Agreement provides a general overview of Percolata’s Support and Technical Support
Services (collectively, “Support”) and explains the support processes and rules of engagement for such
Support. This section is intended for Licensees of Percolata’s Software (“Programs”) who have paid
Percolata to provide Support directly.
Licensees supported by a certified Percolata Support Partner should request a copy of the applicable Service Level Agreement (SLA) from the partner directly.
A. Description of Services
To the extent that Customer purchases Support and subject to the terms and conditions herein, Percolata will provide Support to each Customer relating to the use and operation of the Programs licensed by such Customer.
Support does not include any guarantees of error fixes, patches, or new revisions of Programs, nor does it include such services as system design or enhancements, consultation, writing of rules files, or errorproofing non-Percolata source code. Additionally, Support does not include on-site installation of Program updates and revisions, or on-site assistance with the Programs.
B. Percolata Technical Support
Percolata provides telephone and e-mail technical support services. Technical support can be reached at the following telephone number and e-mail address Monday through Friday from 9AM to 6PM PDT.
Telephone: (650) 308-4980
C. Scope of Customer Technical Support Services and Escalation Process
In handling technical support calls, Percolata offers:
Problem Resolution: Percolata provides assistance in the resolution of a Customer’s Technical Support questions relating to the use and operation of the Programs. Target time for a response will be in accordance with the Target Timescales set forth below.
Call Record: Percolata opens a new call record or trouble ticket (each a “Call Record”) for each incident raised by a Customer relating to the use and operation of the Programs. An incident is deemed “created” and a Call Record commenced when Percolata issues an incident “ID” reference.
Problem Escalation: If the Call Record is not addressed within the Target Timescales listed below, Percolata will follow the escalation procedure described in the Escalation Procedures and Contact Process section.
In delivery of the Technical Support Service, Percolata provides a four level call severity system. The Customer and Percolata will jointly and reasonably determine the call severity pursuant to the following protocols:
|Level of Severity||Definition|
|Urgent||A production system is severely affected or completely unavailable.|
|High||A production system business function or transaction process is not available or is functioning with limited capabilities.|
|Normal||The production system is not performing according to the business specification (the functionality is compromised but still available).|
|Low or RFI||A non-urgent issue that requires investigation for example suggestions for change or enhancement requests.|
Percolata reserves the right to re-classify the severity of an open record if the Customer contact fails to
respond to enquiries made by the Technical Support Centers within 24 hours.
D. Target Timescales
Target for response times are based on severity:
|Call Severity||Target for Response||Target for Relief|
|Urgent||Percolata responds within 14 hours.||Upon confirmation of receipt, Percolata begins continuous work on the case, and an authorized designated Customer Contact must be available at any time to assist with problem determination. Percolata will provide best commercial efforts for a workaround or fix within 48 hours, once the problem is reproducible or once Percolata has identified a product defect. Percolata may, at its sole discretion, incorporate such fix in a future Release of the Programs.|
|High||Percolata responds within 16 business hours.||Percolata will provide best commercial efforts for a workaround or fix within 7 business days, once the problem is reproducible. Percolata may incorporate the fix in future Release of the Programs, if agreed to by Percolata.|
|Normal||Percolata responds within 18 business hours.||Percolata will provide best commercial efforts for workaround or fix within 10 business days, once the problem is reproducible. Percolata may incorporate the fix in a future Release of the Programs, if agreed to by Percolata.|
|Low or Request For Information||Percolata responds within 24 business hours.||Not applicable.|
The Target for Response time referenced is the time in which a Technical Support Engineer will contact a
customer to begin working towards resolution of a problem based upon the Severity assigned to a case.
E. Customer Responsibilities
After purchasing Support, the Customer shall ensure that all correspondence with Percolata Customer Support is conducted by authorized Customer contacts (each an identified “Customer Contact”). Each Customer Contact should have achieved Percolata product certification and be sufficiently trained and knowledgeable in the Percolata configuration and the operating system Percolata is running on. The Customer Contact should also be the person who is generally available to work with Percolata Customer Support to resolve cases reported to Percolata Technical Support.
Customer Contacts are established to best protect Customer, Customer’s Programs and other Customerinstalled hardware and software. Only authorized Customer Contacts can request a Percolata investigation or may undertake modifications to Customer’s systems that are recommended by Percolata. If an unauthorized Customer Contact or other party claiming affiliation with a Customer calls the Technical Support Center, Percolata will ask the caller to contact the named Customer Contact. However, at Percolata’s discretion in an emergency, and as an exception to the general rule, Percolata may begin a Call Record based on reports by an unauthorized Customer Contact, with escalation of the issue contingent on verification by a Customer Contact.
Percolata’s obligation to provide Technical Support services is conditional upon the following: (a) Customer makes reasonable efforts to correct a reported Error after consulting with Percolata; (b) Customer provides Percolata with sufficient information and employee input to correct the Error either at a Percolata Technical Support Center or via remote access to the Customer’s site, as well as access to the personnel, hardware, and any additional software required to discover the Error; (c) Customer promptly installs all Support Releases; and (d) Customer procures, installs and regularly maintains all equipment, telephone lines, communication interfaces and other hardware necessary to operate the Programs. F. Escalation Procedures and Contact Process
While a case is opened, and the Customer is not satisfied with the proposed plan of action, the Customer may also request escalation through the Technical Support Engineer. The Technical Support Lead responsible for the team supporting the case will address escalation requests. The Technical Support Lead is responsible for researching a customer escalation request and developing an action plan. This plan will be proposed to the Customer and appropriate status updates made, per agreement with the Customer, until closure of the case or a subsequently agreed de-escalation. If an escalated situation requires an even higher level of attention, a report will be made to the Senior Technical Services or Senior Technical Support Lead who, in turn, will report any cases that need further assistance to the Head of Operations.
While resolving any open case reported by the Customer or Percolata, Percolata shall make best effort to contact Customer’s Store Manager and IT Department, as designated by Customer. If the call severity is Urgent, Percolata will respond within 2 hours. If the call severity is High, Percolata will respond within 6 business hours. If the call severity is Normal, Percolata will respond within 8 business hours. If the call severity is Low or RFI, Percolata will respond within 24 business hours.
3. PROPRIETARY RIGHTS
Except for your User Content, the Service and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, and User Content belonging to other Users (the “Percolata Content”), and all Intellectual Property Rights related thereto, are the exclusive property of Percolata and its licensors. Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any Percolata Content. Use of the Percolata Content for any purpose not expressly permitted by this Agreement is strictly prohibited.
4. PERCOLATA PROPERTY
The Service contains data, information, and other content not owned by you. You understand and agree
that regardless of terminology used, Percolata Property represents a limited license right governed solely
by the terms of this Agreement and available for distribution at Percolata’s sole discretion. Percolata
Property is not redeemable for any sum of money or monetary value from Percolata at any time. You
acknowledge that you do not own the account you use to access the Service, nor do you possess any
rights of access or rights to data stored by or on behalf of Percolata on our servers, including without
limitation any data representing or embodying any or all of your Percolata Property. You agree that
Percolata has the absolute right to manage, regulate, control, modify and/or eliminate Percolata Property
as it sees fit in its sole discretion, in any general or specific case, and that Percolata will have no liability
to you based on its exercise of such right. All data on Percolata’s servers are subject to deletion, alteration
NOTWITHSTANDING ANY VALUE ATTRIBUTED TO SUCH DATA BY YOU OR ANY THIRD PARTY, YOU UNDERSTAND AND AGREE THAT ANY DATA, ACCOUNT HISTORY AND ACCOUNT CONTENT RESIDING ON OUR SERVERS, MAY BE DELETED, ALTERED, MOVED OR TRANSFERRED AT ANY TIME FOR ANY REASON IN OUR SOLE DISCRETION, WITH OR WITHOUT NOTICE AND WITH NO LIABILITY OF ANY KIND. PERCOLATA DOES NOT PROVIDE OR GUARANTEE, AND EXPRESSLY DISCLAIMS, ANY VALUE, CASH OR OTHERWISE, ATTRIBUTED TO ANY DATA RESIDING ON OUR SERVERS.
5. PAID SERVICES
A. Billing Policies
Percolata offers a variety of services that may encompass some or all of the following: (a) Online user interface application that supports workforce scheduling tools, (b) Sales Team Optimization that auto schedules the right number and mix of employees that maximize sales, (c) Traffic Forecasting and (d) Traffic characterization (e.g. traffic counting). Customer’s pricing will be determined relative to the package of services rendered by Percolata and the pricing terms set forth in Customer’s service contract. All pricing is in US Dollars. Pricing is computed on the the minimum of the total labor hours scheduled, and the total store hours forecasted. The price per hour is set as specified in the Pricing Chart of Customer’s service contract. Percolata reserves its right to change the Fee Structure in the Pricing Chart at any time subject to 15 days advance notice to the Customer.
Labor Hours may be pre-purchased before use, otherwise they will be charged as used according to the pricing chart on the monthly invoice. If labor hours are pre-purchased, the hours will be deducted from the balance as Labor Hours are scheduled.
Forecasted Hours relate to the time period in which Percolata estimates and characterizes future traffic for Customer’s location. Forecasted Hours are equal to the number of hours of operation in Customer’s location. Customer will be charged on the monthly invoice for all Forecasted Hours according to the pricing chart in Customer’s service contract.
Fees for purchase are to be paid within 30 calendar days upon receiving invoice. In applying the rates on the Pricing Chart, the rate of the hours closest to the maximum hour per month in the table will be applied first. Then the excess hours would be computed using the rate where the total hours fall on the table. For example, if the total number of labor hours scheduled for Month X = 1440 hours, the first 500 hours will be at the rate of $.85 (500 x $.85 = $425); then the next 940 hours will be at the rate of $.70 (940 x $.70 = $658); for a total of $1,083.
The integration hours are the hours spent to integrate the customer information. The integration hours also accumulate similar to the labor hours. Once the limit on the integration hours has been reached, an integration fee of $300 per hour will be charged.
The Analysis Hours are the actual hours spent analyzing the data. The analysis hours do not accumulate. Once the limit on the analysis hours has been reached, an analysis fee of $300 per hour will be charged. To achieve lower pricing, the Customer has the option to buy the labor hours in bulk. In excess of the purchased bulk hours, the price per hour specified in the Pricing Chart listed in section 3.10 shall apply. Purchased but unused bulk hours may not be refunded.
Customer may also be eligible for a Properly Scheduled Hour Guarantee (the traffic justifies the Scheduled Hours). In order to qualify for this Guarantee, Percolata requires that Customer gives access in a timely manner to Customer’s Marketing & Local Events Calendar and Online Traffic data so that Percolata may use that to do forecasting.
B. No Refunds
You may cancel your Percolata service with 45 days written notice to Percolata; however, there are no refunds for cancellation. The Service is billed on a monthly basis and is non-refundable. There will be no refunds or credits for unused bulk labor hours. In order to treat everyone equally, no exceptions will be made. In the event that Percolata suspends or terminates your account or this Agreement you will be refunded the pro rata value of the unused bulk labor hours.
C. Payment Information; Taxes
All information that you provide in connection with a purchase or transaction or other monetary transaction interaction with the Service must be accurate, complete, and current. You agree to pay all charges incurred by users of your credit card, debit card, or other payment method used in connection with a purchase or transaction or other monetary transaction interaction with the Service at the prices in effect when such charges are incurred. All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible and pay any applicable taxes, levies or duties, if any, relating to any such purchases, transactions or other monetary transaction interactions.
Payment shall be in the form specified in the Service contract, or as subsequently updated as permitted by the Service contract and is due no later than thirty (30) calendar days from receiving invoice. We reserve the right to withhold payment or charge back to your account any amounts otherwise due to us under this Agreement, or amounts due to any breach of this Agreement by you, pending Percolata’s reasonable investigation of such breach. We also reserve the right to withhold payment or charge back to your account any amounts subject to dispute, such as in the case of credit card charge backs, pending successful resolution of the dispute. To ensure proper payment, you are solely responsible for providing and maintaining accurate contact and payment information associated with your account, which includes without limitation applicable tax information. If we believe that we are obligated to obtain tax information and you do not provide this information to us after we have requested it, we may withhold your payments until you provide this information or otherwise satisfy us that you are not a person or entity from whom we are required to obtain tax information. Any third-party fees related to returned or cancelled payments due to a contact or payment information error or omission may be deducted from the newly issued payment. You agree to pay all applicable taxes or charges imposed by any government entity in connection with your participation in the Service.
If you dispute any payment made hereunder, you must notify us in writing within thirty (30) days of such payment or from when you purport such payment would have been due, whichever is earlier. Failure to so notify Percolata shall result in the waiver by you of any claim relating to such disputed payment. Payment shall be calculated solely based on records maintained by Percolata. No other measurements or statistics of any kind shall be accepted by Percolata or have any effect under this Agreement and you shall have no audit rights hereunder. We may withhold any taxes or other amounts from payments due to you as required by law.
6. CANCELLATION AND TERMINATION
You are solely responsible for properly canceling the services. A cancellation must be submitted to
Percolata in writing with 45 days notice.
Percolata, in its sole discretion and with 45 days notice, has the right to suspend or terminate Service and refuse any and all current or future use of the Services, or any other Percolata service, for any reason. Such termination of the Service will result in the deactivation or deletion of your account or your access to your account, and the forfeiture and relinquishment of all content in your account. We reserve the right to refuse service to anyone for any reason at any time.
7. USE OF WWW.PERCOLATA.COM
Welcome to www.percolata.com. The www.percolata.com website (the "Site") is comprised of various
web pages operated by Percolata Corporation ("Percolata"). www.percolata.com is offered to you
conditioned on your acceptance without modification of the terms, conditions, and notices contained
herein (the "Terms"). Your use of www.percolata.com constitutes your agreement to all such Terms.
Please read these terms carefully, and keep a copy of them for your reference.
www.percolata.com is a News and Information Site
The purpose of this site is to inform current and potential customers, partners, and the general public about Percolata.
Percolata utilizes physical, managerial, and technical safeguards to preserve the integrity and security of your personal information and implement your privacy settings. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
C. Third-Party Links and Information
D. No Unlawful or Prohibited Use/Intellectual Property
All content included as part of the Service, such as text, graphics, logos, images, as well as the compilation thereof, and any software used on the Site, is the property of Percolata or its suppliers and protected by copyright and other laws that protect intellectual property and proprietary rights. You agree to observe and abide by all copyright and other proprietary notices, legends or other restrictions contained in any such content and will not make any changes thereto.
You will not modify, publish, transmit, reverse engineer, participate in the transfer or sale, create derivative works, delete or in any way exploit any of the content, in whole or in part, found on the Site. Percolata content is not for resale. Your use of the Site does not entitle you to make any unauthorized use of any protected content, and in particular you will not delete or alter any proprietary rights or attribution notices in any content. You will use protected content solely for your personal use, and will make no other use of the content without the express written permission of Percolata and the copyright owner. You agree that you do not acquire any ownership rights in any protected content. We do not grant you any licenses, express or implied, to the intellectual property of Percolata or our licensors except as expressly authorized by these Terms.
E. Electronic Communications Visiting www.percolata.com or sending emails to Percolata constitutes electronic communications. You consent to receive electronic communications and you agree that all agreements, notices, disclosures and other communications that we provide to you electronically, via email and on the Site, satisfy any legal requirement that such communications be in writing.
Percolata does not knowingly collect, either online or offline, personal information from persons under the age of thirteen. If you are under 18, you may use www.percolata.com only with permission of a parent or guardian.
F. Termination/Access Restriction
Percolata reserves the right, in its sole discretion, to terminate your access to the Site and the related services or any portion thereof at any time, without notice. To the maximum extent permitted by law, this agreement is governed by the laws of the State of California and you hereby consent to the exclusive jurisdiction and venue of courts in California in all disputes arising out of or relating to the use of the Site. Use of the Site is unauthorized in any jurisdiction that does not give effect to all provisions of these Terms, including, without limitation, this section.
You agree that no joint venture, partnership, employment, or agency relationship exists between you and Percolata as a result of this agreement or use of the Site. Percolata's performance of this agreement is subject to existing laws and legal process, and nothing contained in this agreement is in derogation of Percolata's right to comply with governmental, court and law enforcement requests or requirements relating to your use of the Site or information provided to or gathered by Percolata with respect to such use. If any part of this agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the agreement shall continue in effect.
Unless otherwise specified herein, this agreement constitutes the entire agreement between the user and Percolata with respect to the Site and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between the user and Percolata with respect to the Site. A printed version of this agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. It is the express wish to the parties that this agreement and all related documents be written in English.
8. VENDORS AND CONTRACTORS
Percolata may use vendors, contractors or other third-party service providers to help provide the Service to you, and we may change our use of such vendors and contractors at our sole discretion and without notice to you.
You agree to defend, indemnify and hold harmless Percolata and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Service, including any data or content transmitted or received by you; (ii) your violation of any term of this Agreement, including without limitation your breach of any of the representations and warranties above; (iii) your violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights; (iv) your violation of any applicable law, rule or regulation; (v) your gross negligence or willful misconduct; or (vi) any other party’s access and use of the Service (or access and use of any third-party service via the Service) with your unique username, password or other appropriate security code.
10. NO WARRANTY
THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE
SERVICE IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE
LAW, THE SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER
EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO
ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM
PERCOLATA OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT
EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, PERCOLATA, ITS
SUBSIDIARIES, ITS AFFILIATES, AND ITS LICENSORS DO NOT WARRANT THAT THE
CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICE WILL MEET YOUR
REQUIREMENTS; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME
OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE
CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL
COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE
USE OF THE SERVICE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY
RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR
LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE SERVICE.
PERCOLATA DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY
FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY
THROUGH THE SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, AND PERCOLATA
WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU
AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
FEDERAL LAW, SOME STATES, PROVINCES AND OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION AND LIMITATIONS OF CERTAIN IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS AND EXCLUSIONS UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
11. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL
PERCOLATA, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR
LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL,
CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION
DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE
LOSSES, ARISING OUT OF OR RELATING TO THE USE OF, OR INABILITY TO USE, THIS
SERVICE. UNDER NO CIRCUMSTANCES WILL PERCOLATA BE RESPONSIBLE FOR ANY
DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER
UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR ACCOUNT OR THE
INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PERCOLATA ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT OR THE SERVICE; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (VII) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL PERCOLATA, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO PERCOLATA HEREUNDER.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF PERCOLATA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
The Service is controlled, operated and administered by Percolata from our offices within the USA. If you access the Service from a location outside the USA, you are responsible for compliance with all local laws. You agree that you will not use the Percolata Content accessed through www.percolata.com in any country or in any manner prohibited by any applicable laws, restrictions or regulations.
12. GOVERNING LAW
You agree that: (i) the Service shall be deemed solely based in California; and (ii) the Service shall be deemed a passive one that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than California. This Agreement shall be governed by the internal substantive laws of the State of California, excluding its conflict of laws principles. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in Santa Clara County, California, and any subsequent appeals therefrom. You waive any objection (on the grounds of jurisdiction, forum non conveniens or otherwise) to the exercise of such jurisdiction over you by any such courts.
This Agreement, and any rights and licenses granted hereunder, may be transferred or assigned by you, but may be assigned by Percolata with written notice to the other party; provided that any such third party shall be obligated to honor the terms of this agreement. Any attempted transfer or assignment in violation hereof shall be null and void.
B. Notification Procedures and Changes to the Agreement
C. Entire Agreement/Severability
This Agreement, together with any amendments and any additional agreements you may enter into with Percolata in connection with the Service, shall constitute the entire agreement between you and Percolata concerning the Service. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.
D. No Waiver
No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and Percolata’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
Percolata welcomes your questions or comments regarding the Terms:
3630 El Camino Real
Palo Alto, CA 94306
This Agreement was last modified on June 27, 2017