Terms and Conditions
By continuing to use this site (the “Hosted Service”), you agree to the following terms and conditions:
These Terms and Conditions (“Terms and Conditions”) govern your (“Client” or “you”) use of our products and services (the “Hosted Services”) and our website Owlytica.com (the “Site”). By using Hosted Services, you agree to these Terms and Conditions. If you do not agree to these Terms and Conditions, you may not use the Hosted Services or visit or browse the Site. These Terms and Conditions constitute a binding legal agreement between you and Owlytica, Inc. (“Owlytica”, “we,” “us,” and “our”). Please read them carefully.
1. MODIFICATIONS TO TERMS AND CONDITIONS
a. Unless a separate written agreement exists between Owlytica and the Client, we reserve the right to change these Terms and Conditions without notice by (a) posting a revision on this Site; or (b) sending information regarding the amendment to the email address you provide to us. YOU ARE RESPONSIBLE FOR REGULARLY REVIEWING THIS SITE TO OBTAIN TIMELY NOTICE OF ANY AMENDMENTS. YOU SHALL BE DEEMED TO HAVE ACCEPTED SUCH AMENDMENTS BY CONTINUING TO USE THE HOSTED SERVICES FOR MORE THAN 10 DAYS AFTER SUCH AMENDMENTS HAVE BEEN POSTED OR INFORMATION REGARDING SUCH AMENDMENTS HAS BEEN SENT TO YOU. You agree that we shall not be liable to you or to any third party for any modifications of the Terms and Conditions.
2. USE OF THE Owlytica SERVICE
a. In providing Hosted Services, several system functions require that we periodically send automated email to review administrators and review participants (“System Email”). The content of these emails are regulated by Owlytica and are subject to edits by Owlytica management.
b. Client agrees to adhere to all industry-standard guidelines and applicable law with regard to unsolicited email when using Hosted Services, and that the email address(es) you enter into the system belong to willing participants. Emailing of unsolicited email, or emailing participants after they have submitted a written request to be excluded or unsubscribe will result in suspension of Client’s account on the first occurrence and termination of Client’s account on any subsequent occurrence. No refunds will be made on accounts terminated due to email abuse.
c. We do not support the use of “personal” or non-corporate email addresses for the sending or receiving of System Email. Due to spam filtering restrictions, these addresses (such as those ending in yahoo.com, gmail.com, comcast.net, hotmail.com, outlook.com, etc.) are unsuitable and unreliable for use in an online enterprise application. Client agrees to assume responsibility for any support and performance problems arising from use of non-corporate addresses.
d. Client agrees to assume responsibility for the delivery of System Email to the users of the service, and assume any costs associated with adjustments or modifications necessary to recipients’ firewalls or spam filters required for delivery of System Email.
e. Hosted Service licenses may not be transferred to any other person or entity and except as expressly set out in the Terms and Conditions are intended for use only within your organization.
f. Owlytica will automatically and permanently delete Client’s data housed in the Hosted Service after the termination of Client’s subscription.
g. Free Trial accounts may be used only for the purpose of evaluation of the Hosted Services for purchase by the Client. Unless otherwise agreed in writing, a Free Trial entitles the Client to access the Hosted Services for a period of 30 days. Only one free trial per Client is permitted. Owlytica reserves the right to cancel a Free Trial account at any time without notice and for any reason. Owlytica also reserves the right to modify features on Free Trial accounts without notice.
h. The following types of businesses or organizations are NOT allowed to participate in the Owlytica Hosted Services: organizations encouraging illegal activity or racism, organizations providing instructions or discussions about performing illegal activities, sites that promote or utilize software or services designed to deliver unsolicited email, or any other sites we deem to be inappropriate.
i. For Clients licensing the Owlytica Hosted Service for use with their own customers, online advertising (via Google Adwords, Bing, Capterra etc.) of services pertaining to service operations that compete with Owlytica’s advertisements are not permitted.
3. OWNERSHIP AND LICENSES
a. Owlytica retains all ownership rights in the Owlytica Hosted Services as well as any customizations to the application resulting from Client’s suggestions, feedback, recommendations or modification requests. Client may access and export its data (any data entered by the Client’s users) at any time during the term of the Client’s subscription. Client retains all ownership rights in the data it enters into the Owlytica Hosted Services. Owlytica licenses Client copyrighted materials for the sole purpose of the use of the Owlytica tool and generation of reports. Distribution, modification of all or part of the content in any form is strictly prohibited for any purpose other than use in the Owlytica tool. Client may not, without the express prior written permission of Owlytica distribute or commercially exploit the content. Nor may Client transmit it or store it in any other website or other form of electronic retrieval system.
b. Owlytica shall have a royalty-free, fully paid-up, nonexclusive, perpetual, irrevocable, worldwide, transferable license to use, copy, modify, or distribute, including by incorporating into any Hosted Service, any suggestions, enhancement requests, recommendations or other feedback provided by Client or its users relating to the operating of any Hosted Service.
c. Unless otherwise agreed in writing, new account setups and license additions are processed within an AS-Available basis.
4. USE OF LOGOS, TRADEMARKS AND CONTACT INFORMATION
a. Owlytica retains ownership and all rights to Owlytica logos, trademarks, software, trade secrets, databases, reports, and Site. The Owlytica corporate logo and company contact information (phone number and Web address) must appear on all screenshots, email and other electronic documents generated by our system. Distribution of materials without the Owlytica logo, unless otherwise arranged in writing, will be seen as a direct violation of the Owlytica terms and conditions. Clients licensing the Owlytica Hosted Services for use with their own customers must display the “Powered By Owlytica” logo on any media where screen captures or other images or content from the Owlytica system are visible. This includes, but is not limited to presentations, brochures, letters, memoranda, Website pages or any other media, whether delivered printed or electronically. For other purposes, Client should use the Owlytica logo shown below with no alterations to colors, content or size. Owlytica reserves the right to review and modify any media displaying its logo. Client agrees to remove Owlytica logos, screen capture and any other references to the Hosted Services from all media upon termination of license to Hosted Services.
5. SUPPORT
a. Owlytica is in a developmental state and support will be provided on an As-Available basis.
6. SERVICE LEVEL ASSURANCE
a. Owlytica agrees to provide system availability on an “AS-IS” and “AS-AVAILABLE” basis.
7. Owlytica LIMITATIONS DUE TO THIRD PARTIES
a. General. Certain Owlytica services rely on or interoperate with third party products and services. These third party products and services are beyond Owlytica’s control, but their operation may impact or be impacted by the use and reliability of the Owlytica services. You acknowledge and agree that: (i) the use and availability of certain features of the services are dependent on third party product vendors and service providers, (ii) these third products and services may not operate in a reliable manner 100% of the time, and they may impact the way that the Owlytica services operate, and (iii) Owlytica is not responsible for damages and losses due to the operation of these third party products and services.
8. CONFIDENTIALITY
a. Owlytica’s Confidential Information. Owlytica’s “Confidential Information” means all confidential and proprietary information of Owlytica disclosed to Client, 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, including, without limitation, pricing, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to Owlytica; (ii) was known to Client prior to its disclosure by Owlytica without breach of any obligation owed to Owlytica; (iii) was independently developed by Client without breach of any obligation owed to Owlytica; or (iv) is received from a third party without breach of any obligation owed to Owlytica.
b. Client’s Confidential Information. Client’s “Confidential Information” means all confidential and proprietary information of Client disclosed to Owlytica, 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 shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to Client; (ii) was known to Owlytica prior to its disclosure by Client without breach of any obligation owed to Client; (iii) was independently developed by Owlytica without breach of any obligation owed to Client; or (iv) is received from a third party without breach of any obligation owed to Client.
c. Duty of Care and Use Restrictions. The party receiving Confidential Information is referred to herein as “Receiving Party” and the party disclosing Confidential Information is referred to herein as “Disclosing Party”. Receiving Party shall not use or disclose any Confidential Information of Disclosing Party for any purpose outside the scope of Hosted Services, except with Disclosing Party’s prior written consent. Receiving Party shall protect the confidentiality of Disclosing Party’s Confidential Information in the same manner that it protects the confidentiality of its own confidential information of like kind (but in no event using less than reasonable care). In addition, the Receiving party will disclose the Disclosing Party’s Confidential Information only to those of the Receiving Party’s personnel who have a “need to know” such Confidential Information (and only to the extent necessary) in order to fulfill the purposes contemplated by the Agreement. Client will ensure that each of its personnel (and its clients in the case of Consultant Users) who have access to Owlytica’s Confidential Information shall be bound to uphold the obligations of confidentiality set forth herein. Each party represents and warrants that it will collect, maintain and handle all personal data in compliance with all applicable data privacy and protection laws. Receiving Party shall promptly notify Disclosing Party if it becomes aware of any actual or reasonably suspected breach of confidentiality of Disclosing Party’s Confidential Information.
d. If Receiving Party is compelled by law to disclose Confidential Information of Disclosing Party, it shall provide Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if Disclosing Party wishes to contest the disclosure.
e. If Receiving Party discloses (or threatens to disclose) any Confidential Information of Disclosing Party in breach of confidentiality protections hereunder, Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being acknowledged by the parties that any other available remedies are inadequate.
9. RISK OF USE & IMPROPER USE
a. Client agrees to use Hosted Services at its own risk. Client agrees that it has made its own determination regarding the usefulness of the Hosted Services.
b. Client assumes all liability for use of the system inside or outside of recommended use guidelines as provided in documentation or training. Misuse of the tool for any reason deemed inappropriate by Owlytica may result in termination of the account. Client agrees to adhere to recommended procedures for protecting non-managerial respondents’ anonymity in providing responses to performance surveys.
c. Client assumes all responsibility for configuring and managing feedback projects unless contracted in writing for project management services with Owlytica. Owlytica support does not have the ability to modify Client responses, survey structure, user databases or other information entered into the system by the Client in the event of a data-entry or any other type of user mistake.
d. Client agrees not to attempt to gain unauthorized access to any portion or feature of the Hosted Service or Site, or any other systems or networks connected to the Hosted Service or Site or to any Owlytica server, or to any of the services offered on or through the Service, by hacking, password “mining” or any other illegitimate means. Client may not probe, scan or test the vulnerability of the Site or any network connected to the Site, nor breach the security or authentication measures on the Site or any network connected to the Site. Client may not reverse look-up, trace or seek to trace any information on any other user of or visitor to the Site, or any other customer of Owlytica, including any Owlytica account not owned by you, to its source, or exploit the Site or any service or information made available or offered by or through the Site, in any way where the purpose is to reveal any information, including but not limited to personal identification or information, other than your own information, as provided for by the Site. Client agrees that it will not take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Site or Owlytica’s systems or networks, or any systems or networks connected to the Site or to Owlytica. Client agrees not to use any device, software or routine to interfere or attempt to interfere with the proper working of the Site or any transaction being conducted on the Site, or with any other person’s use of the Site.
10. DISCLAIMER OF WARRANTIES
a. EXCEPT AS EXPRESSLY SET OUT IN THESE TERMS AND CONDITIONS, THE HOSTED SERVICES ARE PROVIDED “AS-IS” AND Owlytica DISCLAIMS ALL CONDITIONS AND WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY CONDITIONS OR WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ACCURACY, QUIET ENJOYMENT, TITLE, MERCHANTABILITY AND THOSE THAT ARISE FROM ANY COURSE OF DEALING OR COURSE OF PERFORMANCE ARE HEREBY DISCLAIMED. EXCEPT AS EXPRESSLY SET OUT IN THESE TERMS AND CONDITIONS, Owlytica DOES NOT WARRANT THAT CUSTOMER’S USE OF HOSTED SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ERRORS WILL BE CORRECTED.
11. LIMITATION OF LIABILITY
a. TO THE EXTENT PERMITTED BY LAW (A) IN NO EVENT SHALL Owlytica BE LIABLE, WHETHER UNDER THEORY OF CONTRACT, TORT OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, OR SPECIAL DAMAGES (INCLUDING ANY DAMAGE TO BUSINESS REPUTATION, LOST PROFITS OR LOST DATA), WHETHER FORESEEABLE OR NOT AND WHETHER THE PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (B) EITHER PARTY’S AGGREGATE CUMULATIVE LIABILITY TO THE OTHER PARTY, IN CONNECTION WITH THESE TERMS AND CONDITIONS AND THE HOSTED SERVICES SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY CLIENT TO Owlytica FOR HOSTED SERVICES IN THE MOST RECENT TWELVE (12) MONTHS.
12. INDEMNITY
a. THE PARTIES AGREE TO DEFEND, INDEMNIFY AND HOLD ONE ANOTHER HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, LIABILITY COSTS AND EXPENSES (INCLUDING BUT NOT LIMITED TO ATTORNEY’S FEES) ARISING FROM THEIR VIOLATION OF THIS AGREEMENT OR ANY THIRD-PARTY’S RIGHTS, INCLUDING BUT NOT LIMITED TO INFRINGEMENT OF ANY COPYRIGHT, VIOLATION OF ANY PROPRIETARY RIGHT AND INVASION OF ANY PRIVACY RIGHTS.
13. Owlytica COPYRIGHT NOTICE
a. You may print and download portions of material from the Site. We retain ownership and all rights to Owlytica logos, trademarks, software, trade secrets, databases, reports, and the Site.
14. SERVICE AGREEMENTS
a. Owlytica may enter into a written subscription agreement, license agreement, services agreement or similar agreement executed by an officer of Owlytica with certain Clients (each a “Service Agreement”). If there is a conflict between these Terms and Conditions and the Service Agreement, the applicable Service Agreement will control.
15. GENERAL PROVISIONS
a. The Hosted Services will be accessed and delivered via the internet. Customer is responsible for obtaining the necessary equipment and internet connection that is sufficiently capable of accessing and using the Hosted Services.
b. Client agrees to use Hosted Services in compliance with applicable law, and not: (a) resell, sublicense, lease, time-share or otherwise make Hosted Services available to any third party other than as contemplated by this Agreement; or (b) use the Hosted Services to send or store infringing or unlawful material or material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs.
c. Client agrees to not (a) modify, copy or create derivative works based on the Hosted Services; (b) reverse engineer the Hosted Services; (c) access the Hosted Services for the purpose of building a competitive product or service or copying its features or user interface; (d) create Internet “links” to or from any Hosted Service, or “frame” or “mirror” any content forming part of Hosted Service, other than on Client’s or its affiliates’ own intranets or otherwise for its or its affiliates’ own internal business purposes; or (e) use the Hosted Service, for purposes of product evaluation, benchmarking or other comparative analysis intended for publication without Owlytica’s prior written consent.
d. These Terms and Conditions will not be interpreted or construed as: (a) creating or evidencing any association, joint venture, partnership, or franchise between the parties; or (b) imposing any partnership or franchise obligation or liability on either party. Client must not represent to anyone that Client is an agent of Owlytica or is otherwise authorized to bind or commit Owlytica in any way without Owlytica’s prior authorization. These Terms and Conditions do no create any third party beneficiary rights.
e. Client may not assign its rights, duties, or obligations under these Terms and Conditions or any license without Owlytica’s prior written consent. If consent is given, these Terms and Conditions will bind Client’s successors and assigns.
f. Owlytica may freely assign its rights, duties, and obligations under these Terms and Conditions and any license. Owlytica may utilize a subcontractor or other third party to perform its duties under these Terms and Conditions.
g. Each party will be excused from any delay or failure in performance hereunder, other than the payment of money, caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to acts of God, earthquake, labor disputes and strikes, riots, war and governmental requirements (each a “Force Majeure Event”). The obligations and rights of the party so excused will be extended on a day to day basis for the duration of the Force Majeure Event.
h. Any legal action by Client arising out of these Terms and Conditions, the Hosted Services or the Site must be initiated within one year after the cause of action arises.
i. The waiver by either party of any breach of any provision of these Terms and Conditions does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with these Terms and Conditions will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of these Terms and Conditions. No waiver of any provision of these Terms and Conditions shall be effective unless in writing and signed by Client and Owlytica.
j. If any part of these Terms and Conditions is found to be illegal, unenforceable, or invalid, the remaining portions of these Terms and Conditions will remain in full force and effect. If any material limitation or restriction on the grant of any license to Client under these Terms and Conditions is found to be illegal, unenforceable, or invalid, the license will immediately terminate.
k. These Terms and Conditions (along with any applicable Service Agreement) represent the entire agreement of the parties, and supersede all prior or contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter.
l. This Agreement will be construed under the laws of the State of Georgia without reference to conflicts of law provisions. Any dispute in connection with these Terms and Conditions, the Hosted Services and the Site shall be submitted to confidential arbitration to be administered by the American Arbitration Association in Atlanta, Georgia, USA, except that to the extent (i) you have in any manner violated or threatened to violate our intellectual property rights or (ii) either party has in any manner violated or threatened to violate the confidentially provisions set forth in Section 11, the party seeking relief may seek injunctive or other appropriate relief in the state court of competent jurisdiction in Fulton County, Georgia (for actions filed in state court) or the United States District Court for the Northern District of Georgia, Atlanta Division (for actions filed in federal court) and you consent to exclusive jurisdiction and venue in such courts. Arbitration under these Terms and Conditions shall be conducted under the rules then prevailing of the American Arbitration Association. The arbitrator’s award shall be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under these Terms and Conditions shall be joined to an arbitration involving any other party subject to these Terms and Conditions, whether through class arbitration involving any other party subject to these Terms and Conditions, whether through class arbitration proceedings or otherwise.