The website located at https://www.compose.com (the “Site”) is a copyrighted work belonging to Compose, Inc., an IBM Company (“Company”, “us”, “our”, and “we”). Company provides a fully managed service that allows clients to manage their data (collectively, with all other services provided through the Site, the “Services”). Certain features of the Services or Site may be subject to additional guidelines or terms, which will be posted within the Service or on the Site in connection with such features. All such additional guidelines and terms are incorporated by reference into this Agreement.
THESE TERMS OF SERVICE (THE “AGREEMENT”) SET FORTH THE TERMS AND CONDITIONS FOR YOUR USE OF THE SITE AND SERVICES. BY CLICKING “I ACCEPT” WHERE THIS OPTION IS MADE AVAILABLE, OR BY ACCESSING AND USING THE SITE OR SERVICES, YOU ACCEPT THIS AGREEMENT AND REPRESENT AND WARRANT THAT YOU i) HAVE FULL AUTHORITY TO BIND YOURSELF OR THE ENTITY YOU REPRESENT TO THIS AGREEMENT; AND ii) HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF YOURSELF OR THE ENTITY YOU REPRESENT. YOU MAY NOT ACCESS OR USE THE SITE OR SERVICES OR ACCEPT THE AGREEMENT IF YOU ARE NOT AT LEAST 18 YEARS OF AGE. IF YOU DO NOT AGREE WITH ALL OF THE PROVISIONS OF THIS AGREEMENT, DO NOT CLICK “I ACCEPT” OR ACCESS AND USE THE SITE OR SERVICES.
1.1. Account Creation
In order to use certain features of the Site (e.g., to use the Services), you must provide certain information about yourself to create an account (“Account”). You represent and warrant that: (a) all required account information you submit is truthful and accurate; and (b) you will maintain the accuracy of such information. You may delete your Account at any time, for any reason, by following the instructions on the Site. Company may suspend or terminate your Account in accordance with the Term and Termination section below. We will not be liable for any loss or damage caused by any unauthorized use of your Account.
1.2. Account Responsibilities
You are responsible for maintaining the confidentiality of your Account login information and are responsible for all activities that occur under your Account. Company is not liable for any loss or damage arising from your failure to comply with the above requirements.
2. Payment Terms
2.1. Hosted Plans
You may order the Service by following the directions on the Site. Once you order the Service, your subscription to the Service will continue until you cancel your Service pursuant to the Cancellation Policy set forth at https://www.compose.com/cancellation. In the event that you order a limited, free version of the Service (i.e., a sandbox database) and wish to upgrade the Service, you may do so by following the directions on the Site.
2.2. Payment Terms
If you order the Service, you agree to pay the then-current applicable Service fee listed on the Site at https://www.compose.com/pricing. Company may change the pricing for the Services (from time to time in its sole discretion) by updating the Site. In the event that Company changes the pricing for the Services, the fees payable to Company by you will increase or decrease in accordance with any such modification upon the date specified on the Site. Unless you and Company establish billing via direct invoice, Company will automatically bill the credit card you submitted when ordering the Service on the date the Service is activated, and each month thereafter, until you cancel the Service or the Service is otherwise terminated. All payments are non-refundable. You hereby authorize Company to bill your credit card as described above. If any fee cannot be charged to your credit card for any reason, Company may provide you, via email, notice of such non-payment and a link for you to update your payment information. If non-payment is not remedied within seven (7) days after receiving such notice, then Company may terminate the Service.
All other payments will be made in accordance with the payment schedule described in the applicable invoice. All amounts stated in this Agreement or on any invoice are in U.S. dollars, and all payments will be made in U.S. dollars. Amounts are due upon receipt of the invoice and payable within 30 days of the invoice date to an account specified by Company. Late payment fees may apply. All amounts are exclusive of applicable taxes, levies, customs or other duties, or fees imposed by any authorities resulting from your acquisitions under this Agreement. You will pay applicable sales, use, and other such taxes related to the services provided hereunder, (excluding any taxes imposed or based on Company’s income) or provide Company evidence of exemption from such taxes.
Subject to the terms of this Agreement, Company grants you a non-transferable, non-exclusive, license to access and use the Services.
3.2. Certain Restrictions
The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise exploit the Services in a manner not expressly permitted by this Agreement; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Services; (c) you shall not access the Services in order to build a similar or competitive service; (d) access or use the Service in a manner to avoid incurring fees or excessive usage limits; and (e) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Any future release, update, or other addition to functionality of the Services shall be subject to the terms of this Agreement. All copyright and other proprietary notices on any Services content must be retained on all copies thereof.
Company reserves the right, at any time, to modify, suspend, or discontinue the Site or Services or any part thereof with or without notice. You agree that Company will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Site or Services or any part thereof, except and if otherwise expressly set forth in the Term and Termination section.
3.4. Support and Maintenance
Company offers support in connection with the Services as described on the Site at https://help.compose.com/docs/compose-email-support/. Company reserves the right to change the support and maintenance provisions at any time. Company will notify you by prominently posting notice of the changes on the Site.
Company will endeavor to schedule maintenance to the Site and Services during non-peak usage hours. Company may temporarily limit or suspend the availability of all or part of the Site and Services if it is necessary for reasons of public safety, security, maintenance of the Site and Services, interoperability of services, data protection, or to perform work that is necessary for operational or technical reasons. If emergency maintenance is required Company will notify your technical contact immediately upon commencement of the maintenance.
Excluding your User Content (as defined below), all the intellectual property rights in the Site and Services are owned by Company or Company’s licensors. The provision of the Site and Services does not transfer to you or any third party any right, title or interest in or to such intellectual property rights.
4. User Content
4.1. User Content
“User Content” means any and all information and content that a user submits to, or uses with, the Site or Services (e.g., content in the user’s profile or blog postings). You are solely responsible for your User Content and you assume all risks associated with use of your User Content. You represent and warrant that your User Content does not violate the Acceptable Use Policy (as defined below). You hereby grant to Company a license to use your User Content, and to grant sublicenses of the foregoing, solely for the purposes of including your User Content in the Site and Services.
“Personal Data” means any information that can be used to identify a specific individual, such as name, email address, home address, or phone number that you include in User Content. You will (1) obtain all legally required consents before making any Personal Data available to the Site and Services, and maintain those consents throughout the term of this Agreement and your Account; and (2) not use the Site and Services in conjunction with Personal Data to the extent that doing so would violate applicable data protection laws.
The Site and Services are not intended for the storage or receipt of any: (1) Personal Data and other data, the loss of which would trigger a data breach notification requirement, or (2) health information, including without limitation protected health information as defined under the Health Information Portability and Accountability Act of 1996, as amended. You are responsible for all costs (including costs of litigation and settlements) arising from any claims, including third party claims, that Company may incur relating to any such information made available by you to the Site and Services.
You are responsible for obtaining all necessary permissions to use, provide, store and process User Content in the Site and Services. You are responsible for adequate User Content back-up. Some of your User Content may be subject to governmental regulation or may require security measures beyond those specified by Company. You will not input or provide such User Content unless Company has first agreed in writing to implement additional required security measures.
Upon request, you will provide Company with a document certifying your compliance with this section.
4.2. Acceptable Use Policy
The Site or Services may not be used for unlawful, obscene, offensive or fraudulent content or activity, in any jurisdiction for any user, such as advocating or causing harm, interfering with or violating the integrity or security of a network or system, evading filters, sending unsolicited, abusive or deceptive messages, viruses or harmful code, or violating third party rights. If there is a complaint or notice of violation, use may be suspended until resolved, and terminated in accordance with the Term and Termination section below if not resolved promptly. Company may remove or modify your User Content and/or report you to law enforcement authorities.
5. Third Party Sites
You may access third party websites and services (collectively, “Third Party Sites”) via the Site. Such Third Party Sites are not under the control of Company and Company is not responsible for any Third Party Sites. Company provides these Third Party Sites as a convenience only and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third Party Sites. You use all Third Party Sites at your own risk. When you link to a Third Party Site, the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering practices.
THE SITE AND SERVICES ARE PROVIDED “AS-IS” AND “AS AVAILABLE” AND COMPANY (AND ITS THIRD PARTY PROVIDERS) DOES NOT WARRANT UNINTERRUPTED OR ERROR-FREE OPERATION OF THE SITE AND SERVICES OR THAT COMPANY WILL CORRECT ALL DEFECTS OR PREVENT THIRD PARTY DISRUPTIONS OR UNAUTHORIZED THIRD PARTY ACCESS. THESE WARRANTIES ARE THE EXCLUSIVE WARRANTIES FROM COMPANY AND REPLACE ALL OTHER WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OR CONDITIONS OF SATISFACTORY QUALITY, MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.
7. Limitation of Liability
COMPANY’S ENTIRE LIABILITY FOR ALL CLAIMS RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNT OF ANY ACTUAL DIRECT DAMAGES INCURRED BY YOU UP TO 12 MONTHS’ CHARGES FOR THE SITE OR SERVICE THAT IS THE SUBJECT OF THE CLAIM, REGARDLESS OF THE BASIS OF THE CLAIM (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY, INDEMNITY OR OTHERWISE). THIS LIMIT APPLIES COLLECTIVELY TO COMPANY, ITS SUBSIDIARIES, CONTRACTORS, AND SUPPLIERS. COMPANY WILL NOT BE LIABLE FOR (i) SPECIAL, INCIDENTAL, EXEMPLARY, INDIRECT, OR ECONOMIC CONSEQUENTIAL DAMAGES, OR LOST PROFITS, BUSINESS, VALUE, REVENUE, GOODWILL, OR ANTICIPATED SAVINGS, OR (ii) ANY LOSS OF OR DAMAGE TO USER CONTENT WHICH MAY BE INCURRED BY YOU, INCLUDING BUT NOT LIMITED TO LOSS OF OR DAMAGE TO USER CONTENT AS A RESULT OF:
- ANY CHANGES WHICH COMPANY MAY MAKE TO THE SITE OR SERVICES, OR FOR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE SITE OR SERVICES (OR ANY FEATURES WITHIN THE SITE OR SERVICES);
- THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY USER CONTENT;
- YOUR FAILURE TO PROVIDE COMPANY WITH ACCURATE ACCOUNT INFORMATION; OR
- YOUR FAILURE TO KEEP YOUR PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL.
TO THE EXTENT THE FOREGOING EXCLUSIONS OF LIABILITY ARE NOT PERMITTED UNDER APPLICABLE LAW, COMPANY’S LIABILITY IN SUCH CASE WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
8. Indemnification from Customers
You agree to indemnify, defend and hold Company harmless from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys' fees) arising out of or relating to claims concerning: (a) Your use of the Service,; (b) breach of the Terms of Service; (c) Your content or the combination of Your content with other applications, content or processes, including any claim involving alleged infringement or misappropriation of third-party rights by Your content or by the use, development, design, production, advertising or marketing of Your content; or (d) a dispute between us and You.
9. Term & Termination
Subject to this Section, this Agreement will remain in full force and effect while you use the Site or Services. Company may (a) suspend your rights to use the Site and/or Services (including your Account) or (b) terminate this Agreement, at any time for any reason at Company’s sole discretion, including for any use of the Site or Services in violation of this Agreement. Within ten (10) days of such suspension or termination, you may request access to your Account and the Site and/or Services for the sole purpose of exporting User Content and we shall grant such access, provided that you have not violated any payment provision or violated the Acceptable Use Policy of this Agreement. If you do not request access within this period, your Account and right to access and use the Site and Services will terminate or be suspended immediately. You understand that any termination of your Account involves deletion of your associated User Content. Company will not have any liability whatsoever to you for any termination of this Agreement, including for termination of your Account or deletion of your User Content. Notwithstanding anything to the contrary, if Company terminates this Agreement other than due to your violation of this Agreement or discontinues the Service, Company will provide you a pro-rata refund of your last monthly payment for any pre-paid but unused Services. Any terms that by their nature extend beyond Agreement termination remain in effect until fulfilled, and apply to successors and assignees.
This Agreement is subject to revision from time to time. We will notify you by prominently posting notice of the changes on our Site or by any other means by which we may notify you. Any changes to this Agreement will be effective 30 days following such notification of the changes. These changes will be effective immediately for new users of our Site or Services. Continued use of our Site or Services following notice of such changes shall indicate your acknowledgement of and agreement to such changes.
Company implements and maintains practices and procedures, which may be revised periodically, regarding the systems used to host and operate the Site and Services. These practices and procedures are designed to reduce the vulnerability of our systems to accidental loss, unlawful intrusions, unauthorized access, disclosure or alteration or wrongful conduct that may interfere with, misappropriate, or otherwise damage the User Content or your use of the Site and Services. However, no method of transmission over the Internet, or method of electronic storage, is totally secure.
You understand and agree that new technology, configuration changes, software upgrades and routine maintenance, among other items, can create new and unknown security exposures. Moreover, computer "hackers" and other third parties continue to employ increasingly sophisticated techniques and tools, resulting in ever-growing challenges to individual computer system security. Company’s provision of the Site and Services does not constitute any representation or warranty by Company about the security of your User Content while loaded on or being transmitted through the Site and Services including, but not limited to, any representation or warranty that your User Content is safe from intrusions, viruses, virus threats, or any other security exposures.
10.3. Compliance with Laws.
Each party is responsible for complying with: i) laws and regulations applicable to its business and content, and ii) import, export and economic sanction laws and regulations, including those of the United States that prohibit or restrict the export, re-export, or transfer of products, technology, services or data, directly or indirectly, to or for certain countries (current countries prohibited under United States law include Cuba, Iran, North Korea, Sudan, and Syria), end uses or end users.
10.4. Prohibited Uses
You may not use or authorize others to use the Service or any part of the Service, in support of any of the following High Risk Activities: design, construction, control, use or maintenance of nuclear facilities, mass transit systems, air traffic control systems, weapons systems, or aircraft navigation or communications, or any other activity where Service failure could give rise to a material threat of death, personal injury or severe physical or environmental damage.
10.5. Governing Law.
Both parties agree to the application of the laws of the State of New York, United States, without regard to conflict of law principles. The rights and obligations of each party are valid only in the country of Client’s business address. If any provision of this Agreement is invalid or unenforceable, the remaining provisions remain in full force and effect. Nothing in this Agreement affects statutory rights of consumers that cannot be waived or limited by contract. The United Nations Convention on Contracts for the International Sale of Goods does not apply to transactions under this Agreement.
10.6. Independent Contractor.
Company is an independent contractor, not your agent, joint venturer, partner, or fiduciary, and does not undertake to perform any of your regulatory obligations, or assume any responsibility for your business or operations. Each party is responsible for determining the assignment of its personnel and contractors, and for their direction, control, and compensation.
Neither party may assign this Agreement, in whole or in part, without the prior written consent of the other. Assignment of Company rights to receive payments and by Company in conjunction with the sale of the portion of Company’s business that includes the Site or Service is not restricted.
10.8. Business Contact Information; Subcontractors.
Company and its affiliates, and their subcontractors, may process and store business contact information of your personnel in connection with the performance of this Agreement wherever they do business. Company may use personnel and resources in locations worldwide and third party suppliers to support the delivery of the Site and Services.
All notices under this Agreement must be in writing and sent to the address on record, unless a party designates in writing a different address. The parties consent to the use of electronic means and facsimile transmissions for communications as a signed writing.
No right or cause of action for any third party is created by this Agreement or any transaction under it. Neither party will bring a legal action arising out of or related to this Agreement more than two years after the cause of action arose. Neither party is responsible for failure to fulfill its non-monetary obligations due to causes beyond its control. Each party will allow the other reasonable opportunity to comply before it claims the other has not met its obligations. Where approval, acceptance, consent, access, cooperation or similar action by either party is required, such action will not be unreasonably delayed or withheld.
10.11. Entire Agreement.
This Agreement supersedes any course of dealing, discussions or representations between the parties and all previous versions of this Agreement. Any reproduction of this Agreement made by reliable means is considered an original.
This Agreement applies to Company and you and its and your respective Enterprise companies who avail themselves of this Agreement. The signatories will coordinate the activities of Enterprise companies under this Agreement. Enterprise companies include (i) companies within the same country that you or Company control (by owning greater than 50% of the voting shares), and (ii) any other entity that controls, is controlled by or is under common control as you or Company and has signed a participation attachment.
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