TERMS AND CONDITIONS FOR LA CHART SAAS SERVICES ORDER FORM
SAAS SERVICES AND SUPPORT
Subject to the terms of this Agreement, La Chart will use commercially reasonable efforts to provide Customer the the Services in accordance with the Service Level Terms attached hereto as Appendix B. As part of the registration process, Customer will identify an administrative username and password for Customer’s La Chart account. La Chart reserves the right to refuse registration of or cancel passwords it deems inappropriate.
Subject to the terms hereof, La Chart will provide Customer with reasonable online technical support services in accordance with La Chart’s standard practice.
RESTRICTIONS AND RESPONSIBILITIES
Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code, or underlying structure, ideas, know-how, or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by La Chart or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party, or remove any proprietary notices or labels.
Further, Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws, or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.
Customer represents, covenants and warrants that Customer will use the Services only in compliance with La Chart’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations, including our Acceptable Use Policy located online at https://getlachart.com/acceptable-use-guidelines-and-policy. Customer hereby agrees to indemnify and hold harmless La Chart against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although La Chart has no obligation to monitor Customer’s use of the Services, La Chart may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access, or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers, and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords), and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
CONFIDENTIALITY; PROPRIETARY RIGHTS
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (“Proprietary Information”). Proprietary Information of La Chart includes non-public information regarding features, functionality, and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to La Chart to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without the use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
Customer shall own all rights, titles, and interests in and to the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Services. La Chart shall own and retain all rights, titles, and interests in and to (a) the Services and Software, all improvements, enhancements, or modifications thereto, (b) any software, applications, inventions, or other technology developed in connection with implementation services or support, and (c) all intellectual property rights related to any of the foregoing.
Notwithstanding anything to the contrary, La Chart shall have the right to collect and analyze data and other information relating to the provision, use, and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and La Chart will be free (during the term of this Agreement) to (i) use such information and data for other development, diagnostic and corrective purposes in connection with the Services and other La Chart offerings, and (ii) disclose such data solely in aggregate or other de-identified forms in connection with its business. No rights or licenses are granted except as expressly set forth herein.
PAYMENT OF FEES
Customer will pay La Chart the then applicable fees described in the Order Form for the Services and Implementation Services in accordance with the terms therein (the “Fees”). If Customer’s use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. La Chart reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then-current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email).
If Customer believes that La Chart has billed Customer incorrectly, Customer must contact La Chart no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to La Chart’s customer support department.
La Chart may choose to bill through an invoice, in which case, full payment for invoices issued in any given quarter must be received by La Chart fifteen (15) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on La Chart’s net income.
TERM AND TERMINATION
Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”) unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided. Upon any termination, La Chart will make all Customer Data available to Customer for electronic retrieval in La Chart’s standard electronic retrieval format for a period of fifteen (15) days through FTP, but thereafter La Chart may, but is not obligated to, delete stored Customer Data. The Customer Data will only be made available to Customer if Customer is not then in default under the terms of this Agreement. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
ACCOUNT CANCELLATION
All purchases are non-refundable. If you are unsatisfied with our services, please email us at [email protected]. Our Customer Success Managers are available to help you with any concerns.
You can cancel your subscription by contacting your account manager, 5 days prior to the renewal of your next term. Your cancellation will take effect at the end of the current paid term. We do not provide refunds on unused seats, subscription terms, or purchased credits.
FAILURE TO PAY
If we are not able to collect your subscription or usage fees within 10 days of the first date of the month, your subscription will be cancelled and your account suspended.
CHARGEBACKS
If we receive a chargeback on your purchases from us, we will automatically consider your account and payment fraudulent. Your account will be immediately suspended and you explicitly transfer ownership of all Contacts and Data within the account to us.
ACCOUNT SUSPENSION
You acknowledge and agree that in the event of an Account Suspension, solely at our discretion, for any reason or no reason at all, all phone numbers in your account are disconnected, forfeited, and subject to immediate release. We take no responsibility for maintaining phone numbers for suspended accounts and/or accounts in violation of this agreement.
Furthermore, You acknowledge and agree that in the event of an Account Suspension, solely at our discretion, for any reason or no reason at all, all your existing Contact data is forfeited and subject to immediate deletion. We take no responsibility for maintaining contact or communication data for suspended accounts and/or accounts in violation of this agreement.
WARRANTY AND DISCLAIMER
La Chart shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner that minimizes errors and interruptions and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by La Chart or by third-party providers, or because of other causes beyond La Chart’s reasonable control, but La Chart shall use reasonable efforts to provide advance notice in writing or by email of any scheduled service disruption.
HOWEVER, LA CHART DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND LA CHART DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
INDEMNITY
La Chart shall hold Customer harmless from liability to third parties resulting from infringement by the Service of any United States patent, copyright, or misappropriation of any trade secret, provided La Chart is promptly notified of any and all threats, claims, and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement. La Chart will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by La Chart, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by La Chart, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by La Chart to be infringing, La Chart may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.
LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, LA CHART AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND LA CHART’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO LA CHART FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT LA CHART HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
MISCELLANEOUS
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with La Chart’s prior written consent. La Chart may transfer and assign any of its rights and obligations under this Agreement without consent.
This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind La Chart in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next-day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
La Chart shall not be liable for any failure or delay in performing an obligation under this Agreement that is due to any cause beyond its reasonable control, including but not limited to: acts of God, accident, riots, war, terrorist act, epidemic, pandemic, quarantine, civil commotion, communication failure, web host outage, internet service provider outage, natural disaster, governmental acts or omissions, legal changes, national strikes, fire, explosion, or shortages of materials or energy.
This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions.
The parties agree to cooperate in good faith to issue at least one mutually agreed upon press release within 90 days of the Effective Date, and Customer agrees to reasonably cooperate with La Chart to serve as a reference account upon request.
