ACCEPTANCE OF TERMS
The terms and conditions outlined in these Terms govern all matters related to your installation and use of the Platform and supersede all other agreements, representations, warranties and understandings with respect to the Platform. By entering into these Terms electronically, you agree that these Terms have the same force and effect as an agreement made in writing and that Propeller may provide you with any notices and terms about the Platform electronically by posting such notice on the Site.
UPDATE AND MODIFICATION OF THE TERMS
You agree that Propeller is not obligated to create or provide any support, corrections, updates, upgrades, bug fixes and/or enhancements of the Platform (each an “Update”). However, in the event Propeller decides to offer an Update, you agree that Propeller may amend these Terms in connection with such Update without specific notice to you and that your installation and use of the Update is conditioned upon your acceptance of any revised Terms. The current version of these Terms will be posted at www.propellercrm.com (the “Site”) and you are responsible for reviewing the version of the Terms available at the Site before installing an Update. By installing an Update, you are representing that you have reviewed the then-current version of the Terms at the Site and agree to be bound by such version. You may not install any Update unless you agree to the then-current version of the Terms.
OWNERSHIP RIGHTS AND LICENSE
As between you and Propeller, the Platform, and all content (except for Stored Information and Third Party Content as described below) contained within the Platform, is and shall remain the sole property of Propeller and is subject to protection under U.S. and foreign copyright laws.
All third-party information (such as email accounts, calendars, cloud storage servers, audio files, images, or other third party materials) that you may have access to by using the Platform (“Third-Party Content”) may be protected by intellectual property rights that are owned by the individual or entity from which such Third Party Content originated. Propeller reserves the right (but has no obligation) to filter or refuse to transmit any Third-Party Content via the Platform. You may be exposed to Third-Party Content that is offensive, indecent or objectionable or which violates the proprietary, intellectual property, or privacy rights of a third party.
The Platform allows you to integrate the Tools with various third party accounts (each a “Third Party Service), (e.g. Gmail), in order to access and use certain information and data that you store in such third party accounts, such as emails and calendars (“Stored Information”). As between you and Propeller, you retain all ownership of and liability and responsibility for your Stored Information and you are solely responsible for the content of all communications made by or to you through your use of the Platform. You agree that your use of the Platform to communicate with any third parties is at your own risk.
PERMISSION TO ACCESS THIRD PARTY CONTENT AND STORED INFORMATION
USER CONDUCT AND COMPLIANCE WITH LAWS
You agree that Propeller does not provide and is not responsible for any aspect of any Third Party Service. You acknowledge and agree that Propeller has no control over the availability, performance, or any other practices of any Third Party Service.
As between you and Propeller, you are solely responsible for your use of any Third Party Service and for the content of all communications made by or to you through your use of any Third Party Service, and for all activity with respect to your use of the Platform, including any unauthorized use of your Third Party Service accounts by any third party.
You shall use the Platform only in compliance with applicable local, state, federal, and international law and all regulations, policies and procedures of the applicable Third Party Service. You agree that you will not use the Platform or any Third Party Service to (a) engage in any communications that are unlawful, harassing, defamatory, offensive, libelous, abusive, threatening, harmful, vulgar, obscene, or otherwise objectionable, (b) encourage or engage in any criminal conduct, conduct that could give rise to civil liability, or otherwise violate any applicable local, state, national or international law or regulation, (c) gain or attempt to gain unauthorized access to other computer systems, or (d) interfere with any other person’s use and enjoyment of the Platform or any Third Party Service.
PAYMENT AND CHARGES
To the extent that any aspect of a Third Party Service imposes any fees, tariffs, charges, or surcharges (“Fees”), for use of its facilities, you agree that, as between you and Propeller, you are solely responsible for paying all such Fees. YOU AGREE TO INDEMNIFY, RELEASE, DEFEND, AND HOLD HARMLESS PROPELLER AGAINST ANY CLAIMS RELATED TO OR ARISING OUT OF ANY FAILURE OR DELAY BY YOU IN PAYING ANY FEES TO ANY THIRD PARTY SERVICE YOU DESIGNATE.
Although Propeller makes a copy of your Stored Information and Third Party Content, including emails, contact information, customer notes, telephone numbers, and other customer related information for the purpose of providing the Platform, you acknowledge and agree that the Platform is not intended to be relied upon as an archive. Propeller shall have no liability to you or any other person for deletion of or failure to store any Stored Information and you are solely responsible for preventing any loss or damage to your User Data and for maintaining independent archival and backup copies of your User Data, including within the applicable Third Party Service. PROPELLER ASSUMES NO RESPONSIBILITY FOR THE DELETION OF OR FAILURE TO STORE OR DELIVER ANY USER DATA. YOU RELEASE, DEFEND, INDEMNIFY, AND HOLD HARMLESS PROPELLER FROM ANY CLAIM RELATED TO DELETION OR FAILURE TO KEEP A COPY ANY STORED INFORMATION, INCLUDING IN CONNECTION WITH ANY RECORD KEEPING REQUIREMENTS IMPOSED BY ANY LAWS, RULES, REGULATIONS, OR SELF-REGULATORY INDUSTRY STANDARDS.
TERMINATIONThese Terms are effective until terminated by you or Propeller. Your rights under these Terms will terminate automatically without notice from Propeller if you fail to comply with any term(s) of this license. Upon termination of these Terms you shall cease all use of the Platform, and destroy all copies, full or partial, of the Platform.
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE PLATFORM IS AT YOUR SOLE RISK AND THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PLATFORM AND ANY CONTENT OR INFORMATION PROVIDED BY THE PLATFORM ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND PROPELLER HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE PLATFORM AND ANY CONTENT OR INFORMATION PROVIDED BY THE PLATFORM, EITHER EXPRESS, IMPLIED OR STATUTORY THIS INCLUDES, BUT IS NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. PROPELLER DOES NOT WARRANT THAT THE PLATFORM OR ANY CONTENT PROVIDED BY THE PLATFORM WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE PLATFORM WILL BE CORRECTED, OR THAT ANY THIRD PARTY SERVICE WILL BE AVAILABLE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY PROPELLER OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY.
LIMITATION OF LIABILITY
TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL PROPELLER BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, DIRECT, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, PROPERTY DAMAGE OR INJURY TO ANY PERSON, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE PLATFORM OR ANY THIRD PARTY SERVICE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF PROPELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL PROPELLER’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE FEES ACTUALLY PAID BY YOU IN THE THREE (3) MONTHS PRECEDING THE EVENT GIVING RISE TO YOUR CLAIM OR THE AMOUNT OF ONE HUNDRED DOLLARS ($100.00), WHICHEVER IS GREATER. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
ARBITRATION; APPLICABLE LAW
THIS AGREEMENT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE. PLEASE READ THIS CAREFULLY. IT AFFECTS YOUR RIGHTS.
Except for a claim by Propeller of infringement or misappropriation of Propeller’s patent, copyright, trademark, or trade secret, any and all disputes between you and Propeller arising under or related in any way to these Terms must be resolved through binding arbitration as described in this section. This agreement to arbitrate is intended to be interpreted broadly. It includes, but is not limited to, all claims and disputes relating to your use of the Platform.
YOU AGREE THAT BY ENTERING INTO THIS AGREEMENT, YOU AND PROPELLER ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. YOU AND PROPELLER AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. ANY ARBITRATION WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED.
The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes of the American Arbitration Association (“AAA”), as modified by this section. For any claim where the total amount of the award sought is $10,000 or less, the AAA, you and Propeller must abide by the following rules: (a) the arbitration shall be conducted solely based on written submissions; and (b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties. If the claim exceeds $10,000, the right to a hearing will be determined by the AAA rules, and the hearing (if any) must take place in San Francisco, CA The arbitrator’s ruling is binding and may be entered as a judgment in any court of competent jurisdiction. In the event this agreement to arbitrate is held unenforceable by a court, then the disputes that would otherwise have been arbitrated shall be exclusively brought in the state or federal courts located in t San Francisco, California or Northern District of California, as applicable. Claims of infringement or misappropriation of Propeller’s patent, copyright, trademark, or trade secret shall be exclusively brought in the state and federal courts located in San Francisco, California or Northern District of California, as applicable.
The laws of the State of California, excluding its conflicts of law rules that would result in the laws of a State other than California, govern this license and your use of the Platform.
Propeller and you acknowledge that this Agreement is concluded between Propeller and you only, and not with any Third Party Service. Propeller, not any Third Party Service, is solely responsible for Platform and the content thereof.
You represent and warrant that (a) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.
THIRD PARTY BENEFICIARY
You acknowledge and agree that any Third Party Service, and its subsidiaries, are third party beneficiaries of this Agreement, and that, upon your acceptance of the terms and conditions of this Agreement, such Third Party Services, as applicable will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary thereof.
You agree to indemnify, defend, release, and hold harmless Propeller, its partners, licensors, affiliates, contractors, officers, directors, employees and agents from all damages, losses and expenses arising directly or indirectly from (a) any negligent acts, omissions or willful misconduct by you, (b) your use of the Platform or any Third Party Service, (c) any breach of these Terms by you, and/or (d) your violation of any law or of any rights of any third party.
You hereby agree that if the terms of this Agreement are not specifically enforced, Propeller will be irreparably damaged, and therefore you agree that Propeller shall be entitled, without bond, other security, proof of damages, to appropriate equitable remedies with respect any of this Agreement, in addition to any other available remedies.