Our Service Agreement
Last updated: October 30, 2014
We provide services subject to the terms of this Services Agreement (this “Agreement”). By registering to become a customer of our Services (as defined below), you agree to be bound by this Agreement, whether you or your principal are acting on your behalf or on behalf of a third party. If you are acting on behalf of a third party, you represent and warrant that you have authority to accept this Agreement on such third party’s behalf and that such third party has agreed to be subject to and to abide by this Agreement. You further agree that any of your agents, representatives, employees, or any person or entity acting on your behalf with respect to the use or receipt of the Services will be subject to and will abide by this Agreement.
The terms “Customer,” “you,” “your,” and “yours” refer to you, the customer using the Services. The terms “In the Tidepool”, “ITP”, “we”, “us”, and “our” refer to In the Tidepool, a subsidiary of Amenity Inc., a California corporation, collectively. We may periodically make changes to this Services Agreement and you may view the most current version at http://www.inthetidepool.com/terms/. It is your responsibility to review the most recent version of our Agreement frequently and remain informed about any changes to it.
Subject to the terms and conditions of this Agreement, you hereby appoint In the Tidepool, and In the Tidepool hereby agrees to provide marketing services to you, in connection with the development and execution of advertising and promotional programs for you or your products or services (the “Customer Products”).
Subject to the terms and conditions of this Agreement, we will provide marketing and promotional services, using methods and forms of media as chosen by us in our sole discretion, in order to promote and advertise the Customer Products (the “Services”).
We will use commercially reasonable efforts to select and to implement advertising and promotional methods that we believe will be effective. You acknowledge, however, that we make no guarantees regarding the success of the Services, or of any particular method or campaign. We will not be liable to you for the failure of any third party, including but not limited to media or suppliers, to fulfill their commitments to us. You acknowledge that some advertising and promotional methods may require the approval of media outlets or other third parties. We make no guarantee that any particular advertising or promotional method will be used for Customer.
You hereby grant us the authority to track the behavior of, and otherwise to collect information regarding, users of the Customer Products, including, without limitation, by placing (or permitting others to place) pixel tags and other objects of us and of third parties in advertisements and other content that we may cause or permit to be displayed on the Customer Products, and by placing (or permitting others to place) cookies on the browsers of users of the Customer Products. You acknowledge and agree that we may and others may use the information described in the preceding sentence to provide the Services to you, and may also use and disclose such information for other purposes (e.g., improving our products and services) in accordance with our privacy policies and, in the case of third parties, their own privacy policies, if any.
FEES AND PAYMENT
General Information Regarding Fees.
The fees charged by In the Tidepool for the Services are provided at the rates set forth at http://inthetidepool.com/. These fees might include, for example, one or more of a “Setup Fee”, a “Monthly Fee”, and an “Ad Budget.”. The fees applicable to a given month during your subscription to the Services is referred to herein as the “Total Monthly Spend.” If you sign up to purchase Services through one of our resellers, the reseller will bill you upon sign-up, and on a monthly basis thereafter, for the full amount of the Total Monthly Spend. If you purchase Services directly from In the Tidepool, the payment terms in Section 3.2 will apply.
Payment by Credit Card or PayPal
On the Service Order Form, you must supply credit card or PayPal account billing information. Upon sign-up and on a monthly basis thereafter during the term of this Agreement, you hereby authorize us (or our agent) to automatically bill the identified credit card or PayPal account each month for the full amount of the Total Monthly Spend. All fees and charges under this Agreement are non-refundable.
All credit card and PayPal account information that you provide to us must be accurate, complete, and current, and you must be authorized to use the identified credit card or PayPal account. If the identified credit card or PayPal account is refused or expired when we bill the credit card or PayPal account, we may, in our sole discretion, immediately suspend the Services or terminate this Agreement. You must notify us about any billing problems or discrepancies within 90 days after they first appear on your credit card or PayPal account statement. If you do not bring them to our attention within 90 days, you waive your right to dispute such problems or discrepancies. You are solely responsible for any and all fees charged to the identified credit card or PayPal account by the issuer, bank, or financial institution including, but not limited to, membership, overdraft, insufficient funds, and over the credit limit fees. You will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by us to collect any amount that is not paid when due.
Other than federal and state net income taxes imposed on In the Tidepool by the United States, Customer will bear all taxes, duties, and other governmental charges (collectively, “taxes”) resulting from this Agreement or otherwise relating to the Services performed for Customer. Customer will pay any additional taxes as are necessary to ensure that the net amounts received by In the Tidepool after all such taxes are paid are equal to the amounts which In the Tidepool would have been entitled to in accordance with this Agreement as if the taxes did not exist.
General Payment Terms
Without limiting any other rights or remedies available to us, any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid. You will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by us to collect any amount that is not paid when due. Other than federal and state net income taxes imposed on us by the United States, you will bear all taxes, duties, and other governmental charges relating to your use and receipt of the Services.
TERM AND TERMINATION
This Agreement will commence upon the date you register for the Services and, subject to the terms of this Agreement, will continue thereafter until terminated by you or by us.
Termination by Customer
You many terminate this Agreement at any time using the Web interface. Pre-paid amounts, including but not limited to prepayments of the “Total Monthly Spend,” will not be returned..
Termination by In the Tidepool
We may terminate your right to receive the Services, or terminate this Agreement, at any time for any reason by providing you with notice in any reasonable manner, including via email. If we terminate this Agreement for our convenience, we will refund to you any unused, prepaid fees that have been charged to your credit card.
Post-Termination Obligations; Termination as Exclusive Remedy
If this Agreement is terminated for any reason, (a) any and all liabilities accrued prior to the effective date of the termination will survive; and (b) we will have no obligation to provide the Services. Termination of this Agreement is your sole right and remedy with respect to any dispute with us regarding the Services or this Agreement.
OWNERSHIP AND PROPRIETARY RIGHTS
You may have the opportunity to provide us with logos, graphics, designs, specifications, or other information or materials (collectively, “Customer Materials”). You may be required to provide certain Customer Materials in a format that we or a third party may specify from time to time. You hereby grant to us a nonexclusive license to use, reproduce, modify, and distribute the Customer Materials solely to provide the Services. The license may be exercised on behalf of us by third parties acting on our behalf (e.g., distribution partners, media outlets, and independent contractors).
In the Tidepool Materials
Subject to Customer’s pre-existing rights in and to Customer Materials provided to In the Tidepool, In the Tidepool shall own and retain all right, title, and interest (including, without limitation, all intellectual property rights) in and to all information, data, software, tools, and other content, materials, processes, and inventions of In the Tidepool, whether or not conceived, created, or developed by In the Tidepool in the performance of, or otherwise in connection with, the Services (“In the Tidepool Materials”), whether or not any such In the Tidepool Materials are delivered to Customer.
Reservation of Rights
You will not have any rights in or to the Services or In the Tidepool Materials except as expressly granted in this Agreement. In the Tidepool reserves to itself all rights to the Services and In the Tidepool Materials not expressly granted to you in accordance with this Agreement.
REPRESENTATIONS AND WARRANTIES
Mutual Representations and Warranties.
Each party represents and warrants to the other that: (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; (b) no authorization or approval from any third party is required in connection with such party’s execution, delivery, or performance of this Agreement; and (c) the execution, delivery, and performance of this Agreement does not violate the laws of any jurisdiction or the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.
Representations and Warranties of Customer.
Customer represents and warrants that: (a) the Customer Materials do not, and will not contain any unlawful, threatening, libelous, defamatory, obscene, scandalous, inflammatory, pornographic, or profane material, or any material that could constitute or encourage conduct that would be considered a criminal offense, give rise to civil liability, otherwise violate any law, or infringe or violate the privacy, publicity, intellectual property or proprietary, or other rights of any third party; and (b) Customer has and will have all necessary right and authority to promote and advertise, and to allow In the Tidepool to promote and advertise, the Customer Products; and (c) no characteristic of the Customer Products or Customer Materials will cause In the Tidepool’s use and promotion thereof in accordance with this Agreement to violate any applicable law or regulation or give rise to any civil liability; and (d) Customer and the Customer Products will comply with all laws and regulations in connection with the Services and the Customer Products, including without limitation all laws and regulations governing the use, collection, and disclosure of information from and about users of the Customer Products.
DISCLAIMER OF WARRANTIES.
YOUR USE OF THE SERVICES AND SERVICE CONTENT IS AT YOUR SOLE RISK. THE SERVICE AND SERVICE CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. IN THE TIDEPOOL EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. WE DO NOT GUARANTEE THE ACCURACY, COMPLETENESS, OR USEFULNESS OF THE SERVICES OR THE SERVICE CONTENT, AND YOU RELY ON THE SERVICES AND THE SERVICE CONTENT AT YOUR OWN RISK. ANY MATERIAL OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM In the Tidepool OR OTHERWISE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. SOME STATES MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE.
General Indemnification by In the Tidepool
In the Tidepool will indemnify, defend, and hold harmless you and your directors, officers, employees, and agents (the “Customer Indemnitees”) from and against any and all actual or threatened third party suits, actions, legal or administrative proceedings and other claims, and associated demands, damages, liabilities, losses, costs, fees, penalties, fines, and expenses (including without limitation attorneys’ fees and expenses, and costs of investigation, litigation, settlement, and judgment) (collectively, “Claims”), incurred by you arising out of or based upon (i) the breach of any of In the Tidepool’s representations or warranties contained in this Agreement; and (ii) any allegation that the Service Content is false, deceptive, misleading, unsubstantiated, infringes or misappropriates any third party’s intellectual property rights or other rights, or violates applicable law; provided, however, that In the Tidepool will have no obligation to indemnify, defend, or hold harmless any Customer Indemnitee for any Claims that result from, or otherwise would not have occurred but for, any Customer Materials or any act or omission of any Customer Indemnitee.
General Indemnification by Customer
Customer will defend and hold harmless In the Tidepool, its directors, officers, employees, and agents from and against any and all Claims arising out of or based upon (i) the breach of any of your representations, warranties, or covenants contained in this Agreement; and (ii) any allegation that any Company Content is false, deceptive, misleading, unsubstantiated, violates applicable law, or infringes or misappropriates any third party’s intellectual property rights or other rights.
Exclusions from Obligations
In the Tidepool will have no obligation under this Section 8 for any infringement or misappropriation to the extent that it arises out of or is based upon (a) any Customer Materials or any act or omission of any Customer Indemnitee; (b) any use of Services or Service Content in combination with other products or services; (c) the Services or Service Content being provided to comply with designs, requirements, or specifications required by or provided by Customer; (d) use or modification of the Services or Service Content by Customer for purposes not intended or outside the scope of any right or license granted to Customer; or (e) any modification of the Services or Service Content not made or authorized in writing by In the Tidepool.
LIMITATIONS OF LIABILITY
Disclaimer of Indirect Damages.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IN THE TIDEPOOL WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO CUSTOMER FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF IN THE TIDEPOOL IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
Cap on Liability
UNDER NO CIRCUMSTANCES WILL IN THE TIDEPOOL’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO IN THE TIDEPOOL DURING THE 6 MONTHS IMMEDIATELY PRECEDING THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION).
Independent Allocations of Risk
EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY IN THE TIDEPOOL TO CUSTOMER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 9 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
“Confidential Information” means any trade secrets or other information of a party, whether of a technical, business, or other nature (including, without limitation, information relating to a party’s technology, software, products, services, designs, methodologies, business plans, finances, marketing plans, customers, prospects, or other affairs), that is disclosed to a party during the term of this Agreement and that such party knows or has reason to know is confidential, proprietary, or trade secret information of the disclosing party. Confidential Information does not include any information that: (a) was known to the receiving party prior to receiving the same from the disclosing party in connection with this Agreement; (b) is independently developed by the receiving party without use of or reference to the Confidential Information of the disclosing party; (c) is acquired by the receiving party from another source without restriction as to use or disclosure; or (d) is or becomes part of the public domain through no fault or action of the receiving party.
Restricted Use and Nondisclosure
During and after the term of this Agreement, each party will: (a) use the other party’s Confidential Information solely for the purpose for which it is provided; (b) not disclose the other party’s Confidential Information to a third party unless the third party must access the Confidential Information to perform in accordance with this Agreement and the third party has executed a written agreement that contains terms that are substantially similar to the terms contained in this Section 10; and (c) maintain the secrecy of, and protect from unauthorized use and disclosure, the other party’s Confidential Information to the same extent (but using no less than a reasonable degree of care) that it protects its own Confidential Information of a similar nature.
If either party is required by law to disclose the Confidential Information or the terms of this Agreement, the disclosing party must give prompt written notice of such requirement before such disclosure and assist the non-disclosing party in obtaining an order protecting the Confidential Information from public disclosure.
Return of Materials
Upon the termination or expiration of this Agreement, or upon earlier request, each party will deliver to the other all Confidential Information that they may have in its possession or control. Notwithstanding the foregoing, neither party will be required to return materials that it must retain in order to receive the benefits of this Agreement or properly perform in accordance with this Agreement.
In the Tidepool will have the right to use and exploit Residuals for any purpose after the return of your Confidential Information. “Residuals” means ideas, information, and understandings retained in the unaided memory of In the Tidepool’s employees because of their review, evaluation, and use of your Confidential Information after its return to you. You agree that nothing in this Agreement prohibits us from providing similar services to a third party, except to the extent that, in doing so, we breach our obligations of confidentiality under this Agreement.
This Agreement will not be interpreted or construed as (a) creating or evidencing any association, joint venture, partnership, or franchise between the parties; (b) imposing any partnership or franchise obligation or liability on either party; or (c) prohibiting or restricting either party from otherwise dealing with any third party.
No Third-Party Beneficiaries
The provisions of this Agreement are for the benefit of the parties and not for any other person or entity.
You may not assign any of your rights or obligations under this Agreement without the prior written consent of In the Tidepool (not to be unreasonably withheld or delayed). Any such attempted assignment will be void and of no force or effect. We may assign our rights and obligations under this Agreement without restriction. This Agreement will be binding upon and inure to the benefit of the parties and their permitted successors and assigns.
Neither party will be liable for, or be considered in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond that party’s reasonable control (including, without limitation, any act or failure to act by the other party).
This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of California, U.S.A., without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Each party hereby consents irrevocably to the exclusive jurisdiction and venue of the federal, state, and local courts in Santa Clara County, California, in connection with any action arising out of or in connection with this Agreement.
In the Tidepool may update the terms of its Services Agreement from time to time. In the Tidepool may suspend your continued access to and use of the Services if you do not agree to the then-current Services Agreement.
Either party’s waiver of any breach of any provision of this Agreement does not waive any other breach. Either party’s failure to insist on strict performance of any covenant or obligation in this Agreement will not be a waiver of such party’s right to demand strict compliance in the future.
If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect.
This Agreement, including all terms and policies referenced in this Agreement, constitute the final and complete expression of the agreement between you and us regarding their subject matter. This Agreement supersedes, and its terms govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement. No employee, agent, or other representative of In the Tidepool has any authority to bind In the Tidepool with respect to any representation, warranty, or other expression unless it is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the provisions of this Agreement.
If you have any questions, comments, or concerns about this service agreement, please contact us via our contact form.