1 Caspita Terms of Service
This Caspita™ Terms Of Service Agreement (“TOS”) is entered into by and between Distinct Corporation, a California Corporation (“Distinct” or “we” or “our”) and the entity agreeing to these terms (“You” or “Your”), collectively referred to as the “Parties”. By accepting this TOS or by accessing or using the Service or Site even for trial purposes, You acknowledge that You have read, understood, and agree to be bound by this TOS. If You are entering into this TOS agreement on behalf of a company or other legal entity, You represent that You have the authority to bind such entity and its affiliates to this TOS, in which case the terms "You" or "Your" shall refer to such entity and its affiliates. If You do not have such authority, or if You do not agree with the TOS, You must not accept the TOS and not use the Service.
Distinct may change its Caspita TOS from time to time without prior notice. You can review the most current version of our TOS at any time here. The revised terms and conditions will become effective upon posting and if You use the Service after that date, we will treat Your use as acceptance of the revised terms and conditions. If any change to this TOS is not acceptable to You, your only remedy is to stop accessing and using the Service.
2 Description of Services
The "Service" includes (a) the Caspita website and any Distinct site that is used to deliver the service (“Site”), (b) the Caspita Service (“Services”), and (c) all software that comprises the ‘Caspita for Gmail’ extension, data, text, images, sounds, video, and content made available through the Site or Services ( "materials"). Any new features added to or augmenting the Services are also subject to this TOS.
3 General Conditions/ Access and Use of the Services
3.1 Subject to the terms and conditions of this TOS, You may access and use the Service only for Your internal business purposes as contemplated by the agreement (“Agreement”). You shall not (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party, other than as expressly permitted by this TOS; (b) use the Service in any unlawful manner or in any manner that interferes with or disrupts the integrity or performance of the Service and its components; (c) attempt to decompile or reverse engineer any software that is used to provide the Services; (d) remove any copyright or other proprietary notations from the materials;
3.2 Subject only to the limited right to access and use the Service expressly granted to You under this TOS, all rights, title and interest in and to the Service and its components will remain with and belong exclusively to Distinct or its suppliers. You shall not modify, adapt or hack the Service to falsely imply any association with Distinct, or otherwise attempt to gain unauthorized access to the Service or its related systems or networks.
3.3 You are responsible for all information, data, text, messages or other materials that You transmit via the Service. You understand that the Service is automatically made available through a Single login to Your Gmail account or to Your Google Apps Account. Distinct does not access your Google Apps password at any time and it remains your sole responsibility to maintain the integrity of your account.
3.5 The failure of Distinct to exercise or enforce any right or provision of this TOS shall not be a waiver of that right. You acknowledge that this TOS is a contract between You and Distinct, even though it is electronic and is not physically signed by You and Distinct, and it governs Your use of the Service and takes the place of any prior agreements between You and Distinct.
4 Intellectual Property Rights and Trademarks
4.1 Intellectual Property Rights: Except as expressly set forth herein, this TOS agreement does not grant either party any rights, implied or otherwise, to the other’s content or any of the other’s intellectual property. As between the parties, You own all Intellectual Property Rights in Your data and Distinct or its partners own all Intellectual Property Rights in the Site, Services and materials.
4.2 Trademarks: Distinct is a registered trademark, and Caspita and Distinct’s various logos used or displayed on the Services are trademarks of Distinct. You may only use these trademarks or logos for promotional purposes to identify yourself as a user of the Caspita Services, provided You do not attempt to claim ownership of the marks by incorporating any of them within Your names or offerings
4.3 Display of Brand Features: Distinct may display Your brand features which are authorized by You (such authorization is provided by You when you upload your brand features to a designated area on the Caspita site or which you authorize via email). Distinct may also display Distinct Brand Features on the Service Page to indicate that the Services are provided by Distinct. Neither party may display or use the other party’s Brand Features beyond what is allowed in this TOS without the other party’s prior written consent. Such consent may be granted electronically via email.
4.4 Brand Feature Limitation: A party may revoke the other party’s right to use its Brand Features pursuant to this Agreement with written notice to the other and a reasonable period to stop the use.
5 Term and Termination
5.1TOS Term. This Agreement will remain in effect for the Term as defined in this section 5 and will terminate at the end of Your trial period or Your subscription period. If you use our free services, we will make the free services available to you free of charge until earlier of (a) the date on which your free subscription is terminated or (b) the start date of your paid subscription. We may suspend, limit, or terminate the free services for any reason at any time without notice. We may terminate your subscription to the free services due to your inactivity.
5.1.1Services Term and Purchases During Services Term. The service term starts on the first day Your paid service goes into effect and is for one year. Distinct will provide the Services to You during the Services Term.
5.1.2Auto-Renewal. At the end of each Services Term, the Services will automatically renew for an additional Services Term of twelve (12) months by default. You will pay Distinct (or Reseller, if applicable) the then-current yearly Fees for each renewed Account unless You and Distinct (or Reseller, if applicable) mutually agree otherwise. You may alter the number of Accounts to be renewed by communicating the appropriate accounts to be renewed to Distinct or to Reseller, if applicable. If Distinct does not want the Services to renew, then it will provide You written notice to this effect at least fifteen (15) days prior to the end of the then current Services Term. This notice of non-renewal will be effective upon the conclusion of the then current Services Term.
5.1.3 Disabling Automatic Renewal. You may disable the automatic renewal option. If You disable this automatic renewal setting, Your Account(s) for the Caspita service will terminate upon the conclusion of the then current term.
5.1.4 Requesting Accounts. You may request Accounts by: (i) notifying your Distinct account manager (ii) or Distinct’s reseller by ordering Accounts via the Distinct web site.
5.1.5 Revising Rates. Distinct may revise its rates for the following Services Term by providing You written notice (which may be by email) at least thirty (30) days prior to the start of the following Services Term.
5.2 Termination. This Section 5.2 along with Sections 4.1, 4.2, 5.2.2, 6.2, 7, 8, 9 and 11 will survive any termination or expiration of these Terms.
5.2.1Termination for Breach. Either party may suspend performance or terminate this Agreement if: (i) the other party is in material breach of the Agreement and fails to cure that breach within thirty (30) days after receipt of written notice; (ii) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety (90) days; or (iii) the other party is in material breach of this Agreement more than two (2) times notwithstanding any cure of such breaches.
5.2.2Effects of Termination. If this Agreement terminates, then: (i) the rights granted by one party to the other will cease immediately and (ii) each party will promptly use commercially reasonable efforts to return or destroy all other Confidential Information of the other party upon request.
6.1 The Service is made available on both a free and a pay-as-You-go basis. The basic service plan comes free of charge, and Distinct charges for Paid Plans with added features.
Orders for the Services placed via the Caspita website will be processed directly by Distinct’s reseller FastSpring or Distinct’s then current reseller.
Initial Service Term: The fees for the Initial Services Term are due prior to the expiration of the Trial Period, or if the trial period does not apply, prior to the installation of the Services. Fees are paid in advance for one year terms and are not refundable.
Renewal Fees: Fees for continued service are due before the start of each year of service and will be automatically charged, unless You specifically request to terminate the service at least one week prior to the end of the then current term.
6.2 Taxes. You are responsible for all sales, use, value added, withholding or other taxes or duties, payable with respect to Your purchases hereunder, other than Distinct’s income taxes. If Distinct pays any such taxes on Your behalf, You agree to reimburse Distinct for such payment unless You provide Distinct with a valid exemption certificate authorized by the appropriate taxing authority.
7 DISCLAIMER OF WARRANTIES
THE SERVICE, INCLUDING THE SITE AND MATERIALS, AND ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY WARRANTIES OF ANY KIND, TO THE FULLEST EXTENT PERMITTED BY LAW AND DISTINCT EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT DISTINCT DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE AND NO INFORMATION OR ADVICE OBTAINED BY YOU FROM DISTINCT OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS TOS.
8 LIMITATION OF LIABILITY
8.1 UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL DISTINCT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA OR BUSINESS INTERRUPTION. IN ADDITION, DISTINCT SHALL NOT BE LIABLE FOR ANY DIRECT DAMAGES, COSTS, LOSSES OR LIABILITIES IN EXCESS OF THE CURRENT ANNUAL SUBSCRIPTION YOU PAID FOR THE SERVICE. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS TOS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.
8.2 Some states do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to you. IN THESE STATES, DISTINCT’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
This TOS is made with You and You may not transfer or assign it. Distinct may assign or transfer this TOS and Your user account and related information and data to any person or entity that acquires the Caspita services and site or that is merged with Distinct. You will be notified via email and/or a prominent notice on our website of any change in ownership or uses of Your personal information, as well as any choices You may have regarding Your personal information.
10 Export Compliance
You agree to comply with all applicable export and re-export control laws and regulations, including the Export Administration Regulations (“EAR“) maintained by the U.S. Department of Commerce and trade and economic sanctions maintained by the U.S. Treasury Department's Office of Foreign Assets Control. If You or one of Your users is in a country outside of the United States You agree to additionally comply with any local rules regarding online conduct and acceptable content, including laws regulating the export and re-export of data to and from the United States or such other country.
11 Governing Law and Jurisdiction
The laws of the State of California, U.S.A. govern the interpretation of this TOS and apply to claims for breach of this TOS, regardless of conflict of laws principles. The parties specifically exclude from application to these Terms the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act. All other claims, including claims regarding consumer protection laws, unfair competition laws, and in tort, will, only to the extent required by applicable law, be subject to the laws of Your state of residence in the United States, or, if You live outside the United States, the laws of the country in which You reside. If a particular clause, or part of, is found to be unenforceable, this will not affect any other terms of this TOS which will remain in full force. You and we irrevocably consent to the exclusive jurisdiction and venue of the courts in Santa Clara County, California, USA, for all disputes arising out of or relating to this TOS or to the Service.
12 Entire Agreement.
This Agreement, and all documents referenced herein, is the parties' entire agreement relating to its subject and supersedes any prior or contemporaneous agreements on that subject.
© 2017 Distinct Corporation