Green Elephant – TERMS OF SERVICE
Last updated: November 4, 2015
Please read this Terms of Service (the “Terms”) carefully. It governs your relationship with Green Elephant Inc. d/b/a PÜLS and any of its affiliates or d/b/a designations (collectively, “Green Elephant”) and sets forth the terms of service under which Green Elephant makes the internet website at www.Green Elephant.com and its sister websites (together, the “Site”), and the services available through the Site or otherwise provided by Green Elephant, including PÜLS, CLIENTpulse, and any related suite of services (the “Services”), to each person or entity (each a “User”) accessing or using the Site or the Services. (A person who responds to a survey may be referred to as a “Respondent,” but may also considered a User under these terms.)
These Terms, together with any and all other terms, conditions, rules, policies or procedures published on the Site which are specifically cited in this Terms of Service (“Additional Term”), each as updated from time to time by Green Elephant, constitute a binding, legal agreement between Green Elephant and User (collectively, the “Agreement”). To the extent you and Green Elephant execute a separate written statement of work, side letter, or other written instrument (each, a “SOW”) which incorporates by reference this Terms of Service , these Terms shall supplement such SOW and the SOW shall also be a part of this Agreement. In the event of a conflict between a SOW and these Terms, the conflicting provision in the SOW shall supersede the conflicting provision in these Terms.
By using the Site or the Services (including by responding to emails, surveys, polls or other communications received from other Users of the Site and the Services), each User hereby agrees to be and is bound by this Agreement. If you do not agree with any of the Terms, do not access or otherwise use the Site or the Services or any information contained on the Site.
Green Elephant may make changes to the content and Services offered on the Site at any time. Green Elephant can change the Terms at any time (including any Additional Terms), effective on a prospective basis. If Green Elephant changes the Terms, Green Elephant will post an updated set of Terms on this Site with a notice that the Terms have been changed, and Green Elephant may, but is not required to, send registered Users an email notice of the changes. If any modification is unacceptable to you, you must provide written notice to Green Elephant of your objection to such changes and terminate this Agreement within seven (7) days of the date of such change, and you shall cease using the Site and the Services. If you fail to provide such notice or continue using the Site and the Services following such changes, you will be conclusively deemed to have accepted the change.
EachEach User hereby warrants that if it is a corporation or other legal entity, such User is validly formed and existing under the laws of its jurisdiction and has duly authorized its agent(s) to enter into this Agreement and, if an individual, such User is of the age of majority in his or her place of residence.
1. Subscriptions and Payment
1.1. If User purchases a paid subscription to the Services (a “Subscription”), User shall pay all fees, including for any additional Services purchased by User or usage that exceeds the thresholds at the rates posted, as well as any taxes, applicable to such Subscription, as published on the Site at http://www.PÜLS.com/pricing/ from time to time. Green Elephant may change such fees at any time and in its sole discretion, provided that any such change shall become effective at the end of the then-current term of User’s Subscription. Late fees shall accrue interest at 1.5% per month or the maximum rate allowable by law, whichever is less, and User shall reimburse Green Elephant for all collection costs and expenses.
1.2. Subscription membership in the Services is on a continuous service basis. This means that, subject to the terms of this Agreement, Green Elephant will automatically renew User’s Subscription at the end of its term unless User’s Subscription is canceled using the tool in User’s account page on the Site at any time prior to the end of the then-current Subscription. User will be charged a renewal rate equal to the rate for the immediately preceding Subscription period, based upon the Subscription program (annual, quarterly, monthly, etc.) that User has chosen, unless Green Elephant has notified User of any new rate in advance. A cancellation of a Subscription requested by User through User’s account will become effective on the date that the then-current Subscription period expires.
1.3. If User has elected to pay the fees referred to in Section 1.1 by credit card, User hereby warrants that User is an authorized signatory for such credit card, the credit card information provided by User is correct, and User shall promptly notify Green Elephant of any changes to such credit card information. User acknowledges and agrees that if User’s credit card payment cannot be processed for any reason, Green Elephant may suspend or cancel User’s Subscription.
1.4. To the extent User has signed a SOW containing payment provisions, the terms of such SOW shall govern.
2. Registration If User has registered for an account to use the Services, User hereby warrants that the registration information provided by User is complete and accurate. User shall ensure that such information is kept up to date. Upon registering for an account, each User will select a password and an account designation if applicable. User acknowledges and agrees that User, and not Green Elephant, is responsible for User’s account and log-in credentials, and all activities occurring in connection with the use of that account, whether or not User expressly authorizes such activities.
3.1. User acknowledges and agrees that:
(a) User, and not Green Elephant, is responsible for all content that User uploads, posts, emails, distributes, communicates, transmits, or otherwise makes available using the Services or that is otherwise made available through the use of User’s account (if User has one) (collectively, the “Content”), whether or not authorized by User.
(b) By using the Site and the Services, User may be exposed to Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, libelous, vulgar, obscene, offensive, indecent, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable.
(c) User is solely responsible for complying with any legal requirements applicable to any Content it submits to the Services. Green Elephant makes no representations or warranties that the Services meets any legal requirements regarding any Content that is subject to any state or federal laws (e.g., HIPAA). User acknowledges that to the extent User needs a customized software solution to meet such requirements, Green Elephant will charge User its standard rates to develop a customized solution for User, and the foregoing must be evidenced in a SOW.
3.2. User further acknowledges and agrees that Green Elephant does not control the Content originating from Users, Respondents, or other users of the Site or the Services, and does not guarantee the accuracy, integrity, or quality of such Content. Notwithstanding the foregoing, Green Elephant may review all Content for any reason, and may block, modify, terminate access to, or remove any such Content that Green Elephant considers, in its sole discretion, does not comply with any of the requirements of this Agreement (but Green Elephant is not obligated to do so).
3.3. Green Elephant reserves the right to purge Content from its databases at any time and from time to time without notice. User acknowledges and agrees that User is solely responsible for backing up any Content uploaded to the Site by User or received by User through the use of the Services. Green Elephant shall not be liable for any purging, deletion, or failure to retain any such Content.
3.4. Green Elephant may disable User’s account and access to use the Site and/or the Services and Green Elephant may recover from User any losses, damages, costs or expenses incurred by Green Elephant resulting from or arising out of User’s non-compliance with any provision of this Agreement.
4. User Content In connection with User’s use of the Site and the Services, and without limiting any of User’s other obligations under this Agreement or applicable law, User:
(a)shall comply with: (i) this Agreement, and all other policies as published on the Site from time to time, (ii) all applicable U.S. Federal, State, local and international laws, and all other laws related to unsolicited commercial email, text, or other messages, defamation, privacy, obscenity, intellectual property or child protective email address registries, (iii) all other rules or regulations applicable to User, and (iv) all privacy policies or similar policies or procedures to which User may be bound that are related to User’s use of the Services;
(b)shall not use the Site or the Services to send surveys, polls, or other materials to minors unless User is permitted to do so under all applicable laws, or to harm minors in any way, and shall not send surveys, polls or other materials to minors that would subject Green Elephant to the Children’s Online Privacy and Protection Act;
(c) shall not impersonate any other person or entity, including Green Elephant, or a Green Elephant official, forum leader, guide or host, or falsely state or otherwise misrepresent User’s affiliation with any other person or entity;
(d) shall not interfere with or disrupt the Site or the Services or servers or networks connected to the Site or the Services, or disobey any requirements, procedures, policies, or regulations of networks connected to the Site or the Services;
(e) shall not attempt to damage, deny service to, hack, crack, reverse engineer, or otherwise interfere with the Site or the Services in any manner;
(f) shall not upload survey links to message boards or newsgroups that are not relevant to the subject matter of the survey, or that prohibit such uploading without Green Elephant’s prior written consent; and
(g) acknowledges and agrees that Green Elephant may cooperate with any governmental authority in connection with any investigation into User’s use of the Site or the Services, including use in contravention of applicable laws, and may disclose any Content, and any other information pertaining to the User or to User’s use of the Site or the Services, to such governmental authority in connection with any such investigation.
Without limiting any of the foregoing, to the extent User’s use of the Site or Services results in Green Elephant’s transmission of communications to prospective respondents (whether in the form of email or in other media), User represents and warrants (1) that User has the right to send such messages to the respondents and that User has an ongoing business relationship with respondents, (2) that such communications are being sent by Green Elephant on behalf of User, and (3) that any communications sent by Green Elephant to respondents will not violate any laws governing the transmission of unsolicited messages, including the Telephone Consumer Protection Act, and the CAN-SPAM Act of 2003, or any similar state or local law or rule. Green Elephant has a strict “no spam” policy and the Site or Services may not be used to advertise or promote any products or services.
5. Indemnity by UserUser shall indemnify, defend and hold harmless Green Elephant, its affiliates, and their respective directors, officers, employees, servants and agents from and against all claims, demands, damages, liabilities and costs (including attorneys’ fees and costs of ongoing defense) arising out of or in connection with:
(a) User’s use of the Site or the Services, including User’s use or misuse of or reliance on any Content, information or other materials (including survey or poll results or responses) obtained through the use of the Site or the Services,
(b) any other use of the Services by a third party using User’s account (whether or not authorized by User),
(c) User’s breach of this Agreement, including any of User’s representations and warranties under this Agreement,
(d) User’s contravention of any applicable law, including the CAN-SPAM Act of 2003, and
(e) User’s non-compliance with any rules or regulations in the treatment of User’s employees or contractors (including Respondents, if applicable), including labor laws (e.g., laws protecting workers against discrimination or harassment).
6. Term and Termination
6.1. Unless otherwise stated in a SOW, this Agreement shall automatically become effective upon User’s first use of the Site or the Services, and continue indefinitely until it is terminated.
6.2. Unless otherwise stated in a SOW, Green Elephant may cancel User’s Subscription (if User has one) and terminate this Agreement immediately by notice to User for any reason, in its sole discretion, including in the event that User fails to abide by any acceptable use policies or breaches any of User’s representations, warranties, or obligations under this Agreement (including any of User’s obligations under Section 3 (Content)) or contravenes any applicable law.
6.3. Upon termination of this Agreement for any reason, User shall immediately cease all use of the Site and the Services, and User acknowledges and agrees that Green Elephant may, in its sole discretion, take any measures Green Elephant reasonably deems necessary or desirable to prevent further use by User of the Site or the Services, including by blocking User’s IP address. User further acknowledges and agrees that upon termination of this Agreement, Green Elephant shall not be obliged to retain any of User’s Content (including survey or poll results or responses) or to provide the same to User, but may elect to do so in its sole discretion. Termination of this Agreement shall not entitle User to a refund of any Subscription fees previously paid by User, and User shall pay any outstanding amounts owed.
6.4. The following shall survive termination of this Agreement for any reason:
(a) all of User’s representations, warranties and indemnities given under this Agreement;
(b) all disclaimers of warranties, and limitations and exclusions of liability; and
(c) the last sentence of Section 3.3 (Content), and each of Sections 5 (Indemnity by User), 6 (Term and Termination), 8 (Limitations and Exclusions of Green Elephant’s Liability) and 9 (Intellectual Property Rights; Ownership of Data).
7. Provisions of the Site and the Services
7.1. Unless otherwise stated in a SOW, Green Elephant reserves the right at any time to modify, suspend or discontinue, temporarily or permanently, the Services or any part thereof, or User’s access to the Services, and to modify, suspend or delete the Site or any part thereof, with or without notice. User acknowledges and agrees that Green Elephant shall not be liable to User or to any third party for any modification, suspension or discontinuance of the Services or any modification, suspension or deletion of the Site.
7.2. User acknowledges and agrees that the Site and the Services are provided “as is,” “where is,” “as available,” and “with all faults,” and that Green Elephant has no responsibility or liability for the loss or deletion of, or failure to receive, process or store any Content (including survey or poll results or responses) maintained or transmitted using the Services.
7.3. USER ACKNOWLEDGES AND AGREES THAT THE INFORMATION, SOFTWARE, PRODUCTS AND SERVICES CONTAINED IN OR AVAILABLE THROUGH THE SITE OR THE SERVICES, INCLUDING INFORMATION, SOFTWARE, PRODUCTS AND SERVICES MADE AVAILABLE BY OTHER USERS OF THE SITE OR THE SERVICES, MAY INCLUDE INACCURACIES OR ERRORS.
7.4. USER FURTHER ACKNOWLEDGES AND AGREES THAT USER, AND NOT Green Elephant, IS RESPONSIBLE FOR EVALUATING THE ACCURACY, RELIABILITY, COMPLETENESS, AND USEFULNESS OF ANY INFORMATION OBTAINED THROUGH THE USE OF THE SITE OR THE SERVICES.
7.5. Green Elephant MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, QUALITY, OR LACK OF VIRUSES OR OTHER HARMFUL COMPONENTS OF THE SITE OR THE SERVICES, OR THE ACCURACY OF SUCH INFORMATION, SOFTWARE, PRODUCTS AND SERVICES.
7.6. USER ACKNOWLEDGES THAT USE OF THE SITE OR THE SERVICES MAY RESULT IN THE GENERATION OF DATA OR DISCLOSURE OF INFORMATION TO USER (OR ITS ORGANIZATION) THAT MAY TRIGGER LEGAL OBLIGATIONS FOR SUCH USER (OR ITS ORGANIZATION). USER ACCEPTS ALL RESPONSIBILITY FOR ALL LEGAL CONSEQUENCES ASSOCIATED WITH SUCH INFORMATION AND ACKNOWLEDGES THAT USER (OR ITS ORGANIZATION) IS SOLELY RESPONSIBLE FOR COMPLIANCE WITH ALL LAWS RELATING TO ITS USE OF THE INFORMATION GENERATED THROUGH USE OF THE SITE OR THE SERVICES.
7.7. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, Green Elephant, ITS AFFILIATES, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SERVANTS AND AGENTS HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, WITH REGARD TO SUCH INFORMATION, SOFTWARE, PRODUCTS OR SERVICES, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PURPOSE.
7.8. If you are a User located in a country embargoed by the United States, or are on the U.S Treasury Department’s list of Specially Designated Nationals, you are not permitted to purchase a Subscription or any other paid services from Green Elephant.
8. LIMITATIONS AND EXCLUSIONS OF Green Elephant’S LIABILITY
8.1. IN NO EVENT SHALL Green Elephant, ITS AFFILIATES, OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SERVANTS OR AGENTS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING DAMAGES FOR LOST PROFITS, LOSS OF USE OR DATA, OR COSTS OF COVER, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER LEGAL THEORY, EVEN IF Green Elephant HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING DAMAGES ARISING OUT OF:
(a) THE USE OR PERFORMANCE OF, THE DELAY IN PROVIDING, THE FAILURE TO PROVIDE, OR THE INABILITY TO USE, THE SITE OR THE SERVICES, OR
(b) ANY INFORMATION, SOFTWARE, PRODUCTS OR SERVICES CONTAINED IN OR AVAILABLE THROUGH THE SITE OR THE SERVICES, INCLUDING INFORMATION, SOFTWARE, PRODUCTS AND SERVICES MADE AVAILABLE BY OTHER USERS OF THE SITE OR THE SERVICES.
8.2. USER SPECIFICALLY AGREES THAT Green Elephant, ITS AFFILIATES, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SERVANTS AND AGENTS SHALL NOT BE LIABLE FOR:
(a) UNAUTHORIZED ACCESS TO OR ALTERATION OF ANY TRANSMISSIONS OR DATA, ANY MATERIAL OR DATA SENT OR RECEIVED OR NOT SENT OR NOT RECEIVED, OR ANY TRANSACTIONS ENTERED INTO THROUGH THE SITE OR THE SERVICES OR IN RELIANCE UPON ANY INFORMATION OBTAINED THROUGH THE USE OF THE SITE OR THE SERVICES,
(b) ANY THREATENING, DEFAMATORY, OBSCENE, OFFENSIVE OR ILLEGAL CONTENT OR CONDUCT OF ANY OTHER PARTY OR ANY INFRINGEMENT OF A THIRD PARTY’S RIGHTS, INCLUDING INTELLECTUAL PROPERTY RIGHTS, OR
(c) ANY CONTENT SENT USING, OR INCLUDED IN, THE SITE OR THE SERVICES BY ANY THIRD PARTY.
8.3. IF USER IS DISSATISFIED WITH ANY PORTION OF THE SITE OR THE SERVICES, USER’S SOLE AND EXCLUSIVE REMEDY IS TO TERMINATE THIS AGREEMENT AND DISCONTINUE USING THE SITE AND THE SERVICES.
8.4. IN THE EVENT THAT, NOTWITHSTANDING THE FOREGOING EXCLUSIONS OF LIABILITY, Green Elephant, ANY OF ITS AFFILIATES, OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SERVANTS OR AGENTS IS LIABLE TO USER FOR ANY AMOUNTS UNDER THIS AGREEMENT UNDER ANY THEORY OF RECOVERY, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, Green Elephant’S (OR SUCH AFFILIATES’, DIRECTOR’S, OFFICER’S, EMPLOYEE’S, SERVANT’S OR AGENT’S, AS APPLICABLE) TOTAL LIABILITY IN RESPECT OF SUCH AMOUNTS SHALL NOT EXCEED THE GREATER OF:
(a) THE AMOUNT OF ONE HUNDRED DOLLARS ($100.00), OR
(b) THE AMOUNTS ACTUALLY RECEIVED BY Green Elephant FROM USER UNDER THIS AGREEMENT.
8.5. USER ACKNOWLEDGES AND AGREES THAT WITHOUT THE FOREGOING EXCLUSIONS AND LIMITATIONS OF LIABILITY, Green Elephant WOULD NOT BE ABLE TO OFFER THE SITE OR THE SERVICES, AND THAT SUCH EXCLUSIONS AND LIMITATIONS OF LIABILITY SHALL APPLY, EVEN IF THEY WOULD CAUSE USER’S REMEDIES UNDER THIS AGREEMENT TO FAIL OF THEIR ESSENTIAL PURPOSE. Notwithstanding the foregoing, some jurisdictions do not allow the exclusion or limitation of liability for incidental or consequential damages in certain circumstances, and so the foregoing limitation and exclusions may not apply to User to that extent.
9. Intellectual Property Rights; Ownership of Data The Site and the Services and all information and screens appearing on the Site, including without limitation documents, services, site design, text, graphics, logos, images and icons, as well as the arrangement thereof, are the sole property of Green Elephant, Copyright © 2012-2015, or its third-party licensors. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner or licensor. Green Elephant reserves all rights in the Site and the Services that are not expressly granted. Green Elephant and PÜLS are registered trademarks of Green Elephant Inc. in the United States. Other trademarks, names, and logos on the Site are the property of their respective owners. Nothing in this Agreement shall be deemed to assign, transfer or license to User any rights to any such intellectual property. User further acknowledges and agrees that Content made available to User through the Services may be subject to the intellectual property rights of third parties.
11.1. Green Elephant may provide references, frames or hyperlinks to internet websites maintained by third parties. Green Elephant does not warrant that it has reviewed such third-party websites and makes no claims, representations or warranties regarding such third-party websites or the contents of the same. Green Elephant is not responsible for, nor does it endorse or recommend, any products or services provided by such third parties through such third-party websites or by any other means.
11.2. User acknowledges and agrees that User, and not Green Elephant, is responsible for determining which laws may apply to User’s use of the Site and the Services and assessing User’s obligations under such laws.
11.3. All notices and other communications required or permitted to be given by Green Elephant to User under this Agreement will be deemed to be properly given on the (earliest) date when posted on the Site, sent by email to the email address for User last recorded by Green Elephant, or sent by postal mail to the postal address for User last recorded by Green Elephant.
User may give notices to Green Elephant under this Agreement by email to support@GreenElephant.com.
11.4. This Agreement comprises the entire agreement between Green Elephant and the User relating to the Site and the Services.
11.5. User may not assign this Agreement without Green Elephant’s prior written consent, which may be withheld in Green Elephant’s sole discretion. Green Elephant may assign this Agreement at any time without notice to User.
11.6. In any dispute arising out of this Agreement, the substantially prevailing party shall be entitled to payment of its reasonable attorneys’ fees and costs.
11.7. The failure by Green Elephant to enforce any right or provision of this Agreement shall not constitute a waiver of that provision or of any other provision of this Agreement.
11.8. If any provision of this Agreement shall be determined to be invalid or unenforceable by a court, such provision shall be deemed severable and the remainder of this Agreement shall remain in full force and effect.
12. Governing Law; Venue; Arbitration: THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF WASHINGTON, WITHOUT REFERENCE TO ITS CONFLICTS OF LAW RULES, AND USERS HEREBY SUBMIT TO THE EXCLUSIVE JURISDICTION AND VENUE OF THE COURTS OF THAT STATE, AND WAIVE ANY OBJECTION TO JURISDICTION OR VENUE IN THE STATE OF WASHINGTON, INCLUDING ANY OBJECTION BASED ON FORUM NON-CONVENIENS, IMPROPER VENUE, OR THE LIKE.
USERS FURTHER AGREE TO SUBMIT ANY DISPUTE THEY MAY HAVE WITH Green Elephant, INCLUDING DISPUTES RELATED TO THE SITE, THE SERVICES, CONTENT, OR DATA TO BINDING ARBITRATION IN ACCORDANCE WITH THE RULES OF THE AMERICAN ARBITRATION ASSOCIATION, WITH ONE SINGLE ARBITRATOR PRESIDING. IN CONNECTION THEREWITH, USERS AGREE TO WAIVE THEIR RIGHT TO A JURY TRIAL, WHETHER PROVIDED UNDER STATE OR FEDERAL LAWS, RULES, OR REGULATIONS. NOTWITHSTANDING THE FOREGOING, THIS ARBITRATION CLAUSE SHALL NOT PRECLUDE EITHER PARTY FROM (1) SEEKING PRELIMINARY INJUNCTIVE RELIEF IN A COURT OF COMPETENT JURISDICTION OR (2) ENFORCING ITS INTELLECTUAL PROPERTY RIGHTS UNDER THE LAW (COPYRIGHT, TRADEMARK RIGHTS, PATENT RIGHTS) OR THIS AGREEMENT (A BREACH OF THE SCOPE OF LICENSE).