Terms of Service
Posted/Revised: May 1, 2017
TERMS OF SERVICE
PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY CLICKING “ACCEPTED AND AGREED TO,” CUSTOMER AGREES TO THESE TERMS AND CONDITIONS.
These Terms of Service constitute an agreement (this “Agreement”) by and between Western Service Systems Inc., a corporation whose principal place of business is 295 Gentry Way Suite 3, Reno NV 89502 (“Vendor”) and the individual, corporation, LLC, partnership, sole proprietorship, or other business entity executing this Agreement (“Customer”). This Agreement is effective as of the date Customer clicks “Accepted and Agreed To” (the “Effective Date”). Customer’s use of and Vendor’s provision of Vendor’s System (as defined below in Section 1.6) are governed by this Agreement.
EACH PARTY ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS, AND THAT THE PERSON SIGNING ON ITS BEHALF HAS BEEN AUTHORIZED TO DO SO. THE PERSON EXECUTING THIS AGREEMENT ON CUSTOMER’S BEHALF REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND CUSTOMER TO THESE TERMS AND CONDITIONS.
1. DEFINITIONS. The following capitalized terms will have the following meanings whenever used in this Agreement.
1.1. “AUP” means Vendor’s acceptable use policy currently posted at www.snapdsk.com/use_agreement .
1.2. “Customer Data” means data in electronic form input or collected through the System by or from
Customer, including without limitation by Customer’s Users.
1.3. “Documentation” means Vendor\'s materials and/or manuals and instructions related to use of the System
and/or SaaS products, as the same may be amended, replaced and/or supplemented from time to time.
1.4. “Order” means an order for a SaaS product and/or access to the System (or, in the case of a free or trial
period, a request to access the System), for the stated time period identified when the purchase was
made or access was requested, executed as follows: through any SnapDsk™ ordering documentation or
online sign-up or subscription flow that references this Agreement.
1.6. “System” means Vendor’s specific proprietary software-as-a-service product of SnapDsk™ specified in Customer’s Order Form, including any related SnapDsk™ Code and Documentation.
1.7. “SLA” means Vendor’s standard service level agreement, currently posted at
1.8. “Term” is defined in Section 11.1 below.
1.9. “User” means any individual who uses the System on Customer’s behalf or through Customer’s account or passwords, whether authorized or not.
2. THE SYSTEM.
2.1. Use of the System. During the Term, Customer may access and use the System pursuant to: (a) the terms
of any outstanding Order, including such features and functions as the Order requires; and (b) Vendor’s
policies posted on its Website at www.snapdsk.com , as such policies may be updated from time to time.
2.2. Service Levels. Vendor will provide the remedies listed in the SLA for any failure of the System listed in
the SLA. Such remedies are Customer’s sole remedy for any failure of the System, and Customer
recognizes and agrees that if the SLA does not list a remedy for a given failure, it has no remedy. Credits
issued pursuant to the SLA apply to outstanding or future invoices only and are forfeit upon termination of
this Agreement. Vendor is not required to issue refunds or to make payments against such credits under
any circumstances, including without limitation after termination of this Agreement.
2.3. Documentation: Customer may reproduce and use the Documentation solely as necessary to support Users’ use of the System.
2.4. System Revisions. Vendor may revise System features and functions or the SLA at any time, including
without limitation by removing such features and functions or reducing service levels. If any such revision
to the System materially reduces features or functionality provided pursuant to an Order, Customer may
within 30 days of notice of the revision terminate such Order, without cause, or terminate this Agreement
without cause if such Order is the only one outstanding. If any such revision to the SLA materially reduces
service levels provided pursuant to an outstanding Order, the revisions will not go into effect with respect
to such Order until the start of the Term beginning 45 or more days after Vendor posts the revision and so
3. SYSTEM FEES. Customer will pay Vendor the fee set forth in each Order (the “Subscription Fee”) for each Term. Vendor will not be required to refund the Subscription Fee under any circumstances.
4. CUSTOMER DATA & PRIVACY.
4.1. Use of Customer Data. Unless it receives Customer’s prior written consent, Vendor: (a) will not access,
process, or otherwise use Customer Data other than as necessary to facilitate the System; and (b) will not
intentionally grant any third party access to Customer Data, including without limitation Vendor’s other
customers, except subcontractors that are subject to a reasonable nondisclosure agreement.
Notwithstanding the foregoing, Vendor may disclose Customer Data as required by applicable law or by
proper legal or governmental authority. Vendor will give Customer prompt notice of any such legal or
governmental demand and reasonably cooperate with Customer in any effort to seek a protective order or
otherwise to contest such required disclosure, at Customer’s expense.
or service linked to the System or recommended or referred to through the System or by Vendor’s staff.
4.3. Risk of Exposure. Customer recognizes and agrees that hosting data online involves risks of unauthorized
disclosure or exposure and that, in accessing and using the System, Customer assumes such risks.
Vendor offers no representation, warranty, or guarantee that Customer Data will not be exposed or
disclosed through errors or the actions of third parties.
4.4. Data Accuracy. Vendor will have no responsibility or liability for the accuracy of data uploaded to the
System by Customer, including without limitation Customer Data and any other data uploaded by Users.
4.5. Data Deletion. Vendor may permanently erase Customer Data if Customer’s account is delinquent,
suspended, or terminated for 30 days or more.
4.6. Excluded Data. Customer represents and warrants that Customer Data does not and will not include, and
Customer has not and will not upload or transmit to Vendor\'s computers or other media, any data
(“Excluded Data”) regulated pursuant to any law, rule, order or regulation of any governmental entity
having jurisdiction over such data (the “Excluded Data Laws”). CUSTOMER RECOGNIZES AND AGREES
THAT: (a) VENDOR HAS NO LIABILITY FOR ANY FAILURE TO PROVIDE PROTECTIONS SET FORTH IN THE
EXCLUDED DATA LAWS OR OTHERWISE TO PROTECT EXCLUDED DATA; AND (b) VENDOR’S SYSTEMS
ARE NOT INTENDED FOR MANAGEMENT OR PROTECTION OF EXCLUDED DATA AND MAY NOT
PROVIDE ADEQUATE OR LEGALLY REQUIRED SECURITY FOR EXCLUDED DATA.
4.7. Aggregate & Anonymized Data. Notwithstanding the provisions above of this Article 4, Vendor may use,
reproduce, sell, publicize, or otherwise exploit Aggregate Data in any way, in its sole discretion.
(“Aggregate Data” refers to Customer Data with the following removed: personally identifiable information
and the names and addresses of Customer and any of its Users or customers.)
5. CUSTOMER’S RESPONSIBILITIES & RESTRICTIONS.
5.1. Acceptable Use. Customer will comply with the AUP. Customer will not: (a) use the System for service
bureau or time-sharing purposes or in any other way allow third parties to exploit the System; (b) provide
System passwords or other log-in information to any third party; (c) share non-public System features or
content with any third party; or (d) access the System in order to build a competitive product or service, to
build a product using similar ideas, features, functions or graphics of the System, or to copy any ideas,
features, functions or graphics of the System. In the event that it suspects any breach of the requirements
of this Section 5.1, including without limitation by Users, Vendor may suspend Customer’s access to the
System without advanced notice, in addition to such other remedies as Vendor may have. Neither this
Agreement nor the AUP requires that Vendor take any action against Customer or any User or other third
party for violating the AUP, this Section 5.1, or this Agreement, but Vendor is free to take any such action it
5.2. Unauthorized Access. Customer will take reasonable steps to prevent unauthorized access to the System,
including without limitation by protecting its passwords and other log-in information. Customer will notify
Vendor immediately of any known or suspected unauthorized use of the System or breach of its security
and will use best efforts to stop said breach.
5.3. Compliance with Laws. In its use of the System, Customer will comply with all applicable laws, including
without limitation laws governing the protection of personally identifiable information and other laws
applicable to the protection of Customer Data.
5.4. Users & System Access. Customer is responsible and liable for: (a) Users’ use of the System, including
without limitation unauthorized User conduct and any User conduct that would violate the AUP or the
requirements of this Agreement applicable to Customer; and (b) any use of the System through
Customer’s account, whether authorized or unauthorized.
6. IP & FEEDBACK.
6.1. IP Rights to the System. Vendor retains all right, title, and interest in and to the System, including without
limitation all software used to provide the System and all graphics, user interfaces, logos, and trademarks
reproduced through the System. This Agreement does not grant Customer any intellectual property
license or rights in or to the System or any of its components. Customer recognizes that the System and
its components are protected by copyright and other laws.
6.2. Feedback. Vendor has not agreed to and does not agree to treat as confidential any Feedback (as defined
below) Customer or Users provide to Vendor, and nothing in this Agreement or in the parties’ dealings
arising out of or related to this Agreement will restrict Vendor’s right to use, profit from, disclose, publish,
keep secret, or otherwise exploit Feedback, without compensating or crediting Customer or the User in
question. Notwithstanding the provisions of Article 7 below, Feedback will not be considered Confidential
Information, provided information Customer transmits with Feedback or related to Feedback may be
considered Confidential Information. (“Feedback” refers to any suggestion or idea for improving or
otherwise modifying any of Vendor’s products or services.)
7. CONFIDENTIAL INFORMATION. “Confidential Information” refers to the following items Vendor discloses to Customer: (a) any document Vendor marks “Confidential”; (b) any information Vendor orally designates as “Confidential” at the time of disclosure, provided Vendor confirms such designation in writing within ten (10) business days; (c) the Documentation and System, whether or not marked or designated confidential; and (d) any other nonpublic, sensitive information Customer should reasonably consider a trade secret or otherwise confidential. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in Customer’s possession at the time of disclosure; (ii) is independently developed by Customer without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Customer’s improper action or inaction; or (iv) is approved for release in writing by Customer. Customer is on notice that the Confidential Information may include Vendor’s valuable trade secrets.
7.1. Nondisclosure. Customer will not use Confidential Information for any purpose other than to exercise its
rights and/or to perform under this Agreement (the “Purpose”). Customer: (a) will not disclose Confidential
Information to any employee or contractor of Customer unless such person needs access in order to
facilitate the Purpose and executes a nondisclosure agreement with Customer with terms no less
restrictive than those of this Article 7; and (b) will not disclose Confidential Information to any other third
party without Vendor’s prior written consent. Without limiting the generality of the foregoing, Customer
will protect Confidential Information with the same degree of care it uses to protect its own confidential
information of similar nature and importance, but with no less than reasonable care. Customer will
promptly notify Vendor of any misuse or misappropriation of Confidential Information that comes to
Customer’s attention. Notwithstanding the foregoing, Customer may disclose Confidential Information as
required by applicable law or by proper legal or governmental authority. Customer will give Vendor
prompt notice of any such legal or governmental demand and reasonably cooperate with Vendor in any
effort to seek a protective order or otherwise to contest such required disclosure, at Vendor’s expense.
7.2. Injunction. Customer agrees that breach of this Article 7 would cause Vendor irreparable injury, for which
monetary damages would not provide adequate compensation, and that in addition to any other remedy,
Vendor will be entitled to injunctive relief against such breach or threatened breach, without proving
actual damage or posting a bond or other security.
7.3. Termination & Return. With respect to each item of Confidential Information, the obligations of Section 7.1
above (Nondisclosure) will terminate ninety (90) days after the date of disclosure; provided that such
obligations related to Confidential Information constituting Vendor’s trade secrets will continue so long as
such information remains subject to trade secret protection pursuant to applicable law. Upon termination
of this Agreement, Customer will return all copies of Confidential Information to Vendor or certify, in
writing, the destruction thereof.
7.4. Retention of Rights. This Agreement does not transfer ownership of Confidential Information or grant a
license thereto. Vendor will retain all right, title, and interest in and to all Confidential Information.
7.5. Exception & Immunity. Pursuant to the Defend Trade Secrets Act of 2016, 18 USC Section 1833(b),
Recipient is on notice and acknowledges that, notwithstanding the foregoing or any other provision of this
(a) Immunity. An individual shall not be held criminally or civilly liable under any Federal or State
trade secret law for the disclosure of a trade secret that- (A) is made- (i) in confidence to a
Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii)
solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in
a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under
(b) Use of Trade Secret Information in Anti-Retaliation Lawsuit. An individual who files a lawsuit for
retaliation by an employer for reporting a suspected violation of law may disclose the trade
secret to the attorney of the individual and use the trade secret information in the court
proceeding, if the individual- (A) files any document containing the trade secret under seal; and
(B) does not disclose the trade secret, except pursuant to court order.
8. REPRESENTATIONS & WARRANTIES.
8.1. From Vendor. Vendor represents and warrants that it is the owner of the System and of each and every
component thereof, or the recipient of a valid license thereto, and that it has and will maintain the full
power and authority to grant the rights granted in this Agreement without the further consent of any third
party. Vendor’s representations and warranties in the preceding sentence do not apply to use of the
System in combination with hardware or software not provided by Vendor. In the event of a breach of the
warranty in this Section 8.1, Vendor, at its own expense, will promptly take the following actions: (a) secure
for Customer the right to continue using the System; (b) replace or modify the System to make it
noninfringing; or (c) terminate the infringing features of the Service and refund to Customer any prepaid
fees for such features, in proportion to the portion of the Term left after such termination. In conjunction
with Customer’s right to terminate for breach where applicable, the preceding sentence states Vendor’s
sole obligation and liability, and Customer’s sole remedy, for breach of the warranty in this Section 8.1 and
for potential or actual intellectual property infringement by the System.
8.2. From Customer. Customer represents and warrants that: (a) it has the full right and authority to enter into,
execute, and perform its obligations under this Agreement and that no pending or threatened claim or
litigation known to it would have a material adverse impact on its ability to perform as required by this
Agreement; (b) it has accurately identified itself and it has not provided any inaccurate information about
itself to or through the System; and (c) it is a corporation, the sole proprietorship of an individual 18 years
or older, or another entity authorized to do business pursuant to applicable law.
8.3. Warranty Disclaimers. Except to the extent set forth in the SLA and in Section 8.1 above, CUSTOMER
ACCEPTS THE SYSTEM “AS IS” AND AS AVAILABLE, WITH NO REPRESENTATION OR WARRANTY OF
ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF
INTELLECTUAL PROPERTY RIGHTS, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE
OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY
OF THE FOREGOING: (a) VENDOR HAS NO OBLIGATION TO INDEMNIFY OR DEFEND CUSTOMER OR
USERS AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY; (b) VENDOR
DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM WILL PERFORM WITHOUT INTERRUPTION
OR ERROR; AND (c) VENDOR DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM IS SECURE
FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT CUSTOMER DATA WILL REMAIN
PRIVATE OR SECURE.
9. INDEMNIFICATION. Customer will defend, indemnify, and hold harmless Vendor and the Vendor Associates (as defined below) against any “Indemnified Claim,” meaning any third party claim, suit, or proceeding arising out of or related to Customer\'s alleged or actual use of, misuse of, or failure to use the System, including without limitation: (a) claims by Users or by Customer\'s employees, as well as by Customer’s own customers; (b) claims related to unauthorized disclosure or exposure of personally identifiable information or other private information, including Customer Data; (c) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content uploaded to the System through Customer’s account, including without limitation by Customer Data; and (d) claims that use of the System through Customer’s account harasses, defames, or defrauds a third party or violates the CAN-Spam Act of 2003 or any other law or restriction on electronic advertising. Indemnified Claims include, without limitation, claims arising out of or related to Vendor’s negligence. Customer’s obligations set forth in this Article 9 include retention and payment of attorneys and payment of court costs, as well as settlement at Customer’s expense and payment of judgments. Vendor will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations. (The “Vendor Associates” are Vendor’s officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns.)
10. LIMITATION OF LIABILITY.
10.1. Dollar Cap. VENDOR’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT
EXCEED FIFTY U.S. DOLLARS ($50 US).
10.2. Exclusion of Consequential Damages. IN NO EVENT WILL VENDOR BE LIABLE TO CUSTOMER FOR ANY
CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR
RELATED TO THIS AGREEMENT.
10.3. Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS ARTICLE 10 APPLY: (a) TO LIABILITY FOR
NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT
PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF VENDOR IS ADVISED IN ADVANCE OF THE
POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE;
AND (d) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits
the application of the provisions of this Article 10, Vendor’s liability will be limited to the maximum extent
permissible. For the avoidance of doubt, Vendor’s liability limits and other rights set forth in this Article 10
apply likewise to Vendor’s affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers,
employees, consultants, and other representatives.
11. Term & Termination.
11.1. Term. The term of this Agreement (the “Term”) will commence on the Effective Date and continue for the
period set forth in the Order or, if none, for ninety (90) days. Thereafter, the Term will renew for successive
three (3) periods, unless either party refuses such renewal by written notice thirty (30) or more days before
the renewal date.
11.2. Termination for Cause. Either party may terminate this Agreement for the other’s material breach by
written notice. Such notice will specify in detail the nature of the breach and will be effective in 30 days, or
more if specified in the notice, unless the other party first cures the breach.
11.3. Effects of Termination. Upon termination of this Agreement, Customer will cease all use of the System and
delete, destroy, or return all copies of the Documentation in its possession or control. The following
provisions will survive termination or expiration of this Agreement: (a) any obligation of Customer to pay
fees incurred before termination; (b) Articles and Sections 6 (IP & Feedback), 7 (Confidential Information),
8.3 (Warranty Disclaimers), 9 (Indemnification), and 10 (Limitation of Liability); and (c) any other provision of
this Agreement that must survive to fulfill its essential purpose.
12.1. Independent Contractors. The parties are independent contractors and will so represent themselves in all
regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf.
12.2. Notices. Vendor may send notices pursuant to this Agreement to Customer’s email contact points
provided by Customer, and such notices will be deemed received 24 hours after they are sent. Customer
may send notices pursuant to this Agreement to email@example.com, and such notices will be deemed
received 72 hours after they are sent.
12.3. Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a
breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other
acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or
other causes beyond the performing party’s reasonable control.
12.4. Assignment & Successors. Customer may not assign this Agreement or any of its rights or obligations
hereunder without Vendor’s express written consent. Except to the extent forbidden in this Section 12.4,
this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and
12.5. Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that
would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event
that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be
interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the
remaining provisions of this Agreement will continue in full force and effect.
12.6. No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse
of time or by any statement or representation other than by an authorized representative in an explicit
written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this
12.7. Choice of Law & Jurisdiction: This Agreement and all claims arising out of or related to this Agreement will
be governed solely by the internal laws of the State of Nevada, including without limitation applicable
federal law, without reference to: (a) any conflicts of law principle that would apply the substantive laws of
another jurisdiction to the parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for
the International Sale of Goods; or (c) other international laws. The parties consent to the personal and
exclusive jurisdiction of the federal and state courts of Washoe County, Nevada. This Section 12.7 governs
all claims arising out of or related to this Agreement, including without limitation tort claims.
12.8. Conflicts. In the event of any conflict between this Agreement and any Vendor policy posted online,
12.9. Construction. The parties agree that the terms of this Agreement result from negotiations between them.
This Agreement will not be construed in favor of or against either party by reason of authorship.
12.10. Technology Export. Customer will not: (a) permit any third party to access or use the System in violation
of any U.S. law or regulation; or (b) export any software provided by Vendor or otherwise remove it from
the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the
generality of the foregoing, Customer will not permit any third party to access or use the System in, or
export such software to, a country subject to a United States embargo (as of the Effective Date, Cuba,
Iran, North Korea, Sudan, and Syria).
12.11. Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior
or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither
party has relied upon any such prior or contemporaneous communications.
12.12. Amendment. Vendor may amend this Agreement from time to time by posting an amended version
at its Website and sending Customer written notice thereof. Such amendment will be deemed accepted
and become effective 30 days after such notice (the “Proposed Amendment Date”) unless Customer first
gives Vendor written notice of rejection of the amendment. In the event of such rejection, this Agreement
will continue under its original provisions, and the amendment will become effective at the start of
Customer’s next Term following the Proposed Amendment Date (unless Customer first terminates this
Agreement pursuant to Article 11, Term & Termination). Customer’s continued use of the Service
following the effective date of an amendment will confirm Customer’s consent thereto. This Agreement
may not be amended in any other way except through a written agreement by authorized
representatives of each party. Notwithstanding the foregoing provisions of this Section 12.12, Vendor may
Website, and such new version will become effective on the date it is posted.