Terms of Use
Please read these terms and conditions (“Terms”) carefully before purchasing and/or using the services offered by Pocco, Inc. DBA Sophare (“Sophare” or "Sophare AI"). These Terms are a binding agreement between Sophare and you and the entity you represent (”Customer”). These Terms govern your use of the websites (”Sites”) that link to these Terms. By signing an order form which references these Terms (an “Order Form”) or by simply using or logging into the websites and the services offered on those Sites, you are unconditionally consenting to be bound by and to become a party to these Terms (together with all Order Forms, the “Agreement”) to the exclusion of all other terms. These Terms include and incorporate any applicable Order Form mutually executed by Sophare and the Customer.
LICENSE GRANTS
Sophare grants the Customer a non-exclusive, non-transferable worldwide right to access and use the Service during the applicable Order Form Term, solely for Customer’s own internal business purposes subject to the terms of this Agreement and the Customer’s compliance with these terms and conditions. Subject to the terms of this Agreement, the Customer grants to Sophare the non-exclusive, worldwide, perpetual, irrevocable, transferable, right to use, copy, store, transmit and display Customer Data solely to the extent necessary to provide the Service as requested by the Customer. The Customer shall not (i) license, sub-license, sell, resell, transfer, assign, distribute or otherwise make available to any third party the Service or the Content, (ii) modify or make derivative works based upon the Sophare technology or the Content; (iii) commercially exploit the Service or the Content in any way, or (iv) create Internet “links'' to the Service or “frame” or “mirror” any Content contained in, or accessible from, the Service on any other server, wireless or Internet-based device. Sophare shall not use the Customer Data for any purpose other than to provide the Service to the Customer. All rights not expressly granted to the Customer are reserved by Sophare.USAGE RESTRICTIONS
The Customer will not (a) make any Service or Content available to anyone other than Customer or Users, or use any Service or Content for the benefit of anyone other than Customer or its Affiliates, unless expressly stated otherwise in an Order Form or the Documentation, (b) sell, resell, license, sub-license, distribute, make available, rent or lease any Service or Content, or include any Service or Content in a service bureau or outsourcing offering, (c) use a Service or Non-Sophare Application to store or transmit infringing, libelous, or otherwise unlawful or tortuous material, or to store or transmit material in violation of third-party privacy rights, (d) use a Service or Non-Sophare Application to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorized access to any Service or Content or its related systems or networks, (g) permit direct or indirect access to or use of any Services or Content in a way that circumvents a contractual usage limit, or use any Services to access or use any of Sophare intellectual property except as permitted under this Agreement, an Order Form, or the Documentation, (h) modify, copy, or create derivative works based on a Service or any part, feature, function or user interface thereof, (i) copy Content except as permitted herein or in an Order Form or the Documentation, (j) attempt to download entire Customer database(s) without prior approval by Sophare, (j) frame or mirror any part of any Service or Content, other than framing on Customer’s own intranets or otherwise for its own internal business purposes or as permitted in the Documentation, (k) except to the extent permitted by applicable law, disassemble, reverse engineer, or decompile a Service or Content or access it to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Service, (3) copy any ideas, features, functions or graphics of the Service, or (4) determine whether the Services are within the scope of any patent. The Customer is responsible for all of the Customer’s activity in connection with the Service, including but not limited to the use and distribution of login credentials by the Customer’s employees or agents and uploading Customer Data (as defined below) onto the Service. In addition, the Customer may not access the Services for purposes of monitoring their availability, performance, or functionality, or for any other benchmarking or competitive purposes.INVOICING AND PAYMENT
The Customer will provide Sophare with valid and updated credit card information or with a valid purchase order or alternative document reasonably acceptable to Sophare. If the Customer provides credit card information to Sophare, the Customer authorizes Sophare to charge such credit card for all Purchased Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as outlined in the Payment Term established in the applicable Order Form. Such charges shall be made in advance, either annually or under any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, Sophare will invoice the Customer in advance and otherwise under the relevant Order Form. Unless otherwise stated in the Order Form, invoiced fees are due net 30 days from the invoice date. The Customer is responsible for providing complete and accurate billing and contact information to Sophare and notifying Sophare of any changes to such information. All annual billings are payable upfront.FEES; OVERDUE CHARGES
The Customer will pay Sophare all fees specified in each Order Form. All invoices issued under this Agreement are payable within the number of calendar dates specified by the Payment Term established in the applicable Order Form from the date of invoice. Past due invoices are subject to interest on any outstanding balance of the lesser of 1.5% per month or the maximum amount permitted by law. The Customer is responsible for all taxes associated with the Service (excluding taxes based on Sophare’s net income). All fees paid are non-refundable and are not subject to set-off. During the relevant subscription term, quantities purchased cannot be decreased and payment obligations are non-cancelable. Sophare may condition future subscription renewals and Order Forms on payment terms shorter than those specified in the “Invoicing and Payment” section above.User, Site, Data Usage, and Per Record subscription fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof; therefore, fees for User, Site, Data Usage, or Per Record subscriptions added in the middle of a monthly period will be charged for that full monthly period and the monthly periods remaining in the subscription term.
SERVICE UPDATES
From time to time, Sophare may release upgrades, patches, enhancements, or modifications (”Updates'') to improve and optimize the Service. Such Updates will become part of the Services and subject to this Agreement; provided that Sophare shall have no obligation under this Agreement or otherwise to provide any such Updates. The Customer understands that Sophare may cease supporting old versions or releases of the Services at any time in its sole discretion; provided that Sophare shall use commercially reasonable efforts to give the Customer advance notice of any major changes.CUSTOMER CONTACT
The Customer will appoint an employee who will be accountable for all matters concerning this Agreement ("Primary Contact"). The Customer has the option to modify the designated Primary Contact by giving written notice to Sophare. The Primary Contact will assign "Owners" and "Technical Owners" who have the ability to generate and distribute accounts and login credentials. The Customer is responsible for the use and activity in connection with all such accounts.FEEDBACK AND SUPPORT
Sophare values Customer feedback. If the Customer encounters any issues or has suggestions related to the Service, please contact Sophare’s support team.The Customer may from time to time provide suggestions, comments, or other feedback to Sophare with respect to the Service (“Feedback”). Feedback, even if designated as confidential by the Customer, does not create any confidentiality obligation for Sophare notwithstanding anything else. The Customer shall, and hereby does, grant to Sophare a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid-up license to use and exploit the Feedback for any purpose.
TERMINATION AND REDUCTION OF SERVICE LEVEL
This Agreement commences on the effective date set forth in the first Order Form. The Initial Term of this Agreement will be one year, or another schedule as determined by Customer’s election, commencing on the date the Customer agrees to pay for the Service. This Agreement will automatically renew upon the expiration of the Initial Term. Sophare may terminate this Agreement or reduce the level of service by notifying the other party in writing at least 30 days prior to the end of the then current term. Sophare reserves the right to terminate or reduce the Customer’s level of service if the Customer violates any terms or conditions set forth in this Agreement, engages in unauthorized use, distribution, or reproduction of the Service, or otherwise breaches Sophare’s policies. The Customer agrees and acknowledges that Sophare has no obligation to retain the Customer Data, and will delete such Customer Data, if the Customer has materially breached this Agreement, including but not limited to failure to pay outstanding fees, and such breach has not been cured within 30 days of notice of such breach.In the case of free trials, notifications provided through the Service indicating the remaining number of days in the free trial shall constitute notice of termination. In addition, Sophare may terminate a free account if the Customer does not first log on within 30 days after registration or if 90 days have passed since the Customer last logged on. The Customer will be billed for the period from the date the Customer initiates the termination/reduction up to and including the date one month following the date the Customer initiated the termination/reduction at the service level prior to such termination/reduction. Upon termination/reduction, the Customer will not be granted a refund of any prepaid charges applicable to the period starting one month after Sophare’s receipt of the Customer’s written notice of the termination/reduction. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, accrued payment obligations, ownership provisions, warranty disclaimers, indemnity, and limitations of liability.
INDEMNIFICATION
The Customer shall indemnify and hold Sophare, its licensors and each such party’s parent organizations, subsidiaries, affiliates, contractors, officers, directors, suppliers, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) (”Losses”) arising out of or in connection with: (i) a claim alleging that use of the Customer Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by the Customer of the representations and warranties; or (iii) a claim arising from the breach by the Customer or Users of this Agreement, provided in any such case that Sophare (i) gives written notice of the claim promptly to the Customer (ii) gives the Customer sole control of the defense and settlement of the claim (provided that the Customer may not settle or defend any claim unless it unconditionally releases Sophare of all liability and such settlement does not affect Sophare’s business or Service); (iii) provides to the Customer all available information and assistance; and (iv) has not compromised or settled such claim.Sophare shall indemnify and hold the Customer and its parent organizations, subsidiaries, affiliates, contractors, officers, directors, suppliers, employees, attorneys and agents harmless from and against any and all Losses arising out of or in connection with: (i) a claim alleging that the Service directly infringes a copyright, a U.S. patent issued as of the Effective Date, or trademark of a third party; (ii) a claim, which if true, would constitute a violation of Sophare of the representations or warranties; or (iii) a claim arising from breach of this Agreement by Sophare; provided that the Customer (i) promptly gives written notice of the claim to Sophare; (ii) gives Sophare sole control of the defense and settlement of the claim (provided that Sophare may not settle or defend any claim unless it unconditionally releases the Customer of all liability); (iii) provides to Sophare all available information and assistance; and (iv) has not compromised or settled such claim. Sophare shall have no indemnification obligation, and the Customer shall indemnify Sophare pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Service with any of the Customer’s products, service, and hardware or business process(s).
LIMITATION OF LIABILITY
In no event shall either party’s aggregate liability exceed the amounts actually paid by and/or due from the Customer in the twelve (12) month period immediately preceding the event giving rise to such claim. In no event shall either party and/or its licensors be liable to anyone for any indirect, punitive, special, exemplary, incidental, consequential or other damages of any type or kind (including loss of data, revenue, profits, cost of procurement of substitute goods or services, use or other economic advantage) arising out of, or in any way connected with this service, including but not limited to the use or inability to use the service, or for any content obtained from or through the service, any interruption, inaccuracy, error or omission, regardless of cause in the content, even if the party from which damages are being sought or such party’s licensors have been previously advised of the possibility of such damages.REPRESENTATION AND WARRANTIES
Each party represents and warrants that (a) it has the legal power and authority to enter into this Agreement and perform its obligations hereunder, (b) it is a duly organized and validly existing under the laws and jurisdiction in which it is organized, (c) this Agreement is legally binding upon it and enforceable in accordance with its terms, and (d) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound. Sophare represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform substantially in accordance with the online Sophare help documentation under normal use and circumstances. The Customer represents and warrants that it has not falsely identified itself nor provided any false information to gain access to the Service, that the Customer’s billing information is correct, and that the Customer will comply with the Use Guidelines.DISCLAIMER OF WARRANTIES
Sophare and its licensors make no representation, warranty, or guaranty as to the reliability, timeliness, quality, suitability, truth, availability, accuracy or completeness of the Service or any content; Sophare and its licensors do not represent or warrant that (a) the use of the Service will be secure, timely, uninterrupted or error-free or operate in combination with any other hardware, software, system or data, (b) the Service will meet the Customer’s requirements or expectations, (c) any stored data will be accurate or reliable, (d) the quality of any products, services, information, or other material purchased or obtained by the Customer through the service will meet the Customer’s requirements or expectations, (e) errors or defects will be corrected, or (f) the Service or the server(s) that make the Service available are free of viruses or other harmful components;(iii) the Service and all content is provided to the Customer strictly on an “as is” and “as available” basis; and (iv) all conditions, representations and warranties, whether express, implied, statutory or otherwise, including, without limitation, any implied warranty of merchantability, fitness for a particular purpose, or non-infringement of third party rights, are hereby disclaimed to the maximum extent permitted by applicable law by Sophare and its licensors.THIRD PARTY SERVICES
The Customer acknowledges and agrees that the Services have the ability to operate with or use application programming interfaces (APIs) and/or other services operated or provided by third parties (“Third Party Services”). Sophare is not responsible for the operation of any Third Party Services nor the availability or operation of the Services to the extent such availability and operation is dependent upon Third Party Services. The Customer is solely responsible for procuring any and all rights necessary for it to access Third Party Services and for complying with any applicable terms or conditions. Sophare does not make any representations or warranties with respect to Third Party Services or any third-party providers. Any exchange of data or other interaction between the Customer and a third-party provider is solely between the Customer and such third-party provider and is governed by such third party’s terms and conditions and privacy policies.The Customer shall not (i) license, sub-license, sell, resell, transfer, assign, distribute or otherwise make available to any third party the Service or the content, (ii) modify or make derivative works based upon the Service or the content; (iii) commercially exploit the Service or the content in any way, or (iv) create Internet “links” to the Service or “frame” or “mirror” any content contained in, or accessible from, the Service on any other server, wireless or Internet-based device.
CONFIDENTIALITY
As between the parties, each party retains all ownership rights in and to its Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section. Notwithstanding the preceding, Sophare may disclose the terms of this Agreement and any applicable Order Form to a subcontractor or Non-Sophare Application Provider to the extent necessary to perform Sophare’s obligations under this Agreement, under terms of confidentiality materially as protective as set forth herein. Sophare reserves the right to use the Customer’s name as a reference for marketing or promotional purposes on Sophare’s website and in other communication with existing or potential Sophare customers without the prior consent of the Customer.OWNERSHIP
Sophare alone (and its licensors, where applicable) shall own all right, title, and interest, including all related Intellectual Property Rights, in and to the Sophare’s software, products, works, and other intellectual property and moral rights related or created used, or provided by Sophare for the purposes of this Agreement, including any Updates, improvements, modifications, copies, derivative works of the foregoing and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by the Customer or any other party relating to the Service. This Agreement is not a sale and does not convey any rights of ownership in or related to the Service, Sophare’s technology or Intellectual Property owned by Sophare to the Customer. The Sophare name and the Sophare logo, and the product names associated with the Service are trademarks of Sophare, and no right or license is granted to use them. Nothing in this Agreement will impair Sophare’s right to develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as, or otherwise compete with any products, software, or technologies that the Customer may develop, produce, market, or distribute.LOCAL LAWS AND EXPORT CONTROL
The Customer represents, covenants, and warrants that the Customer shall (i) use the Service in compliance with all applicable local, state, national and foreign laws, treaties, and regulations, and all compulsory industry self-regulations, whether now existing or hereafter enacted, including without limitation those related to advertising, data privacy, international communications, export and the transmission of technical or personal data, state licensing, tax reporting, UDAAP and other laws related to unfair or deceptive acts or practices, the Federal USA PATRIOT Act, the Payment Card Industry Data Security Standard Requirements, the Federal Gramm-Leach-Bliley Act, Federal Telephone Consumer Protection Act, the Federal CAN-SPAM Act, and the EU General Data Protection Regulation, as they may be amended from time to time, and (ii) not use the Service in a manner that violates any third-party intellectual property, contractual or other proprietary rights.Sophare and its licensors make no representation that the Service is appropriate or available for use in other locations. If the Customer uses the Service from outside the United States of America and/or the European Union, the Customer is solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries.
CUSTOMER DATA
For purposes of this Agreement, “Customer Data” means any data, information or other material provided, uploaded, or submitted by the Customer, its employees or agents to the Service in the course of using the Service. The Customer shall retain all right, title, and interest in and to the Customer Data, including all intellectual property rights therein. The Customer, not Sophare, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data. The Customer represents and warrants to Sophare that the Customer owns all rights, title, and interest in and to the Customer Data, or that the Customer has otherwise secured all necessary rights and consents in the Customer Data as may be necessary to permit the access, use and distribution thereof as contemplated by this Agreement, including all rights and consents necessary under any applicable privacy laws for Sophare to process consumer Personal Data in accordance with this Agreement. “Personal Data” means any information that identifies or relates to a particular individual and also includes information referred to as “personally identifiable information” or “personal information” under applicable data privacy laws, rules or regulations. Sophare shall use commercially reasonable efforts to maintain the security and integrity of the Service and the Customer Data.Sophare is not responsible to the Customer for unauthorized access to Customer Data or the unauthorized use of the Service unless such access is due to Sophare’s gross negligence or willful misconduct. The Customer is responsible for the use of the Service by any person to whom the Customer has given access to the Service, even if the Customer did not authorize such use. The Customer agrees and acknowledges that Customer Data may be irretrievably deleted if the Customer’s account is ninety (90) days or more delinquent. Notwithstanding anything to the contrary, The Customer acknowledges and agrees that Sophare may (a) internally use and modify (but not disclose) Customer Data for the purposes of (i) providing the Service to Customer, and (ii) generating Aggregated Anonymous Data (as defined below), and (b) freely use and make available Aggregated Anonymous Data for Sophare’s business purposes (including without limitation, for purposes of improving, testing, operating, promoting and marketing Sophare’s products and services). “Aggregated Anonymous Data” means data submitted to, collected by, or generated by Sophare in connection with Customer’s use of the Service, but only in aggregate, anonymized form which can in no way be linked specifically to the Customer or any individuals. Sophare shall own any Aggregated Anonymous Data. Sophare shall maintain all Customer Data for six (6) months following termination or expiration of this Agreement to enable the Customer to reference such Customer Data.
MODIFICATION TO TERMS
Sophare reserves the right to change the terms and conditions of this Agreement or its policies relating to the Service at any time and shall notify the Customer by posting an updated version of this Agreement on the Service. The Customer is responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes shall constitute the Customer’s consent to such changes.ASSIGNMENT
This Agreement may not be assigned by the Customer without the prior written approval of Sophare but may be assigned by Sophare to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void.GENERAL
With respect to the U.S. Customers, this Agreement shall be governed by California law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in San Francisco, California.ARBITRATION AGREEMENT
Both the Customer and Sophare acknowledge and agree that for the purposes of any dispute arising out of or relating to the subject matter of this Agreement, Sophare’s officers, directors, employees and independent contractors (“Personnel”) are third-party beneficiaries of this Agreement, and that upon the Customer’s acceptance of this Agreement, Personnel will have the right (and will be deemed to have accepted the right) to enforce this Agreement against the Customer as the third-party beneficiary hereof.(a) Arbitration Rules; Applicability of Arbitration Agreement. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement arising out of or relating to the subject matter of this Agreement directly through good-faith negotiations, which shall be a precondition to either party initiating arbitration. If such negotiations do not resolve the dispute, it shall be finally settled by binding arbitration in San Francisco, California.
(b) Waiver of Jury Trial. The Customer and Sophare waive any constitutional and statutory rights to go to court and have a trial in front of a judge or jury. The Customer and Sophare are instead choosing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between the Customer and Sophare over whether to vacate or enforce an arbitration award, the Customer and Sophare waive all rights to a jury trial, and elect instead to have the dispute be resolved by a judge.
(c) Waiver of Class or Consolidated Actions. All claims and disputes within the scope of this arbitration agreement must be arbitrated or litigated on an individual basis and not on a class basis. Claims of more than one customer or user cannot be arbitrated or litigated jointly or consolidated with those of any other customer or user. If however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither the Customer nor Sophare is entitled to arbitration; instead all claims and disputes will be resolved in a court.
MISCELLANEOUS
This Agreement represents the entire agreement between the Customer and Sophare concerning the subject matter and supersedes all previous or contemporaneous communications and proposals, whether oral, written, or electronic. In case of a conflict between these Terms and an Order Form, these Terms will prevail unless the Customer and Sophare expressly agree in the Order Form to modify specific provisions of these Terms. Any amendments to this Agreement must be in writing and executed by both parties. Neither party is liable for the failure to perform its obligations due to causes beyond its reasonable control, such as natural disasters, acts of God, acts of war, or government actions. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The Customer agrees that the parties may undertake certain transactions contemplated by this Agreement via electronic signatures. The Customer agrees that by executing any documents with an electronic signature, the Customer is creating a legally valid and enforceable signature just as if the relevant document was signed by the Customer in hardcopy.