Obii.io Customer Terms of Service
Last Modified: June 5, 2018
PLEASE READ THESE CUSTOMER TERMS OF SERVICE CAREFULLY.
This is a contract between you (the Customer) and us (Obii.io). It describes the services we will provide to you, how we will work together, and other aspects of our business relationship.
It is a legal document so some of the language is necessarily “legalese”, but we have tried to make it as readable as possible. These terms are so important that we cannot provide our products and services to you unless you agree to them.
By using the Software or receiving the Consulting Services, you are agreeing to these terms.
We periodically update these terms. We will let you know when we do via an email or in-app notification.
Finally, we know legal terms can sometimes be difficult to navigate, so we wanted to give you a roadmap of the Agreement:
- DEFINITIONS. This is where we provide the detail on what the key defined terms in the Agreement mean. You can think of this kind of like a contractual dictionary.
- GENERAL COMMERCIAL TERMS. Here’s where you can find the basics about how our Software and Consulting Services are provided. For example, you can find information on access and acceptable use. These terms apply to all of our products and service offerings.
- ENROLLMENT TERMS. Customers of ours subscribe to use our software (yep, it’s SaaS), and there are some fundamental terms that apply to each subscription. There are some differences between the different types of subscriptions, and here’s where you can find that detail.
- GENERAL LEGAL TERMS. As we mention above, this is a contract, and contracts are filled with legal terms. In this section, we’ve collected the many of the remaining legal terms that make up our Customer Terms of Service.
"Agreement" means these Customer Terms of Service and all materials referred or linked to in here.
“Active Program” Programs are the products you create and sell through the our Software. A program is considered Active when paying Consumers are interacting with it. **** ajouter une note pour éviter que ce soit des gens qui reviennent chercher des infos plus tard.
"Billing Period" means the period for which you agree to pay fees in exchange for access to our Software and/or Consultation Services.
“Confidential Information” means all information provided by you or us ("Discloser") to the other (“Receiver”), whether orally or in writing that is designated as confidential. Confidential Information will include Customer Data and information about the Discloser’s business plans, technical data, and the terms of the Order. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser or (ii) was known to the Receiver before receipt from the Discloser.
"Consumer" means a single individual that purchases Programs through our Software and whose Information is stored in the Software.
"Consumer Data" means all information that was collected about consumers as they use the Software. This is the sum of Consumer Program Data and Consumer non-Program Data.
"Consumer General Data" means information relative to a Consumer that are not specific to a specific Program. For example, birthdate, email address weight etc.
"Consumer Program Data" means information relative to a Consumer that is unique to a specific Program.
“Customer” simply means you, the person paying for our Software and/or Consulting Service.
"Customer Materials" means all materials that you provide or post, upload, input or submit for public display through the Software (for example, you how-to videos).
"Consulting Services" means the professional services provided to you by us, which may include branding services, product design, integration or other consulting services.
“Enrichment Data” means the data we make available to you as part of the Software.
“Free Services” means the Software or other products or features made available by us to you on an unpaid trial or free basis.
"Obii Content" means all information, data, text, messages, software, sound, music, video, photographs, graphics, images, and tags that we incorporate into the Software or Consulting Services, including Enrichment Data.
"Order" or "Order Form" means the Obii-approved form or online subscription process by which you agree to enroll in the Software and purchase Consulting Services.
"Sensitive Information" means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other financial or health information.
"Enrollment Fee" means the amount you pay for the Software and/or Consulting Services.
"Software" means all of our web-based applications, tools and platforms that you have subscribed to by an Order Form or that we otherwise make available to you, and are developed, operated, and maintained by us, accessible via getObii.co or another designated URL, and any ancillary products and services, including website hosting, that we provide to you.
"Enrollment Term" means the initial term of your Enrollment to the applicable Software, as specified on your Order Form(s), and each subsequent renewal term (if any).
"Third-Party Products" means non-embedded products and professional services that are provided by third parties which interoperate with or are used in connection with the Software. These products and services include non-Obii apps available from, for example, the following: Wordpress, WooCommerce, Facebook etc...
"Third-Party Sites" means third-party websites linked to from within the Software, including Communications Services.
"Users" means you or your employees, representatives, consultants, contractors or agents who are authorized to use the Software for your benefit and have unique user identifications and passwords for the Software.
"Obii", "we", "us" or “our” means the applicable contracting entity as specified in the ‘Contracting Entity and Applicable Law’ section.
"You", "your" or “Customer” means the person or entity using the Software or receiving the Consulting Services and identified in the applicable account record, billing statement, online subscription process, or Order Form as the customer.
B. GENERAL COMMERCIAL TERMS
- Access. During the Subscription Term, we will provide you access to use the Software as described in this Agreement and the applicable Order.
- Additional Features. You may subscribe to additional features of the Software by placing an additional Order or activating the additional features from within your Obii account (if this option is made available by us.). This Agreement will apply to all additional Order(s) and all additional features that you activate from within your Obii account.
- Availability. We try to make the Software available 24 hours a day, 7 days a week, except for planned down-time for maintenance.
- Consulting Services. You may purchase Consulting Services by placing an Order with us. Unless we otherwise agree, the Consulting Services we provide will be delivered in English. Fees for these Consulting Services are in addition to your Subscription Fee. If you purchase Consulting Services that recur, they will be considered part of your subscription and will renew in accordance with your subscription. All Consulting Services are performed remotely unless you and we otherwise agree. We might provide some or all elements of the Consulting Services through third party service providers. Consulting Services are non-cancellable and all fees for Consulting Services are non-refundable.
- Fees and Payments
- Variable Enrollment Fees. Some Enrollment Fee are based on a fixed percentage of the monthly sales driven through our Software. This percentage is defined in the Order Form not increase for the duration of the Enrollment term.
- Fixed Enrollment Fees. Some Enrollment fees are fixed amounts.. These fees are defined in the Order Form and broken down in a Payment Calendar.
- Renewal. Renewing your Enrollment at the end of the Enrollment Term means that you will preserve any advantages from this Enrollment Terms (meaning that you will be grandfathered in and benefit from Terms not available to new members). If however your Enrollment expires then you will have to initiate a new sign up.
- Payment. Consumers will purchase your Programs through our Software. We will accept payment and make payments to your account once a month.
- Payment Calendar. This is a part of the Order Form that defines the dates at which you have a agreed to make pre-defined payments.
- Payment against invoice. Certain Consulting Services and Special Offers will be payable through invoices. If you are paying by invoice, we will invoice you upon receiving the Order Form. Payments are due within 30 days of reception, unless otherwise specified in the Order Form’s Payment Calendar.
- Payment responsibility. You agree to be responsible for the Order Form and to guarantee payment of all fees.
- Sales Tax. All fees are exclusive of taxes, which we will charge as applicable. You agree to pay any taxes applicable to your use of the Software and performance of Consulting Services.
- Use and Limitations of Use
- Lawful Use. You may not use the Software if you are legally prohibited from receiving or using the Software under the laws of the country in which you are resident or from which you access or use the Software. The Software is not designed to comply with industry-specific regulations such as the Health Insurance Portability and Accountability Act (HIPAA), the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so you may not use the Software where your communications would be subject to such laws. You agree not to use data from the Software in legal proceedings or otherwise as evidence.
- You will notify us right away of any unauthorized use of your Users’ identifications and passwords or your account by following the instructions at help@getObii.co
- Sensitive Information. As part of your normal activities, you will collect and manage sensitive information provided by Consumers. You agree to not to share this information to any external parties.
- Expertise. You assert that you possess the necessary qualifications and expertise to create wellness programs and coach Consumers through them in a safe manner.
- Intellectual property. You agree to use Material that is either free of rights or who’s rights are such that they can be legally used in the context of your Programs. We will not have any liability from your unauthorised use of intellectual property. Likewise, we will treat any original content created by you as your intellectual property and agree not to use them outside of the context of your Programs unless we receive written approval from you to do so.
- Use of Communication Services. You agree to use Communication Services in an ethical manner, protecting Consumers from abuse and removing any user that behaves unethically whether they are Consumers or your employees.
- Third-Party Sites and Products. Third-Party Sites and Products are not under our control. Third-Party Sites and Products are provided to you only as a convenience, and the availability of any Third-Party Site or Product does not mean we endorse, support or warrant the Third-Party Site or Product.
- Enrollment Term, Termination, Suspension
- Term. Your Enrollment will remain active so long as you maintain Active Programs. Enrollment may be terminated by us after sixty (60) days of Program inactivity where no Consumers are interacting with your Programs, unless otherwise indicated in your Order.
- No Refunds. We do not provide refunds if you decide to stop using the Obii Software or Consulting Services during your Enrollment Term.
- Consumer Refunds. We may choose to issue refunds to Consumers in certain situations. Refunds will be deducted from the amounts due to you as part of their purchase of your Program.
- Termination for Cause. Either party may terminate this Agreement for cause, as to any or all Softwares:
- upon thirty (30) days’ notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or
- immediately, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, liquidation or assignment for the benefit of creditors. We may also terminate this Agreement for cause on thirty (30) days’ notice if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers or any user of our Software. This Agreement may not otherwise be terminated prior to the end of the Enrollment Term.
- Suspension for Prohibited Acts. We may suspend any Customer’s access to any or all Softwares without notice for:
- use if the Software deemed by us as not creating advantages for the Consumers and/or exploiting Consumer’s vulnerabilities in order to sell them on things that will not turn into a benefit (Obii is on a Wellness mission and so Consumer Wellness is a core priority).
- use of the Software in a way that violates applicable local, state, federal, or foreign laws or regulations or the terms of this Agreement
- repeated instance of Consumers complaining about your Program Material
- repeated instances of Consumers complaining from your lack of professionalism, availability, competence or low services standards
- repeated instances of posting or uploading material that infringes or is alleged to infringe on the copyright or trademark rights of any person or entity. We may, without notice, review, edit and delete any Customer Data or Customer Materials that we determine in good faith violate these terms or the AUP, provided that, we have no duty to prescreen, control, monitor or edit your Customer Data or Customer Materials.
- Effect of Termination or Expiration. If your paid enrollment is terminated or expires, we may choose to continue to make available to you our Free Services, and you will continue to be subject to this Agreement for as long as you have access to an Obii account.
- We may or may not provide you the opportunity to retrieve Customer Data after termination or expiration, depending on the type of applicable enrollment as specified in the ‘Retrieval of Customer Data’ section below. If you terminate this Agreement for cause, we will promptly refund any prepaid but unused fees covering use of the Software after termination. If we terminate this Agreement for cause, you will promptly pay all unpaid fees due through the end of the Enrollment Term. Fees are otherwise non-refundable.
- Consumer Service Guarantee. Should Enrollment be Suspended or Terminated we reserve the right to reimburse Consumers or supply them with options with other Customers.
C. ENROLLMENT TERMS
- Customer Support. If you pay us a Enrollment Fee, phone, email and in-app support is included at no additional cost. Phone support for these Subscriptions is available from 9am Monday to 5pm Friday EST (Eastern Standard Time), with reduced hours during holidays. We accept email support questions 24 Hours per Day x 7 Days per Week. Email questions can be submitted through help@getObii.co We attempt to respond to email support questions within one business day; in practice, our responses are generally even faster. We do not promise or guarantee any specific response time.
- Renewal. Your Enrollment will automatically renew at the end of each term as long and you maintain Active Programs in the Software.
- Retrieval of Customer Data. For Enrolled Customers, as long as you have paid all fees owed to us, if you make a written request within thirty (30) days after termination or expiration of your Enrollment, we will provide you with copies of, all Customer Data then in our possession or control. We may withhold access to Customer Data until you pay any fees owed to us. Thirty (30) days after termination or expiration of your Enrollment, we will have no obligation to maintain or provide you the Customer Data and may, unless legally prohibited, delete all Customer Data in our systems or otherwise in our control.
D. GENERAL LEGAL TERMS
- Customer Data
- Aggregate Data. We may monitor use of the Software by all of our Customers and use the data gathered in an aggregate and anonymous manner. You agree that we may use and publish such information, provided that such information does not incorporate any Customer Data and/or identify you.
- Safeguards. We will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. You consent to the processing of Customer Data in Canada and in the United States.
- Obii’s Proprietary Rights. This is an Agreement for access to and use of the Software, and you are not granted a license to any software by this Agreement. The Software and Consulting Services are protected by intellectual property laws, they belong to and are the property of us or our licensors (if any), and we retain all ownership rights to them. You agree not to copy, rent, lease, sell, distribute, or create derivative works based on the Obii Content, the Software, or the Consulting Services in whole or in part, by any means, except as expressly authorized in writing by us.
- If we make Enrichment Data available to you, then you may only use that Enrichment Data in connection with your use of the Software (unless, of course, you have a source other than the Software for such Enrichment Data). The Enrichment Data we provide may be provided from or through third party service providers or public sources.
- We encourage all customers to comment on the Software or Consulting Services, provide suggestions for improving it, and vote on suggestions they like. You agree that all such comments and suggestions will be non-confidential and that we own all rights to use and incorporate them into the Software or Consulting Services, without payment or attribution to you.
- Customer’s Proprietary Rights. As between the parties, you own and retain all rights to the Customer Materials (your material) and Customer Data (data you collect through your programs). This Agreement does not grant us any ownership rights to Customer Materials or Customer Data. You grant permission to us and our licensors to use the Customer Materials and Customer Data only as necessary to provide the Software and Consulting Services to you and as permitted by this Agreement. If you are using the Software or receiving Consulting Services on behalf of another party, then you represent and warrant that you have all sufficient and necessary rights and permissions to do so.
- Consumer Personal Data. We may use Consumer Personal Data to
- allow them to connect to third party apps such as Apple Health
- facilitate onboarding into other Programs such (from you or other Customers) - for example so we don’t have to ask date of birth for every Program they join.
- contact them in order to send pertinent information.
- Confidentiality. The Receiver will:
- protect the confidentiality of the Confidential Information using the same degree of care that it uses with its own confidential information of similar nature, but with no less than reasonable care,
- not use any Confidential Information for any purpose outside the scope of this Agreement,
- not disclose Confidential Information to any third party (except our third party service providers), and
- limit access to Confidential Information to its employees, contractors, advisors and agents. Upon notice to the Disclosure, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
- Publicity. You grant us the right to add your name and company logo to our customer list, website and other marketing material.
- Indemnification. You will indemnify, defend and hold us harmless, at your expense, against any third-party claim, suit, action, or proceeding (each, an "Action") brought against us (and our officers, directors, employees, agents, service providers, licensors, and affiliates) by a third party not affiliated with us to the extent that such Action is based upon or arises out of
- unauthorized or illegal use of the Software by you,
- your noncompliance with or breach of this Agreement,
- your use of Third-Party Products, or
- the unauthorized use of the Software by any other person using your User information. We will: notify you in writing within thirty (30) days of our becoming aware of any such claim; give you sole control of the defense or settlement of such a claim; and provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defense or settlement of the claim. You shall not accept any settlement that
- imposes an obligation on us;
- requires us to make an admission; or
- imposes liability not covered by these indemnifications or places restrictions on us without our prior written consent.
- Disclaimers; Limitations of Liability
- Disclaimer of Warranties. WE AND OUR AFFILIATES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE SOFTWARE, DATA MADE AVAILABLE FROM THE SOFTWARE, Obii CONTENT, OR THE CONSULTING SERVICES FOR ANY PURPOSE. APPLICATION PROGRAMMING INTERFACES (APIs) MAY NOT BE AVAILABLE AT ALL TIMES. TO THE EXTENT PERMITTED BY LAW, THE SOFTWARE, Obii CONTENT AND CONSULTING SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH REGARD TO THE SOFTWARE AND THE CONSULTING SERVICES, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
- No Indirect Damages. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR LOSS OF PROFITS, REVENUE, DATA OR BUSINESS OPPORTUNITIES; PROVIDED THAT, THIS LIMITATION SHALL NOT APPLY TO YOU IF YOU ONLY USE THE FREE SERVICES.
- Limitation of Liability. EXCEPT FOR YOUR LIABILITY FOR PAYMENT OF FEES, YOUR LIABILITY ARISING FROM YOUR OBLIGATIONS UNDER THE ‘INDEMNIFICATION’ SECTION, AND YOUR LIABILITY FOR VIOLATION OF OUR INTELLECTUAL PROPERTY RIGHTS, IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, EITHER PARTY IS DETERMINED TO HAVE ANY LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTY, THE PARTIES AGREE THAT THE AGGREGATE LIABILITY OF A PARTY WILL BE LIMITED TO THE LESSER OF FIVE THOUSAND U.S. DOLLARS OR THE TOTAL AMOUNTS YOU HAVE ACTUALLY PAID FOR THE SOFTWARE IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM; PROVIDED HOWEVER, THIS LIMITATION SHALL NOT APPLY TO YOU IF YOU ONLY USE THE FREE SERVICES, AND IN THIS CASE, IF WE ARE DETERMINED TO HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY ARISING FROM YOUR USE OF THE FREE SERVICES, THEN OUR AGGREGATE LIABILITY WILL BE LIMITED TO ONE HUNDRED U.S. DOLLARS.
- Third Party Products. WE DISCLAIM ALL LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS THAT YOU USE. OUR LICENSORS SHALL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- Agreement to Liability Limit. YOU UNDERSTAND AND AGREE THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, WE WOULD NOT PROVIDE THE SOFTWARE TO YOU.
- Amendment; No Waiver. We may update and change any part or all of these Customer Terms of Service, including the fees and charges associated with the use of the Software (but, your fees and charges won’t change during the Enrollment Term except as we explain in the ‘Fees and Payments’ section above.) If we update or change these Customer Terms of Service, the updated Customer Terms of Service will be posted at getObii.co/terms-of-service and we will let you know via email or in-app notification.The updated Customer Terms of Service will become effective and binding on the next business day after it is posted. When we change these Customer Terms of Service, the "Last Modified" date above will be updated to reflect the date of the most recent version.
- If you do not agree with a modification to the Customer Terms of Service, you must notify us in writing within thirty (30) days after receiving notice of modification. If you give us this notice, your Enrollment will continue to be governed by the terms and conditions of the Customer Terms of Service prior to modification for the remainder of your current term. Upon renewal, the Customer Terms of Service published by us on our website will apply.
- No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Force Majeure. Neither party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
- Actions Permitted. Except for actions for nonpayment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.
- Relationship of the Parties. You and we agree that no joint venture, partnership, employment, or agency relationship exists between us.
- Compliance with Laws. We reserve the right at all times to disclose any information as necessary to satisfy any law, regulation, legal process or governmental request. You will comply with all laws in your use of the Software and Consulting Services, including any applicable export laws.
- Severability. If any part of this Agreement or an Order Form is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
- Notices. Notice will be sent to the contact address set forth herein, and will be deemed delivered as of the date of actual receipt.
- To Obii, generalcounsel@getObii.co
- To you: your address as provided in our Obii Subscription account information for you. We may give electronic notices by general notice via the Software and may give electronic notices specific to you by email to your e-mail address(es) on record in our account information for you or through the notifications center of the Software. We may give notice to you by telephone calls to the telephone numbers on record in our account information for you. You must keep all of your account information current.
- Entire Agreement. This Agreement (including each Order), is the entire agreement between us for the Software and Consulting Services and supersedes all other proposals and agreements, whether electronic, oral or written, between us. We object to and reject any additional or different terms proposed by you, including those contained in your purchase order, acceptance or website. Our obligations are not contingent on the delivery of any future functionality or features of the Software or dependent on any oral or written public comments made by us regarding future functionality or features of the Software. We might make versions of this Agreement available in languages other than English. If we do, the English version of this Agreement will govern our relationship and the translated version is provided for convenience only and will not be interpreted to modify the English version of this Agreement.
- Assignment. You will not assign or transfer this Agreement, including any assignment or transfer by reason of merger, reorganization, sale of all or substantially all of your assets, change of control or operation of law, without our prior written consent, which will not be unreasonably withheld. We may assign this Agreement to any affiliate or in the event of merger, reorganization, sale of all or substantially all of our assets, change of control or operation of law.
- No Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or shall confer upon any third party person or entity any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
- Contract for Services. This Agreement is a contract for the provision of services and not a contract for the sale of goods.
- Authority. Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms.
- Survival. The following sections shall survive the expiration or termination of this Agreement: 'Definitions’, ‘Fees and Payments’, 'Prohibited and Unauthorized Use', ‘No Refunds’, ‘Termination for Cause’, ‘Suspension for Prohibited Acts’, ‘Suspension for Non-Payment’, ‘Suspension for Present Harm’, ‘Suspension and Termination of Free Services’, ‘Effect of Termination or Expiration’, ‘Retrieval of Customer Data’, ‘Crowdsourced Data’, ‘Alpha/Beta Services’, ‘Obii’s Proprietary Rights’, ‘Customer’s Proprietary Rights’, 'Confidentiality’, ‘Publicity’, ‘Indemnification’, ‘Disclaimers; Limitations of Liability’, ‘Miscellaneous’ and ‘Contracting Entity and Applicable Law’.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order, the terms of the Order shall control, but only as to that Order.