Terms of Service for BrowsePlay, Inc.
Last updated:1/15/18
Please read these Terms of Service ("Terms", ”Agreement”, "Terms of Service") carefully before
using the Browseplay.com website and application (the "Service") operated by BrowsePlay, Inc.
("us", "we", “Company”, or "our").
Your access to and use of the Service is conditioned on your acceptance of and compliance
with these Terms. These Terms apply to all visitors, users and others who access or use the
Service.
By accessing or using the Service you agree to be bound by these Terms. If you disagree
with any part of the terms then you may not access the Service.
1. SAAS SERVICES AND SUPPORT
1.1 Subject to the terms of this Agreement, Company will use commercially reasonable
efforts to provide Customer the Services. As part of the registration process, Customer will
identify an administrative user name and password for Customer’s Company account.
Company reserves the right to refuse registration of, or cancel passwords it deems
inappropriate.
1.2 Subject to the terms hereof, Company will provide Customer with reasonable technical
support services in accordance with Company’s standard practice.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or
otherwise attempt to discover the source code, object code or underlying structure, ideas, know-
how or algorithms relevant to the Services or any software, documentation or data related to the
Services (“Software”); modify, translate, or create derivative works based on the Services or any
Software (except to the extent expressly permitted by Company or authorized within the
Services); use the Services or any Software for timesharing or service bureau purposes or
otherwise for the benefit of a third; or remove any proprietary notices or labels. With respect to
any Software that is distributed or provided to Customer for use on Customer premises or
devices, Company hereby grants Customer a non-exclusive, non-transferable, non-
sublicensable license to use such Software during the Term only in connection with the
Services.
2.2 Further, Customer may not remove or export from the United States or allow the export
or re-export of the Services, Software or anything related thereto, or any direct product thereof
in violation of any restrictions, laws or regulations of the United States Department of
Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any
other United States or foreign agency or authority. As defined in FAR section 2.101, the
Software and documentation are “commercial items” and according to DFAR section 252.227
7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial
computer software documentation.” Consistent with DFAR section 227.7202 and FAR section
12.212, any use modification, reproduction, release, performance, display, or disclosure of such
commercial software or commercial software documentation by the U.S. Government will be
governed solely by the terms of this Agreement and will be prohibited except to the extent
expressly permitted by the terms of this Agreement
2.3 Customer represents, covenants, and warrants that Customer will use the Services only
in compliance with Company’s standard published policies then in effect (the “Policy”) and all
applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless
Company against any damages, losses, liabilities, settlements and expenses (including without
limitation costs and attorneys’ fees) in connection with any claim or action that arises from an
alleged violation of the foregoing or otherwise from Customer’s use of Services Although
Company has no obligation to monitor Customer’s use of the Services, Company may do so
and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the
foregoing.
2.4 Customer shall be responsible for obtaining and maintaining any equipment and
ancillary services needed to connect to, access or otherwise use the Services, including, without
limitation, modems, hardware, servers, software, operating systems, networking, web servers
and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the
security of the Equipment, Customer account, passwords (including but not limited to
administrative and user passwords) and files, and for all uses of Customer account or the
Equipment with or without Customer’s knowledge or consent.
3. CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing
Party”) has disclosed or may disclose business, technical or financial information relating to the
Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing
Party). Proprietary Information of Company includes non-public information regarding features,
functionality and performance of the Service. Proprietary Information of Customer includes non-
public data provided by Customer to Company to enable the provision of the Services
(“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect
such Proprietary Information, and (ii) not to use (except in performance of the Services or as
otherwise permitted herein) or divulge to any third person any such Proprietary Information.
The Disclosing Party agrees that the foregoing shall not apply with respect to any information
after five (5) years following the disclosure thereof or any information that the Receiving Party
can document (a) is or becomes generally available to the public, or (b) was in its possession or
known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without
restriction by a third party, or (d) was independently developed without use of any Proprietary
Information of the Disclosing Party or (e) is required to be disclosed by law.
3.2 Customer shall own all right, title and interest in and to the Customer Data[, as well as
any data that is based on or derived from the Customer Data and provided to Customer as part
of the Services][OPTIONAL: this grant of rights to derivative data may not be appropriate in all
cases. Some SaaS companies prefer to keep ownership of derived data and list it below (at
least as a starting point for negotiation.]. Company shall own and retain all right, title and
interest in and to (a) the Services and Software, all improvements, enhancements or
modifications thereto, (b) any software, applications, inventions or other technology developed
in connection with Implementation Services or support, and (c) all intellectual property rights
related to any of the foregoing.
3.3 Notwithstanding anything to the contrary, Company shall have the right collect and
analyze data and other information relating to the provision, use and performance of various
aspects of the Services and related systems and technologies (including, without limitation,
information concerning Customer Data and data derived therefrom), and Company will be free
(during and after the term hereof) to (i) use such information and data to improve and enhance
the Services and for other development, diagnostic and corrective purposes in connection with
the Services and other Company offerings, and (ii) disclose such data solely in aggregate or
other de-identified form in connection with its business. No rights or licenses are granted except
as expressly set forth herein.
4. PAYMENT OF FEES
4.1 Customer will pay Company the then applicable fees described in the Order Form for the
Services and Implementation Services in accordance with the terms therein (the “Fees”). If
Customer’s use of the Services exceeds the Service Capacity set forth on the Order Form or
otherwise requires the payment of additional fees (per the terms of this Agreement), Customer
shall be billed for such usage and Customer agrees to pay the additional fees in the manner
provided herein. Company reserves the right to change the Fees or applicable charges and to
institute new charges and Fees at the end of the Initial Service Term or then current renewal
term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer
believes that Company has billed Customer incorrectly, Customer must contact Company no
later than 60 days after the closing date on the first billing statement in which the error or
problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to
Company’s customer support department. Some parts of the Service are billed on a
subscription basis ("Subscription(s)"). You will be billed in advance on a recurring date based off
of the plan chosen and bandwidth used.
4.2 Company may choose to bill through an invoice, in which case, full payment for invoices
issued in any given month must be received by Company thirty (30) days after the mailing date
of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any
outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of
collection and may result in immediate termination of Service. Customer shall be responsible for
all taxes associated with Services other than U.S. taxes based on Company’s net income.
5. TERM AND TERMINATION
5.1 Subject to earlier termination as provided below, this Agreement is for the Initial Service
Term as specified in the Order Form, and shall be automatically renewed for additional periods
of the same duration as the Initial Service Term (collectively, the “Term”), unless either party
requests termination at least thirty (30) days prior to the end of the then-current term.
5.2 In addition to any other remedies it may have, either party may also terminate this
Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the
other party materially breaches any of the terms or conditions of this Agreement. Customer will
pay in full for the Services up to and including the last day on which the Services are provided.
All sections of this Agreement which by their nature should survive termination will survive
termination, including, without limitation, accrued rights to payment, confidentiality obligations,
warranty disclaimers, and limitations of liability.
6. WARRANTY AND DISCLAIMER
Company shall use reasonable efforts consistent with prevailing industry standards to maintain
the Services in a manner which minimizes errors and interruptions in the Services and shall
perform the Implementation Services in a professional and workmanlike manner. Services may
be temporarily unavailable for scheduled maintenance or for unscheduled emergency
maintenance, either by Company or by third-party providers, or because of other causes beyond
Company’s reasonable control, but Company shall use reasonable efforts to provide advance
notice in writing or by e-mail of any scheduled service disruption. HOWEVER, COMPANY
DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR
FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE
OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS
SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS”
AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT
NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE AND NON-INFRINGEMENT.
7. INDEMNITY
Company shall hold Customer harmless from liability to third parties resulting from infringement
by the Service of any United States patent or any copyright or misappropriation of any trade
secret, provided Company is promptly notified of any and all threats, claims and proceedings
related thereto and given reasonable assistance and the opportunity to assume sole control
over defense and settlement; Company will not be responsible for any settlement it does not
approve in writing. The foregoing obligations do not apply with respect to portions or
components of the Service (i) not supplied by Company, (ii) made in whole or in part in
accordance with Customer specifications, (iii) that are modified after delivery by Company, (iv)
combined with other products, processes or materials where the alleged infringement relates to
such combination, (v) where Customer continues allegedly infringing activity after being notified
thereof or after being informed of modifications that would have avoided the alleged
infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this
Agreement. If, due to a claim of infringement, the Services are held by a court of competent
jurisdiction to be or are believed by Company to be infringing, Company may, at its option and
expense (a) replace or modify the Service to be non-infringing provided that such modification
or replacement contains substantially similar features and functionality, (b) obtain for Customer
a license to continue using the Service, or (c) if neither of the foregoing is commercially
practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a
refund of any prepaid, unused fees for the Service.
8. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A
PERSON, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL
EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES,
REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE
OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS
AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT
LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR
LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF
SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR
ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C)
FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY
AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS,
EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER
THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE
LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
9. MISCELLANEOUS
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be
limited or eliminated to the minimum extent necessary so that this Agreement will otherwise
remain in full force and effect and enforceable. This Agreement is not assignable, transferable
or sublicensable by Customer except with Company’s prior written consent. Company may
transfer and assign any of its rights and obligations under this Agreement without consent. This
Agreement is the complete and exclusive statement of the mutual understanding of the parties
and supersedes and cancels all previous written and oral agreements, communications and
other understandings relating to the subject matter of this Agreement, and that all waivers and
modifications must be in a writing signed by both parties, except as otherwise provided herein.
No agency, partnership, joint venture, or employment is created as a result of this Agreement
and Customer does not have any authority of any kind to bind Company in any respect
whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing
party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will
be in writing and will be deemed to have been duly given when received, if personally delivered;
when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is
sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if
sent by certified or registered mail, return receipt requested. This Agreement shall be governed
by the laws of the State of California without regard to its conflict of laws provisions. The
parties shall work together in good faith to issue at least one mutually agreed upon press
release within 90 days of the Effective Date, and Customer otherwise agrees to reasonably
cooperate with Company to serve as a reference account upon request.
Contact Us
If you have any questions about these Terms, please contact us.
info@browseplay.com