TERMS OF SERVICE

Last updated on May 20, 2016

The following Terms of Service (“Terms” or “Agreement”) constitute a legal agreement between you or the entity or company that you represent (“Customer” or “You”) and StepShot, OÜ (“StepShot”), which governs Customer’s use of the StepShot Service. The Service can be accessed as a paid service having the specifications outlined in the respective Plan, for which Customer pays a monthly or yearly subscription fee (the “Paid Version”). Customer’s use of the Service is subject to (a) the terms and conditions set forth below and (b) StepShot’s privacy policy found at http://stepshot.net/privacy and incorporated herein by reference, so please take the time to fully understand how these Terms and StepShot’s privacy policy govern Customer’s relationship with StepShot and Customer’s use of the Service. The Service is available only to individuals who are at least 18 years old. If Customer is an individual, Customer represents and warrants that Customer is at least 18 years old.

CUSTOMER’S RIGHT TO USE THE SERVICE IS EXPRESSLY CONDITIONED ON THE ACCEPTANCE OF THESE TERMS. BY CLICKING ON THE “ACCEPT” BUTTON AND/OR USING THE SERVICE, YOU ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ACCESSING THE SERVICE ON BEHALF OF YOUR EMPLOYER OR ANOTHER ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO AGREE TO THESE TERMS ON ITS BEHALF. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICE.

1. DEFINITIONS

“Confidential Information” means all trade secrets, know-how, inventions, developments, software and other financial, business or technical information disclosed by or for a party in relation to this Agreement, but not including any information the receiving party can demonstrate is (a) already rightfully known by it without restriction, (b) rightfully furnished to it by a third party without restriction and without breach of any obligation to the disclosing party, (c) generally available to the public without breach of this Agreement or (d) independently developed by it without reliance on the Confidential Information of the disclosing party. All pricing information is StepShot’s Confidential Information. “Content” means all text, software, scripts, graphics, photos, sounds, music, videos, audiovisual combinations, interactive features and other materials that may be viewed on, accessed through, or contributed to the Service. “Customer Data” means all Customer registration information and other transaction data collected, processed and retained by StepShot in connection with providing the Service, including without limitation content submitted by Customer Managers and Contacts. “Plan” means StepShot’s free or any paid plans, as applicable and as further described on StepShot’s website available at: http://stepshot.net/buy. “Service” means StepShot service hosted by StepShot and provided to Customer under this Agreement as well as all StepShot desktop clients. “Systems” means modems, servers, software, network and communications equipment and ancillary services that are owned, controlled or procured by Customer. “Updates” means any patch, revision or update to the Service delivered by StepShot.

2. SERVICE

2.1 Description of Service.

The Service consists of a desktop application and web site. Web site allows users that register for an account on the Service (an “Account Owner”). Once registered with the Service, each Account Owner receives his or her own StepShot Account. Credentials used to login into an account on the web site, can be used to sign in into desktop application. The available features you may use depend on the type of Plan you have. Unless explicitly stated otherwise, any new features that augment or enhance the current Service, including the release of new StepShot’s tools and resources, shall be subject to the Terms of Service. In order to use the Service, you must obtain access to the World Wide Web, either directly or through devices that access web-based content, and pay any service fees associated with such access. In addition, you must provide all equipment necessary to make such connection to the World Wide Web, including a computer and modem or other access device. You agree not to access the Service by any means other than through the interfaces that are provided by StepShot for use in accessing the Service.
Subject to all terms and conditions of this Agreement, StepShot will use commercially reasonable efforts to provide the Service. StepShot may provide the Service to Customer directly, or indirectly using contractors or other third party vendors or service providers. Use of the Service by Customer shall not unreasonably interfere with use of the Service by other StepShot customers.

2.2 Users.

Customer’s use of the Service is limited to the number of licenses or users (seats) specified in the Customer’s Plan. Each Account Owner (“Admin”) may appoint the number of end users specified in the Plan, provided that the aggregate use of the Service by Customer Admin and all Customer appointed Users may not exceed the maximum limits as specified in the Plan. Customer shall be responsible for any breaches of this Agreement by its Admin and/or Users.

2.3 Security Measures.

Customer, Customer Admin and Customer appointed Users may access the Service as StepShot instructs through a combination of one or more user emails and passwords.

2.4 Passwords.

Customer shall take full responsibility and liability for the security of each of its user emails and passwords (including, without limitation, those assigned to its Admin and Users), and shall be solely responsible for all use of the Service through such user names or passwords. Customer agrees to immediately notify StepShot of any unauthorized use of the Service or any other breach of security known to Customer.

2.5 Prohibited Uses.

As a condition of use of the Service, You promise not to use the Service for any purpose that is prohibited by these Terms.
By way of example, and not as a limitation, You shall not (and shall not permit any Admin or User to) directly or indirectly or permit any third party to: (a) interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service; (b) use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, “scrape”, “data mine” or in any way gather information, content or other materials from Service or reproduce or circumvent the navigational structure or presentation of Service; (c) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Service, except to the limited extent applicable laws specifically prohibit such restriction, (d) use any of StepShot’s Confidential Information to create any software, documentation or service that is similar to the Service or any documentation provided in connection therewith; (e) modify, translate, or otherwise create derivative works of any part of the Service, (f) copy, license, sublicense, sell, resell, encumber, rent, lease, time-share, distribute, transfer or otherwise use or exploit or make available the Service in any service bureau arrangement or otherwise for the benefit of any third party without the prior written consent of StepShot. You shall abide by all applicable local, state, national and international laws and regulations. Finally, you must be a human. Access to the Service by “bots” or other automated methods is not permitted.

2.6 Changes.

StepShot reserves the right to modify or discontinue any Service or Plan (in whole or in part) at any time by giving at least 60 days’ notice to Customer.

2.7 Limitations.

StepShot will not be responsible or liable for any failure in the Service resulting from or attributable to (a) Customer’s Systems, (b) network, telecommunications or other service or equipment failures outside of StepShot’s facilities, (c) Customer’s or third party’s products, services, negligence, acts or omissions, (d) any force majeure or cause beyond StepShot’s reasonable control, (e) scheduled maintenance or (f) unauthorized access, breach of firewalls or other hacking by third parties.

2.8 Systems.

Customer shall obtain and operate all Systems needed to connect to, access or otherwise use the Service, and provide all corresponding backup, recovery and maintenance services. Customer shall ensure that all Systems are compatible with the Service. Customer shall maintain the integrity and security of its Systems (physical, electronic and otherwise).

3. SUPPORT AND MAINTENANCE

3.1 Support.

StepShot will use commercially reasonable efforts to provide Customer with support and maintenance services for the Service in accordance with its standard practices (as amended from time to time). Customer agrees that StepShot will have the right to charge in accordance with its then current policies for any support services resulting from problems, errors or inquiries relating to Systems or any other network, equipment, service or software not owned, controlled or procured by StepShot.

3.2 Updates.

StepShot shall have no obligation to provide Updates, except that StepShot will provide Customer with any Update that it makes generally available without charge to its similar customers.

4. PROPRIETARY RIGHTS

4.1 Customer Data.

As between the parties, Customer shall own all Customer Data. StepShot shall not disclose to third parties or use any Customer Data except as reasonably necessary to provide the Service or to comply with any legal, regulatory or similar requirement or investigation. Notwithstanding the foregoing, you agree that StepShot and the service providers it utilizes to assist in providing the Service may use, modify, reproduce, distribute, display and disclose Customer Data solely to the extent necessary to provide the Service, including, without limitation, in response to your support requests. Customer agrees to indemnify and hold StepShot harmless from all claims, damages, liabilities, losses, costs and expenses (including attorneys’ fees) arising out of any use or disclosure of Customer Data in connection with the provision of Service or to comply with any legal, regulatory or similar requirement or investigation. Customer agrees to create archival copies or backup copies of all Customer Data.

4.2 Trademark.

Customer shall not alter, obscure or remove any printed or on-screen trademark, patent legend or other proprietary or legal notice.

5. CONFIDENTIALITY

5.1 Confidentiality.

Except for the specific rights granted by this Agreement, the receiving party shall not use or disclose any of the other’s Confidential Information without its written consent, and shall use reasonable care to protect the other’s Confidential Information, including ensuring that its employees and contractors with access (a) have a need to know for the purposes of this Agreement and (b) are bound by obligations of confidentiality at least as protective as those provided herein. Each party shall be responsible for any breach of confidentiality by its employees and contractors. Promptly after any termination of this Agreement (or at the disclosing party’s request at any other time), the receiving party shall return all of the other’s tangible Confidential Information, permanently erase all Confidential Information from any storage media and destroy all information, records and materials developed therefrom. Notwithstanding the foregoing, StepShot may retain and use Customer Data, as combined with other StepShot customers’ data, solely to improve and/or market the Service, even after termination of the provision of Service to You. Each party may disclose only the general nature, but not the specific terms, of this Agreement without the prior consent of the other party; provided, either party may provide a copy of this Agreement or otherwise disclose its terms in connection with any financing transaction or due diligence inquiry.

5.2 Compelled Disclosure.

Nothing herein shall prevent a receiving party from disclosing any Confidential Information as necessary pursuant to any court order, lawful requirement of a governmental agency or when disclosure is required by operation of law (including disclosures pursuant to any applicable securities laws and regulations); provided, that prior to any such disclosure, the receiving party shall use reasonable efforts to (a) promptly notify the disclosing party in writing of such requirement to disclose and (b) cooperate with the disclosing party in protecting against or minimizing any such disclosure or obtaining a protective order.

6. PAYMENTS

6.1 Fees.

Customer agrees to pay StepShot the fees, in the amounts and at the times specified in the selected Plan.

6.2 Credit Card Information.

In order to set up an account with StepShot, Customer must provide StepShot with accurate and complete billing information including legal name and a valid credit card unless the customer chooses to pay via a purchase order. Customer’s card will never be charged without its authorization. By submitting such credit card information, Customer gives StepShot permission to charge all fees incurred through its account to the designated credit card. StepShot reserves the right to terminate this Agreement in accordance with Section 9.2 hereto if Customer does not provide a valid credit card for the payment of fees hereunder.

6.3 Payment Terms.

The Service is billed in advance on a monthly basis and such monthly fees are non-refundable. For monthly payment plans, there will be no refunds or credits for partial months of service, upgrade/downgrade refunds, or refunds for months unused with an open account. For annual payment plans, upgrades/downgrades/cancellations will be prorated for the remainder of the term as calculated at the next billing date. For any upgrades or downgrade in connection with annual payment plans, Customer’s credit card will automatically be charged the new rate for the next billing cycle.

6.4 Taxes.

All payments are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments (including without limitation, sales taxes, use taxes and value added taxes), and Customer agrees to bear and be responsible for the payment of all such charges, excluding taxes based upon StepShots’s net income. All amounts due hereunder shall be grossed-up for any withholding taxes imposed by any foreign government.

7. LIMITED WARRANTY AND DISCLAIMERS

7.1 Limited Warranty.

StepShot warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof. Notwithstanding the foregoing, the Service may be temporarily unavailable, for example, when deemed reasonably necessary or prudent by StepShot to repair, maintain or upgrade the Service or for causes beyond StepShot’s reasonable control. StepShot will notify Customer at least 48 hours in advance of any known planned Service-related outages.

7.2 Disclaimers.

EXCEPT AS SPECIFICALLY PROVIDED HEREIN, THE SERVICE ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. StepShot DOES NOT WARRANT THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THEIR OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE. TO THE FULLEST EXTENT PERMITTED BY LAW, StepShot HEREBY DISCLAIMS (FOR ITSELF AND ITS SUPPLIERS) ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SERVICE INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.

8. LIMITATION OF LIABILITY

EXCEPT FOR DEATH, BODILY INJURY OR FRAUD, AMOUNTS OWED TO THIRD PARTIES PURSUANT TO THE INDEMNIFICATION OBLIGATIONS HEREIN, ANY BREACHES OF SECTION 2.5 (PROHIBITED USES) OR SECTION 6.1 (FEES), OR ANY EXCLUSION OR LIMITATION OF LIABILITY THAT IS VOID, PROHIBITED OR UNENFORCEABLE BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY (OR ITS SUPPLIERS) BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) MATTER BEYOND ITS REASONABLE CONTROL (INCLUDING ANY ERROR OR DAMAGE ATTRIBUTABLE TO ANY NETWORK OR SYSTEM), (B) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, (C) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS OR GOODWILL, OR (D) DIRECT DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE AMOUNTS PAID TO StepShot HEREUNDER WITH RESPECT TO THE SERVICE THAT GAVE RISE TO THE CLAIM DURING THE TWELVE-MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.

9. TERM AND TERMINATION

9.1 Term.

This Agreement shall commence on the date that this Agreement is accepted. For paid accounts user, this Agreement shall continue in effect for the initial term specified in the Plan (or if no such term is specified, then for 1 month), unless this Agreement is terminated earlier as permitted in Section 9.2. At the end of such initial term, the Agreement will be extended automatically for additional terms of 1 month each, unless this Agreement is terminated earlier as permitted in this Section 9.1 or in Section 9.2. Either party may elect not to have this Agreement extend automatically by giving written notice of such election to the other party at least 1 month prior to the end of the then current initial or renewal term. Customer is solely responsible for properly notifying StepShot of its election not to have this Agreement automatically renew by following the cancellation directions available in Customer’s StepShot account.

9.2 Termination of the Service.

This Agreement may be earlier terminated by either party, in whole or in part, (a) if the other party materially breaches a provision of this Agreement and fails to cure such breach within 10 days (5 days in the case of non-payment) after receiving written notice of such breach from the non-breaching party, or (b) immediately upon written notice, if the other party makes any assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of any or all of the other party’s property, or the other party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding or such a proceeding is instituted against the other party and is not dismissed within 90 days, or the other party becomes insolvent or, without a successor, dissolves, liquidates or otherwise fails to operate in the ordinary course.

9.3 Effects of Termination.

Upon any expiration or termination of this Agreement, all rights, obligations and licenses of the parties shall cease, except that (a) all obligations that accrued prior to the effective date of termination (including without limitation, all payment obligations) and remedies for breach of this Agreement shall survive, (b) StepShot may, but shall not be obligated to, delete archived Customer Data and (c) the provisions of Sections 4 (Proprietary Rights), 5 (Confidentiality), 6 (Payments) (only with respect to amounts incurred prior to the effective date of termination), 7.2 (Disclaimers), 8 (Limitation of Liability), 11 (General Provisions) and this Section 9.3 (Effects of Termination) shall survive.

10. GENERAL PROVISIONS

10.1 Entire Agreement.

This Agreement, together with StepShot’s privacy policy and the applicable Plan(s), constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties about the subject matter of this Agreement. In the event of any conflict or inconsistency between the Agreement and the Plan, the terms and conditions in the Plan will prevail and be controlling, and the terms and conditions in the Agreement will prevail and be controlling over terms set forth in Customer’s purchase order (or other similar document). Customer’s purchase order is only effective as its unqualified commitment to access and pay for the Service upon the terms (and only the terms) set forth herein. No waiver, consent or, except as expressly provided herein, modification of these Terms shall bind either party unless in writing and signed by the party against which enforcement is sought. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights. If any provision of this Agreement is determined to be illegal or unenforceable, 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. If this Agreement is required to be registered with any governmental authority, Customer shall cause such registration to be made and shall bear any expense or tax payable in respect thereof.

10.2 Arbitration.

At StepShot’s or your election, all disputes, claims, or controversies arising out of or relating to the Terms of Service (TOS) or the Service that are not resolved by mutual agreement may be resolved by binding arbitration to be conducted before The Estonian Court of Arbitration, or its successor. Unless otherwise agreed by the parties, arbitration will be held in Tallinn, Estonia before a single arbitrator mutually agreed upon by the parties, or if the parties cannot mutually agree, a single arbitrator appointed by The Estonian Court of Arbitration, and will be conducted in accordance with the rules and regulations promulgated by The Estonian Court of Arbitration unless specifically modified in the TOS. The arbitration must commence within forty­five (45) days of the date on which a written demand for arbitration is filed by either party. The arbitrator’s decision and award will be made and delivered within sixty (60) days of the conclusion of the arbitration and within six (6) months of the selection of the arbitrator. The arbitrator will not have the power to award damages in excess of the limitation on actual compensatory, direct damages set forth in the TOS and may not multiply actual damages or award punitive damages or any other damages that are specifically excluded under the TOS, and each party hereby irrevocably waives any claim to such damages. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. YOU AND COMPANY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Company agree otherwise in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitrator may, in his or her discretion, assess costs and expenses (including the reasonable legal fees and expenses of the prevailing party) against any party to a proceeding. Any party refusing to comply with an order of the arbitrators will be liable for costs and expenses, including attorneys’ fees, incurred by the other party in enforcing the award. Notwithstanding the foregoing, in the case of temporary or preliminary injunctive relief, any party may proceed in court without prior arbitration for the purpose of avoiding immediate and irreparable harm. The provisions of this arbitration section will be enforceable in any court of competent jurisdiction. Notwithstanding the provisions of the introductory section above, if StepShot changes this ‘Arbitration’ section after the date you first accepted these TOS (or accepted any subsequent changes to these TOS), you may reject any such change by sending us written notice within 30 days of the date such change became effective, as indicated in the “Date of Last Revision” date above or in the date of StepShot’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any dispute between you and StepShot in accordance with the provisions of this section as of the date you first accepted this TOS (or accepted any subsequent changes to this TOS).

10.3 Remedies.

Except as specifically provided otherwise, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity. Each party agrees that, in the event of any breach or threatened breach of Section 5, the non-breaching party may suffer irreparable damage for which it may have no adequate remedy at law. Accordingly, the non-breaching party shall be entitled to seek injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of posting any bond.

10.4 Notices.

Except as otherwise provided in Sections 9.1 and 10, any notice or communication hereunder shall be in writing and either personally delivered or sent recognized express delivery courier or certified or registered mail, prepaid and return receipt requested, addressed to the other party at its address specified in the Plan, or at such other address designated in a subsequent notice. All notices shall be in English, effective upon receipt.

10.5 Assignment.

This Agreement and the rights and obligations hereunder may not be assigned, in whole or in part, by either party without the other party’s written consent (which shall not be unreasonably withheld). However, without consent, either party may assign this Agreement to any successor to all or substantially all of its business which concerns this Agreement (whether by sale of assets or equity, merger, consolidation or otherwise). Any attempted transfer in violation hereof will be void and of no effect. This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties hereto.

10.6 Independent Contractors.

The parties shall be independent contractors under this Agreement, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint ventures or partners for any purpose.