The following Terms of Service, hereafter referred to as (the “TOS”) describes the terms and conditions you agree to in order to access and use the online software Who’s Up from the website www.whosupnow.com, hereafter referred to as (the “Service”). The Service is provided by PERQ Software, LLC., a registered Limited Liability Corporation in the state of Indiana, hereafter referred to as (“PERQ”).
BY ACCESSING AND USING THE SERVICE, YOU ACKNOWLEDGE ALL OF THE FOLLOWING:
YOU HAVE READ THIS TOS
YOU UNDERSTAND THE TERMS AND CONDITIONS OF THIS TOS
YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS TOS
THE TERMS AND CONDITIONS OF THIS TOS ALONG WITH THE DISCLAIMERS OF WARRANTIES AND LIMITATIONS OF LIABILITY PROVISIONS ESTABLISHED HEREIN, TO THE EXTENT LEGALLY APPLICABLE IN YOUR JURISDICTION, SPELL OUT A MUTUALLY AGREED UPON ACCEPTANCE AND ALLOCATION OF RISK WHICH ESTABLISHES A FUNDAMENTAL PART OF THE BASIS OF THE BARGAIN HEREUNDER, WITHOUT WHICH PERQ WOULD NOT HAVE AGREED TO PROVIDE THE SERVICE.
1. Establishment of your Account and Acceptable Use
1.1 In establishing your account, you will provide accurate, truthful, and complete registration information at the time you register to use the Service. You are responsible for the security of the credentials used to access your account and will strive to keep your password safe and secure. In the event that your password is stolen or compromised and unauthorized access to your account occurs, you agree to notify PERQ immediately.
1.2 Your use of the Service must be in compliance with all applicable laws, regulations and/or ordinances. Use of the Service for any unlawful purpose is strictly forbidden and is grounds for immediate termination of this agreement and access to the Service.
1.3 You agree that your decision to purchase and use the Service was based solely on the features currently present in the Service and was not contingent on the development and release of any additional functionality or features not currently provided as part of the Service.
1.4 You agree to only access the Service using either the provided web interface or via authorized and published APIs. You agree not to create any automated scripts, programs or bots that access data from, or perform actions on the Service. Accessing the System in any way that places an undue burden on servers is ground for immediate termination of this agreement and access to the Service.
1.5 You agree that any and all information (such as data, written text, audio files, photographs, video, or images) which you enter, upload, or import into the Service, hereafter referred to as (the “Content”), is your sole responsibility. Any such Content must not contain or include (a) any copyrighted material for which you do not have the rights to use, (b) any images, text or other data that, at the sole discretion of PERQ, is considered pornographic, disparaging toward minorities, or generally offensive to the public. PERQ reserves the right (but shall have no obligation) to remove any or all Content from the Service. You agree to immediately take down any Content that at the sole discretion of PERQ, violates this section (1.5). In the event that you elect not to comply with a request from ZentrueTech to take down certain Content, PERQ reserves the right to directly take down such Content or to disable access to the Service.
1.6 You agree that your use of the Service will be in compliance with all federal CAN-SPAM laws and regulations. You further agree and acknowledge that the Service is not intended to be a mass-marketing service and that you will have obtained permission from all contacts entered in to the Service before sending any emails to them.
1.7 You agree that PERQ has no responsibility or liability for the deletion or failure to store any Content and other communications maintained or transmitted through use of the Service. You further acknowledge that you are solely responsible for securing and backing up data entered or imported into the Service.
1.8 You agree that you are solely responsible for (and that PERQ has no responsibility to you or to any third party for) the Content that you create, transmit or display while using the Service and for the consequences of your actions (including any loss or damage which PERQ may suffer) by doing so.
1.9 You agree that if you are provided free trial access to the Service for a limited period of time (the Trail Period), you are bound by all the terms and conditions of this TOS during the Trial Period, except for section 3 (Payment of Fees for Use of the Service).
2.1 There are inherent security risks associated with using SaaS services such as Who’s Up. Nefarious individuals exist who will employ extraordinary means to gain unauthorized access to information. PERQ employs reasonable measures that are common and appropriate in the industry to keep data safe and private. In the event we become aware of a security breach that results in the theft of your data, we will a) take appropriate steps to secure the breach and b) we will notify you of the specific details. Pursuant to section 9 of this TOS, by using the Service, you acknowledge and accept these inherent risks and agree that PERQ and its members, officers, agents, employees, suppliers or partners will have no liability in the event of a breach.
2.2 The Who’s Up Service utilizes a technology stack that includes the Heroku Platform as a Service (www.heroku.com). The application logic of the Service along with all data, including but not limited to sales data, store traffic data, names of employees, usernames, and passwords are under the control of, and thus accessible by, Heroku.
3. Payment of Fees for Use of the Service
3.1 By using the Service, you agree to pay the fees associated with the number of stores using the features of the Service in accordance with the published fees at (https://www.whosupnow.com/pricing.html). Payments can be made for up to one year of service in advanced by company check or other certified funds. Payments can be made by credit card on a monthly basis. Charges are based on the published Who’s Up Service pricing located at (https://www.whosupnow.com/pricing.html). To the fullest extent permitted by law, refunds (if any) are at the discretion of PERQ and only in the form of credit for the Service. Nothing in this TOS obligates PERQ to extend credit to any party. You acknowledge and agree that any credit card and related billing an payment information that you provide to ZentrureTech may be shared by ZentrueTech with companies who work on PERQ’s behalf, such as payment processors and/or credit agencies, solely for the purposes of checking credit, effecting payment to PERQ, and servicing your account. PERQ may also provide information in response to valid legal process, such as subpoenas, search warrants and court orders, or to establish or exercise its legal rights or defend against legal claims. PERQ shall not be liable for any use or disclosure of such information by such third parties. PERQ reserves the right to terminate the Service to you for any late payments.
3.2 You acknowledge and agree that pricing of the Service is based on the number of stores and users utilizing the features of the Service and that you will pay the monthly fees for any and all stores utilizing any of the features of the Service. You further agree and acknowledge that it is a violation this TOS for multiple stores to share the features of the Service without paying for each store and user.
3.3 ZentreTech may change its fees and payment policies for the Service by notifying you at least fifteen (15) days before the beginning of the billing cycle in which such change will take effect. Changes to the fees or payment policies will be posted on the website (or such other URL PERQ may provide from time to time). Any outstanding balance becomes immediately due and payable upon termination of the TOS for any reason.
4. Proprietary Rights
4.1 You acknowledge and agree that PERQ owns all legal right, title and interest in and to the Service, including any intellectual property rights which subsist in the Service (whether those rights happen to be registered or not, and wherever in the world those rights may exist).
4.2 PERQ acknowledges and agrees that it obtains no right, title or interest from you (or your licensors) under this TOS in or to any Content that you create, submit, post, import or display on, or through, the Service, including any intellectual property rights which subsist in that Content (whether those rights happen to be registered or not, and wherever in the world those rights may exist).
5. License from PERQ and Restrictions
5.1 PERQ gives you a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the software provided to you by PERQ as part of the Service. This license is for the sole purpose of enabling you to use and enjoy the benefit of the Service as provided by PERQ, in the manner permitted by the TOS.
5.2 You may not (and you may not permit anyone else to): copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the Who’s Up Service or any part thereof.
5.3 You may not (and you may not permit anyone else to): access the Service for the purpose of gaining access to, and/or knowledge of the intellectual property of PERQ LLC, including but not limited to, features, screen designs, work-flows, database fields, etc., with the intent of creating a competing or non-competing product or service. You further acknowledge and accept that you are responsible for the actions and behavior with respect to this agreement, of any person you provide access to, and/or authorize access to the Service. To restate another way, you agree that you will not (and you will not permit anyone else to): access to the Service in order to gain knowledge that would allow you, or anyone else, to produce a software product containing any of the featuers of the Service, regardless of whether the software competes with the Service.
6. Modification and Termination of the Service
6.1 PERQ is constantly making changes and improvements to the Service in order to provide the best possible experience for its customers. You acknowledge and agree that the specific feature set included as part of the Service which PERQ provides may change from time to time without prior notice to you. Examples of changes to the feature set of the Service include without limitation changes to the fee and payment policies, security patches, added functionality, and other enhancements.
6.2 You may terminate this TOS at any time by canceling your account on the Who’s Up Service. You will not receive any refunds if you cancel your account.
6.3 You agree that PERQ, it its sole discretion and for any or no reason, may terminate your account or any part thereof. You agree that any termination of your access to the Service may be without prior notice, and you agree that PERQ will not be liable to you or any third party for such termination.
6.4 You are solely responsible for exporting your Content from the Service prior to termination of your account for any reason, provided that if we terminate your account, we will provide you a reasonable opportunity to retrieve your Content.
6.5 Upon any termination of the Service or your account this TOS will also terminate, but sections 4.1, 5.2, 5.3, 7, 8, 9, and 12 shall continue to be effective after the TOS is terminated.
7. EXCLUSION OF WARRANTIES
7.1 NOTHING IN THIS TOS, INCLUDING SECTIONS 7 AND 8, SHALL EXCLUDE OR LIMIT PERQ’S WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW.
7.2 YOU EXPRESSLY UNDERSAND AND AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK AND THAT THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE.”
7.3 PERQ MAKES NO EXPRESS WARRANTIES AND DISCLAIM ALL IMPLIED WARRANTIES REGARDING THE SERVICE, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FORGOING, PERQ DOES NOT REPRESENT OR WARRANT TO YOU THAT: (A) YOUR USE OF THE SERVICE WILL MEET YOUR REQUIREMENTS, (B) YOUR USE OF THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED THROUGH THE SERVICE WILL BE ACCURATE.
8. LIMITATION OF LIABILITY
8.1 SUBJECT TO SECTION 7.1 ABOVE, YOU EXPRESSLY UNDERSTAND AND AGREE THAT PERQ SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY YOU, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY. THIS SHALL INCLUDE, BUT NOT BE LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS.
8.2 THE LIMITATIONS ON PERQ’S LIABILITY TO YOU IN PARAGRAPH 8.1 ABOVE SHALL APPLY WHETHER OR NOT PERQ HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
9.1 You agree to hold harmless and indemnify PERQ and its officers, agent, employees, suppliers or partners (collectively “PERQ and Partners”) from and against any third party claim arising from or in any way related to (a) your breach of the TOS, (b) your use of the Service, (c) your violation of applicable laws, rules or regulations in connection with the Service, or (d) your Content, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys’ fees, of every kind and nature. In such a case, PERQ will provide you with written notice of such claim, suit or action.
10. Other Websites & Applications
10.1 The Service may include hyperlinks or integrations to other websites, content, resources, or applications. PERQ has no control over third party websites and resources which are provided by companies or persons other than PERQ.
10.2 You acknowledge and agree that PERQ is not responsible for the availability of any such external sites, resources, or applications, and does not endorse any advertising, products or other materials on or available from such web sites or resources.
10.3 You acknowledge and agree that PERQ is not liable for any loss or damage which may be incurred by you as a result of the availability of those external sites or resources, or as a result of any reliance placed by you on the completeness, accuracy or existence of any advertising, products or other materials on, or available from, such web sites or resources.
11. Changes to the TOS
11.1 PERQ may make changes to the TOS from time to time. If we change the TOS in any substantive way, we will give you at least seven (7) days notice before the changes take effect, during which period of time you may reject the changes by terminating your account.
11.2 You understand and agree that if you use the Service after the date on which the new TOS takes effect, PERQ will treat your use as acceptance of the updated TOS.
12.1 The TOS constitutes the whole legal agreement between you and PERQ and govern your use of the Service (but excluding any services which PERQ may provide to you under a separate written agreement), and completely replace any prior agreements between you and PERQ in relation to the Service.
12.2 There are no third party beneficiaries to this TOS. The parties are independent contractors, and nothing in this TOS creates an agency, partnership or joint venture.
12.3 You agree that PERQ may provide you with notices, including those regarding changes to the TOS, by email, regular mail, or postings on the Service. By providing PERQ your email address, you consent to our using the email address to send you any notices required by law in lieu of communication by postal mail.
12.4 You agree that if PERQ does not exercise or enforce any legal right or remedy which is contained in the TOS (or which PERQ has the benefit of under any applicable law), this will not be taken to be a formal waiver or PERQ’s rights and those rights or remedies will still be available to PERQ.
12.5 PERQ shall not be liable for failing or delaying performance of its obligations resulting from any condition beyond its reasonable control, including but not limited to, governmental action, acts of terrorism, earthquake, fire, flood or other extraordinary environmental events, labor conditions, power failures, and Internet disturbances.
12.6 The TOS, and your relationship with PERQ under the TOS, shall be governed by the laws of the State of Oklahoma. You and PERQ agree to submit to the exclusive jurisdiction of the courts located within the county of Oklahoma, Oklahoma to resolve any legal matter arising from the TOS.
12.7 Neither party may assign any of its rights or obligations under the TOS, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign the entirety of its rights and obligations under the TOS, without consent of the other party, to its affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of your use of the Service upon written notice to the assigning party.