Effective date: 1/06/2023
These Terms are in addition to any terms or agreements (including any such terms or agreements related to software-as-a-service subscriptions, APIs and other connectors, evaluation or trial use of products or non-disclosure agreements) you have in place with SetSail (“Separate Terms”).
PLEASE READ: THESE TERMS ALSO INCLUDE A MANDATORY ARBITRATION AGREEMENT. PLEASE REVIEW THE ARBITRATION AGREEMENT SET FORTH BELOW CAREFULLY, AS IT WILL REQUIRE YOU TO RESOLVE ALL DISPUTES WITH SETSAIL ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION, AND REQUIRE YOU TO FOREGO JURY TRIALS, CLASS ACTIONS, AND ALL OTHER TYPES OF COURT PROCEEDINGS OF ANY KIND, UNLESS YOU OPT-OUT BY FOLLOWING THE OPT-OUT PROCEDURES BELOW. BY ENTERING INTO THESE TERMS, YOU EXPRESSLY ACKNOWLEDGE THAT YOU UNDERSTAND AND AGREE TO THE MANDATORY ARBITRATION AGREEMENT.
Any scores, assessments or reports, including all information and analyses contained therein, provided by SetSail to you pursuant to the CRM Health Grader Tool (your “CRM Health Grade” or “Reports”) are prepared exclusively for the benefit of your entity or organization for the internal business purpose of evaluating your entity’s or organizaton’s Customer Relationship Management (“CRM”) Software Readiness. The Reports and any other information provided in connection with the Reports are taken from, or based upon, information obtained from you or provided on your behalf from third parties, the completeness and accuracy of which has not been independently verified, and cannot be assured by SetSail. The Reports and the information contained therein are based on SetSail’s internal calculations, data and information and do not guarantee your actual CRM Readiness or actual savings or increased earnings and only reflect SetSail’s views as of the date SetSail provides the Reports to you, all of which are subject to change. SetSail does not guarantee the accuracy of the Reports and SetSail hereby expressly disclaims any and all liability arising out of the Reports.
- RESTRICTIONS AND RESPONSIBILITIES
1.1 General Restrictions. You must be at least 16 years old to use our Website. We do not knowingly collect or solicit personally identifiable information from individuals under 16. If you are under 16, please do not attempt to use the Website or send any personal information about yourself to us. If we learn we have collected personal information from an individual under 16, we will delete that information as quickly as possible. You will comply with all applicable laws, rules and regulations in connection with your use of the Website. You will not violate or attempt to violate the security of the Website or SetSail’s systems or network security, including, without limitation by (a) accessing data not intended for users of the Website or gaining unauthorized access to an account, server or any other computer system; (b) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures; (c) attempting to interfere with the function of the Website, host or network; (d) aggregating, copying or duplicating any of the materials or information available from the Website except for the small amount of materials and information temporarily required for use of the Website as intended; (e) accessing the Website for the purpose of competing with SetSail or using the Website for purposes of benchmarking or other similar purposes; (f) using the Website in any manner that could disable, overburden, damage, or impair the site or interfere with any other party’s user of the Website; (g) using the Website in any manner that may violate applicable laws, rules or regulations, or (h) attacking the Website via a denial-of-service attack or a distributed denial-of-service attack. You may not “crawl,” “scrape,” or “spider” any portion of the Website (through use of manual or automated means).
1.2 User Content Responsibilities and Restrictions.
- You shall be solely responsible for all activity associated with your use of the Website, including any data, text, links, media or other content that you submit to the Website or otherwise provide to SetSail, including through the CRM Health Grader Tool, through SetSail’s “Contact Us” form, or by emailing SetSail (collectively, the “User Content”).
- You represent and warrant that you have all necessary rights to the User Content that you provide to us, and if applicable, that all User Content that you may submit to the Website is your wholly original material (except for material that you are using with the permission of its owner), and does not infringe or violate any copyright, trademark or other rights of any third-party including any rights of privacy or publicity.
- You represent and warrant that the User Content does not contain any defamatory statements or contravene any contract, agreement or other arrangement nor the laws, rules or regulations of any applicable jurisdiction.
- You shall not engage in any spamming or excessive communications, or submit User Content that is disruptive, off-topic, deliberately intended to have a negative impact on the Website or otherwise interfere with the ability of others to enjoy or comfortably use the Website.
- You shall not submit User Content that is false, inaccurate, hateful, threatening, pornographic, profane, obscene, abusive, unlawful, harassing, hateful, racially or ethnically offensive, libelous or defamatory, or any content that encourages unlawful conduct or misleads others regarding the origin of the User Content.
- You shall not attempt to impersonate another person, including any public figure, or SetSail employee.
- You shall not use the Website in a manner that “crawls,” “scrapes,” or “spiders” any page, data, or portion of or relating to the Website (through use of manual or automated means).
- You shall not transmit worms, viruses or any code of a destructive nature.
1.3 Remedies. Any use of the Website in violation of the foregoing violates these Terms and may result in, among other things, termination or suspension of your rights to use the Website and other SetSail services. SetSail reserves the right to terminate or suspend your rights to use the Website for any reason. SetSail also reserves the right to bring legal action against you for any loss or damage that it may suffer as a result of your violation of the Terms.
- INTELLECTUAL PROPERTY RIGHTS
3.1 SetSail Intellectual Property. The copyrights and other intellectual property in or available through the Website, including the Reports themselves, are owned by SetSail, its independent contractors, and its licensors (except with respect to the Reports, to the extent the Report contains any confidential or identifiable information of you or your entity or organization). Subject to your compliance with these Terms, including Section 1 above, you are authorized to view, store, print, reproduce, copy, and distribute any pages, including the Reports, within the Website for non-commercial use within your organization only. All other rights are reserved. You may print off pages of the Reports or the Website; however if you do so, you agree that you do not acquire any ownership rights in any of that material. This right is non-transferable and non-sublicensable. You may not copy, distribute, transmit, publish, sell, transfer, create derivative works of, or otherwise exploit any such material that you print off except for distribution within your organization. In consideration of this authorization, you agree that (a) any copy of any materials that you make shall retain all copyright and other proprietary notices originally contained in such materials and (b) these Terms are included with any distribution within your organization. Except as expressly provided in these Terms, any reproduction, display or other dissemination of information or content contained in the Reports or this Website is strictly prohibited and constitutes copyright infringement.
4. CRM HEALTH GRADER TOOL
- THIRD PARTY WEBSITES
SetSail has the right at any time and without prior notice to terminate or suspend your access to the Website for any reason. SetSail will attempt to provide notice where possible of any such action but reserve the right to do so without notice. SetSail also reserves the right to bring legal action against you for any loss or damage that it may suffer as a result of your violation of the Terms.
You shall indemnify, defend and hold harmless SetSail and each of its officers, directors, members, employees, agents, representatives, partners, and licensors (collectively, the “SetSail Indemnitees”) from any and all third party claims, liability, damages and/or costs (including attorneys’ fees) arising from or related to (i) any User Content, (ii) your use of the Website, (iii) your violation of these Terms, or (iv) any infringement or misappropriation of any intellectual property right or other right of any person or entity by you. You agree to immediately notify SetSail of any unauthorized use of your user account or any other breach of security known to you that may affect the security of the Website.
- DISCLAIMERS; LIMITATIONS ON LIABILITY; TIME TO FILE CLAIMS
8.1 Warranty Disclaimers. SetSail provides information through this Website (including the Reports). While SetSail has undertaken efforts to provide accurate information, it is not comprehensive and SetSail makes no commitment to update the information at any particular time, and the information on the Website (including in the Reports) may be out of date. All information, contents, or links on the Website may also be changed at any time without notice. As a result, the information may not be accurate, up to date or applicable to the circumstances of any particular case. Any decisions you make based on information contained in this Website or the Reports are solely your responsibility.
THE WEBSITE AND THE REPORTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITH NO COMMITMENT TO ANY FUTURE FUNCTIONALITY OR FEATURES. YOU ACKNOWLEDGE THAT YOUR USE OF THE WEBSITE OR THE REPORTS IS AT YOUR OWN RISK. THE WEBSITE AND THE REPORTS ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, SETSAIL AND THE SETSAIL INDEMNITEES DO NOT WARRANT THAT THE CONTENT OF THE WEBSITE OR THE REPORTS IS ACCURATE, RELIABLE OR CORRECT; THAT THE WEBSITE OR THE REPORTS WILL MEET YOUR REQUIREMENTS; THAT THE WEBSITE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE WEBSITE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOUR SOLE REMEDY IN THE EVENT OF ANY DEFICIENCY, ERROR, OR INACCURACY IN THE WEBSITE OR THE REPORTS SHALL BE TO REQUEST THAT SETSAIL CORRECT THE MATTER OR, IF SETSAIL FAILS TO DO SO, TO DISCONTINUE YOUR USE OF THE WEBSITE OR THE REPORT. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE WEBSITE (INCLUDING THE REPORTS) IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER OR DEVICE, OR FOR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD. SETSAIL DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE WEBSITE, OR ANY HYPERLINKED WEBSITE OR SERVICE, OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND SETSAIL WILL NOT BE A PARTY TO AND IS NOT RESPONSIBLE IN ANY WAY FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES, INCLUDING ANY INDEPENDENT CONTRACTOR PROVIDING THE SERVICES. The Reports provided herein are based on SetSail’s internal calculations, data and information and do not guarantee your entity’s or organization’s actual CRM Readiness or actual savings or increased earnings. The Reports are subject to many factors, including without limitation, the accuracy of the information you provide or was provided on your behalf and the accuracy of the information provided to SetSail by third parties. The Reports do not incorporate any special circumstances that may be applicable to your entity or organization. You agree that your and your entity’s reliance on this Website and any Reports, including any materials or information or estimates, provided on this Website is solely at your and your entity’s own risk and you and your entity shall be solely responsible for any damages that may arise or that you or your entity may incur and you and your entity hereby release SetSail from any and all such damages.
8.2. Limitations of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SETSAIL SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFITS OR REVENUES, WHETHER INCURRED DIRECTLY OR INDIRECTLY, OR ANY LOSS OF DATA, USE, GOODWILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM (A) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE WEBSITE OR THE REPORTS; OR (B) ANY CONTENT OR REPORTS OBTAINED FROM THE WEBSITE. YOU ASSUME TOTAL RESPONSIBILITY FOR YOUR USE OF THE WEBSITE AND THE REPORTS. YOUR ONLY REMEDY AGAINST SETSAIL OR THE SETSAIL INDEMNITEES IN CONNECTION WITH ANY DAMAGES ARISING FROM THE FOREGOING IS TO STOP USING THE WEBSITE OR THE REPORTS. IN NO EVENT WILL THE TOTAL LIABILITY OF ANY SETSAIL PARTY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE OR OTHERWISE) ARISING FROM OR RELATED TO THE TERMS, THE REPORTS, AND/OR YOUR USE OF THE WEBSITE, EXCEED, IN THE AGGREGATE, $100.00.
Some states do not allow the exclusion or limitation of incidental or consequential damages so the above limitations or exclusions may not apply to you. If any applicable authority holds any portion of this section to be unenforceable, then liability will be limited to the fullest extent permitted by applicable law. Nothing in these Terms purports to limit liability or alter your rights as a consumer that cannot be excluded or waived under applicable law.
8.3 Time to File Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OR THE WEBSITE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
- CONTROLLING LAW; VENUE
These Terms and any action related to the access or use of the Website will be governed by the laws of the State of California without regard to or application of its conflict of law provisions or your state or country of residence. Except as otherwise set forth in the Arbitration Agreement below, the exclusive jurisdiction for all Disputes (defined below) that you and SetSail are not required to arbitrate will be the state and federal courts located in San Francisco, California. You and SetSail each agree to waive any objection to jurisdiction and venue in such courts.
We reserve the right, in our sole discretion, to modify these Terms at any time. Modified Terms are effective as soon as they are posted. We also reserve the right to waive or modify any of these Terms as they apply to a specific posting or member without affecting the application of these Terms to all other postings and members. Your continued use of the Website, or any materials or services accessible through it, after modified Terms are posted means you accept the modifications
11. ARBITRATION AGREEMENT; DISPUTE RESOLUTION AND CHOICE OF LAW
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHT TO FILE A LAWSUIT IN COURT.
Mandatory Binding Arbitration: By agreeing to these Terms, you agree that any dispute, claim or controversy arising out of or relating to the Website or these Terms, or the breach, termination, enforcement, interpretation or validity thereof, or the use of the Website (collectively “Disputes”) will be resolved solely by binding, individual arbitration and not in a court of law in any jurisdiction and not in a class, representative or consolidated action or proceeding, as set forth further below. Disputes does not include any disputes, claims or controversies arising out of your use of products or services that are the subject of Separate Terms.
This section is intended to be interpreted broadly and governs any and all Disputes between you and SetSail, including but not limited to, claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; claims that arose before these Terms or any prior agreement (including, but not limited to, advertising); and claims that may arise after the termination of these Terms but are related to these Terms or the use of the Website. The only disputes excluded from this broad prohibition are the litigation of certain intellectual property and claims that may be adjudicated in small claims court, as provided below.
You and SetSail agree to resolve any and all Disputes as follows:
The arbitration will be administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules (https://www.adr.org/Rules), Consumer Arbitration Rules (https://www.adr.org/sites/default/files/Consumer%20Rules.pdf) as applicable, and any supplementary rules then in effect (“AAA Rules”), excluding any rules or procedures governing or permitting class actions or class arbitrations and except as modified by this Arbitration Agreement. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of these Terms, including but not limited to any claim that all or any part of these Terms is void or voidable, whether a claim is subject to arbitration, or the question of waiver by litigation conduct. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator's award shall be written and shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. You may initiate an arbitration by calling 800-778-7879 or visiting https://www.adr.org/ContactUs.
Payment of all filing, administration, and arbitrator fees will be governed by AAA’s applicable rules. To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, SetSail will pay the additional cost. We will also reimburse fees invoiced by AAA, including filing fees and arbitrator and hearing expenses, for claims totaling less than $10,000. For claims at or above $10,000, if the arbitrator finds the arbitration to be non-frivolous, SetSail will pay the fees invoiced by AAA, including filing fees and arbitrator and hearing expenses.
If you are a resident of the United States, arbitration may take place in the county where you reside at the time of filing or in San Francisco, California. For individuals residing outside the United States, arbitration shall be initiated in San Francisco County in the state of California, United States of America, and you and SetSail agree to submit to the personal jurisdiction of any federal or state court in San Francisco, California in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
Class Action Waiver: You and SetSail agree that each party is waiving the right to a trial by jury or to participate in any purported class, collective, consolidated, or representative proceeding, including in arbitration. The parties may bring claims against the other only in their individual capacities, and not as a plaintiff or a class member in any purported class, collective, consolidated, or representative proceeding. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes on a class basis.
Exception - Litigation of Intellectual Property and Small Claims Court Claims: Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring enforcement actions, validity determinations or claims arising from or relating to theft, piracy or unauthorized use of technology or intellectual property in state or federal court or in the U.S. Patent and Trademark Office to protect its intellectual property rights ("intellectual property rights" means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also seek relief in a small claims court for disputes or claims within the scope of that court's jurisdiction.
30-Day Right to Opt Out: You have the right to opt out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of your decision to opt out (“Opt-Out Notice”) (1) by email to firstname.lastname@example.org with the subject line, “MANDATORY ARBITRATION AND CLASS ACTION WAIVER OPT-OUT” or (2) by mail at SetSail Technologies, Inc., 548 Market Street, Suite 55554, San Francisco, CA 94104-5401 - ATTN: Legal Department. The Opt-Out Notice must be sent within thirty (30) days of (a) the Effective Date of these Terms; or (b) the first date that you used the site that contained any versions of the Terms that included this version of the mandatory arbitration and class action waiver, whichever is later. Otherwise, you shall be bound to arbitrate disputes in accordance with the terms of those paragraphs. To be effective, all Opt-Out Notices must contain your full name, address, and signature. If you opt out of these arbitration and class action waiver provisions, SetSail also will not be bound by them, but all other terms of the Agreement will continue to apply. Opting out of the arbitration and class action waiver provisions has no effect on any previous, other, or future arbitration agreements that you may enter with us.
You agree that any Dispute between you and SetSail shall be governed by the laws of the United States and the State of California, without regard to their conflict of laws provisions.
Changes to Arbitration Agreement or Class Action Waiver: If we change this Arbitration Agreement or class action waiver provision after the date you first agreed to the Terms or to any subsequent changes to the Terms, you may reject any such change by providing us with written notice of such rejection within thirty (30) days of the date such change becomes effective. Your written notice must be sent (1) by email to email@example.com or (2) by mail at SetSail Technologies, Inc., 548 Market Street, Suite 55554, San Francisco, CA 94104-5401 - ATTN: Legal Department.
If for any reason a court of competent jurisdiction finds any provision of these Terms or portion thereof to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to effect the intent of these Terms, and the remainder of these Terms shall continue in full force and effect. No waiver by SetSail of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default.
Nothing in these Terms is intended to or shall be deemed to create a joint venture of any kind or for any purpose. You and SetSail shall be and remain independent contractors at all times. Neither party shall have any authority to, nor shall attempt to, bind or commit the other party for any purpose. The headings used in these Terms are for convenience only and have no legal meaning or effect. Unless the context clearly indicates to the contrary, in these Terms (a) the plural includes the singular and the singular includes the plural; (b) “and” and “or” are each used both conjunctively and disjunctively; (c) “any,” “all,” “each,” or “every” means “any and all,” and “each and every”; (d) “includes” and “including” are each “without limitation”; (e) “herein,” “hereof,” “hereunder” and other similar compounds of the word “here” refer to these Terms as a whole and not to any particular paragraph, subparagraph, section or subsection; and (f) all pronouns and any variations thereof shall be deemed to refer to the masculine, feminine, neuter, singular or plural as the identity of the entities or persons referred to may require.
Other than the SetSail Indemnitees, no other person or entity will be third-party beneficiaries to the Terms.
If you have any questions or concerns regarding our privacy policies, please send us a detailed message to firstname.lastname@example.org and we will try to resolve your concerns.