PLEASE READ THE FOLLOWING TERMS CAREFULLY.
BY USING THE SERVICE GOVERNED BY THE SEPARATE AGREEMENT BETWEEN YOU AND SAY, YOU AGREE TO THESE ADDITIONAL TERMS RELATED TO THAT USE (THESE "ADDITIONAL TERMS"). IF YOU DO NOT AGREE TO THESE ADDITIONAL TERMS, THEN YOU DO NOT HAVE OUR PERMISSION TO USE THE SERVICE. ANY UPDATE TO THESE ADDITIONAL TERMS WILL BE POSTED ON OUR WEBSITE HERE. YOUR USE OF THE SERVICE, AND SAY’S PROVISION OF THE SERVICE TO YOU, CONSTITUTES AN AGREEMENT BY SAY AND BY YOU TO BE BOUND BY THESE ADDITIONAL TERMS AND ANY FUTURE UPDATES TO THESE ADDITIONAL TERMS.
1. Say Service Overview.
Services We work with data providers and others ("Partners") to provide the Service.
2. Additional License Restrictions.
Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (i) attempt to reverse engineer (except as permitted by law), decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Service; (ii) modify, translate, or create derivative works based on the Service; (iii) make the Service or information and data of your end users (such businesses and consumers, the “End Users”) provided to you via the Service (such information and data, the “Output”) (or any derivative work thereof) available to, or use the Service or Output (or any derivative work thereof) for the benefit of, anyone other than you and the End Users; (iv) sell, resell, license, sublicense, distribute, rent or lease any portion of the Service or Output to any third-party, or include any portion of the Service or Output (or any derivative work thereof) in a service bureau, time-sharing, or equivalent offering; (v) publicly disseminate information from any source regarding the performance of the Service or Output; or (vi) attempt to create a substitute or similar service through use of, or access to, the Service or Output. Notwithstanding anything to the contrary, you accept and assume all responsibility for complying with all applicable laws and regulations in connection with all of your activities involving any Service, Output, or End User data. You acknowledge and agree that Say nor any of Say’s data providers are a “consumer reporting agency” nor a “furnisher” of information to consumer reporting agencies under the Fair Credit Reporting Act (“FCRA”) and the Output is not a “consumer report” under the FCRA and cannot be used as or in such. You represent and warrant that you will not, and will not permit or enable any third-party to, use the Service (including Output) as a or as part of a “consumer report” as that term is defined in the FCRA or otherwise use the Service (including Output) such that the Service (including Output) would be deemed “consumer reports” under the FCRA. Notwithstanding anything to the contrary, you will be bound by and will only use the Service or Output in compliance with the terms and conditions set forth herein.
3. Confidentiality, Privacy, Security Breach, Oversight and Cooperation.
a. If Say or any of its Partners discloses any confidential or proprietary information or materials, such information and materials shall be subject to the same confidentiality provisions of any agreement between you and us, which shall in no event by less protective of such information and materials than a reasonable standard of care.
b. Privacy and Authorizations. You warrant and will ensure that you provide all notices and obtains all consents required under applicable law to enable us and our Partners to process End User data in accordance with applicable privacy policies. You will not (i) make representations or other statements with respect to End User data that are contrary to or otherwise inconsistent with such privacy policies or (ii) interfere with any independent efforts by any of our Partners to provide End User notice or obtain End User consent. The consents will be clear and conspicuous and will generally specify the categories of data that You will receive and how You will use, store and otherwise process it, in addition to any other required disclosures under applicable laws. You will maintain records (which may include technical logs, screenshots, versions of the applicable consents obtained) and will promptly provide such records to Say or its Partners upon request. You will only access the applicable data for which you have obtained the proper consents. You will use, store and otherwise process Say data or our Partners data solely in accordance with any applicable consents and applicable laws.
c. You will not disclose, transfer, syndicate or distribute Say data or any Partner data to any third party (“Data Sharing”) except in each case with any applicable consents and in accordance with applicable laws. Notwithstanding anything to the contrary, You will not sell any Say data or any Partner data obtained hereunder. You will promptly delete any Say data upon request by the applicable End User; provided that You may retain copies of such data solely to the extent required by applicable laws. You will not charge any End Users any fees for access to Say’s or Say’s Partner’s data.
d. Security Breach. You shall promptly notify Say (and in no event after more than 12 hours) upon becoming aware of any Security Breach, providing a description of all known facts, the types of End Users affected if known, and any other information that Say may reasonably request on behalf of you. You shall reasonably cooperate with Say or any of its Partners in investigating and remediating Security Breaches. You shall be responsible for the costs of investigating, mitigating, and remediating the Security Breach, including costs of credit monitoring, call centers, support, and other customary or legally required remediation. “Security Breach” means any event that compromises your systems or that does or reasonably could compromises the security, integrity or confidentiality of Say data or any Partner data or resulting in its unauthorized use, disclosure or loss.
4. Prohibited Conduct.
BY USING THE SERVICE YOU AGREE NOT TO:
a. publicize your receipt of the data received through the Service.
b. use the Service or any information provided by us or available on the Service for any illegal purpose or in violation of any securities laws or regulations or any local, state, national, or international law;
c. violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right;
d. interfere with security-related features of the Service, including by: (i) disabling or circumventing features that prevent or limit use or copying of any content; or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law;
e. interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another user of the Service; (iii) collecting personal information about another user or third party without consent; or (iv) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service;
f. perform any fraudulent activity including impersonating any person or entity, or claiming a false affiliation, or using any other access credentials without permission;
g. sell or otherwise transfer the access granted to you; or
h. attempt to do any of the acts described in this Section or assist or permit any person in engaging in any of the acts described in this Section.
5. Information Security Program. You will maintain a comprehensive written information security program approved by your senior management (“Infosec Program”). The Infosec Program will include administrative, technical and physical measures designed to: (a) ensure the security of all data, (b) protect against unauthorized access to or use of any data and anticipated threats and hazards to such data and (c) ensure the proper disposal of such data. The Infosec Program will be appropriate to your risk profile and activities and the nature of the data received by you. In any event, the Infosec Program will meet or exceed applicable control objectives captured in industry standards and best practices such as AICPA Trust Service Criteria for Security, NIST 800-53, or ISO 27002 and will comply with applicable laws. You will use up-to-date antivirus software and anti-malware tools designed to prevent viruses, malware and other malicious code in the End Client application or on End Client’s systems.
6. Compliance with Laws. You must comply with all applicable laws with respect to your use of the Service. In no way limiting the generality of the foregoing, you warrant and will ensure that you will provide all notices and obtains all consents required under applicable law.
7. Modification of these Additional Terms. We reserve the right to change these Additional Terms on a going-forward basis at any time. Please check these Additional Terms periodically for changes. If a change to these Additional Terms materially modifies your rights or obligations, we may require that you accept the modified Terms in order to continue to use the Service. Your exclusive remedy if you object to any modifications is to cease any and all access and use of the Service. Immaterial modifications are effective upon publication. Except as expressly permitted in this Section, these Additional Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Additional Terms. Disputes arising under these Additional Terms will be resolved in accordance with the version of these Additional Terms that was in effect at the time the dispute arose.
8. Insurance. You will maintain insurance coverage that is no less than industry standard and will include cybersecurity liability insurance.
9. Term, Termination and Modification of the Service.
a. Term. These Additional Terms are effective beginning when you accept the Additional Terms or first access or use the Service, and end when terminated as part of any termination of any existing agreement between you and Say or as otherwise described in Section 3.2.
b. Termination. If you violate any provision of these Additional Terms, your authorization to access the Service and these Additional Terms automatically terminates.
c. Effect of Termination. Upon termination of these Additional Terms: (a) your license rights will terminate, and you must immediately cease all use of the Service; (b) you will no longer be authorized to access your account or the Service; and (c) Sections of these Additional Terms which by their nature survive any termination will survive.
10. Indemnity To the fullest extent permitted by law, you are responsible for your use of the Service, and you will defend , indemnify and hold Say, Say’s affiliates, and its and their officers, directors, employees, consultants, and agents (together, the “Say Entities”) harmless from and against every claim brought by a third party (including any Partner), and any related liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or connected with: (a) your unauthorized use of, or misuse of, the Service; (b) any Security Breach or your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third party right, including any intellectual property right or right of privacy, publicity, confidentiality, or other property right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
11. Disclaimers; No Warranties
YOU ACKNOWLEDGE THAT ANY EXISTING DISCLAIMERS AND ONLY EXPRESS WARRANTIES, IN EACH CASE, SET FORTH IN EXISTING AGREEMENTS BETWEEN YOU AND SAY SHALL APPLY TO THE SERVICE AND NO ADDITIONAL WARRANTIES SHALL BE DEEMED MADE IN CONNECTION WITH THESE ADDITIONAL TERMS. THE SERVICE IS OTHERWISE PROVIDED “AS IS.” TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER SAY NOR ITS AFFILIATES, SUPPLIERS, LICENSORS, PARTNERS AND DISTRIBUTORS MAKE ANY WARRANTY OF ANY KIND, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR ANY WARRANTY THAT THE SERVICE IS FREE FROM DEFECTS. NEITHER SAY NOR ITS PARTNERS MAKE ANY WARRANTY AS TO THE OUTPUT THAT MAY BE OBTAINED FROM USE OF THE SERVICE. SAY’S PARTNERS ARE INTENDED THIRD-PARTY BENEFICIARIES OF THIS AGREEMENT AND MAY DIRECTLY ENFORCE SUCH AGREEMENT AGAINST YOU, WITHOUT SAY’S CONSENT OR PARTICIPATION, BUT SOLELY RELATING TO THE OUTPUT OR SERVICE PROVIDED BY SAY TO END CLIENT.
12. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE SAY ENTITIES OR ANY PARTNER BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY SAY ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
THE AGGREGATE LIABILITY OF THE SAY ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO $100.
EACH PROVISION OF THESE ADDITIONAL TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE ADDITIONAL TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE ADDITIONAL TERMS. THE LIMITATIONS IN THIS SECTION 12 (LIMITATION OF LIABILITY) WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
The limitations of liability set forth in this Section 12 (Limitation of Liability) shall apply with respect to any violation by you of these Additional Terms notwithstanding any limitation of liability, exclusion of damages or lack thereof or any similar provision of any other agreement between you and Say.
13. Miscellaneous
a. General Terms. You may not assign or transfer these Additional Terms or your rights under these Additional Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Additional Terms at any time without notice or consent. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of these Additional Terms, or any provision of these Additional Terms, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of section headers in these Additional Terms is for convenience only and will not have any impact on the interpretation of any provision. Throughout these Additional Terms the use of the word “including” means “including but not limited to”. If any part of these Additional Terms is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.
b. Governing Law. These Additional Terms are governed by the laws of the State of California without regard to conflict of law principles.
c. Privacy Policy. Please read the Say Privacy Policy carefully for information relating to our collection, use, storage, disclosure of your personal information. The Say Privacy Policy is incorporated by this reference into, and made a part of, these Terms.
d. Further Terms. Your use of the Service is subject to all further terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Further Terms”). All Further Terms are incorporated by this reference into, and made a part of, these Terms.
e. Consent to Electronic Communications. By using the Service, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.
f. Contact Information. The Service is offered by Say Technologies LLC. You may contact us by emailing us at hello@saytechnologies.com.
g. No Support. We are under no obligation to provide support for the Service pursuant to these Additional Terms. In instances where we may offer support, the support will be subject to published policies or other applicable agreements.
h. International Use. The Service is intended for users located within the United States. We make no representation that the Service is appropriate or available for use outside of the United States. Access to the Service from countries or territories or by individuals where such access is illegal is prohibited.
i. Conflict. In the event of any other conflict with any other agreement, these Additional terms shall govern and prevail.