Terms and Conditions
Last modified October 26, 2021
How it Works
Individuals authorized by the Customer to access the Culture Fire (an “Authorized User”) may submit content or information into the Culture Fire (“Customer Data”). For a subscription, the number of permitted unique person records (“Individual Account”) of the Customer shall be defined in the Sales Order and/or Statement of Work or other relevant agreement. The Customer may request Culture Fire to input Individuals into the Product for its initial setup, which may include a setup fee. Thereafter, Authorized Users of Customer shall input all necessary information.
Upon submitting content or information into the Product, Customer hereby agrees and acknowledges that it has full authority to submit such Individual Account information and/or has obtained the consent of such Individuals for input into the Product.
Customer will ensure that (a) Authorized Users are bound to and must abide to the policies and practices that are relevant to their use of the Product and of any settings that may impact the processing of Customer Data; and (b) ensure that the input, transfer, and processing of Customer Data under the Terms and Conditions is lawful. Culture Fire shall not be responsible for monitoring the accuracy or legality of Customer Data.
Customer shall comply with all applicable laws and regulations in connection with the use of the Product, including privacy, international communications, and transmission of technical or personal data. We will not be responsible for the control over the content of the information transmitted by Customer directly to the Product or over the content of the information from the Customer through the Product.
Subscriptions and Authorized Users
Upgrading Culture Fire Product
We are continuously seeking ways to improve Culture Fire Products. As such, we may share information about our future product plans or improvements to our current products and will periodically upgrade the software. However, we ask that our Customers make their decisions about whether or not to use the Culture Fire based on the functionality or features we have made available today and not on the delivery of any future functionality or features.
Beta Tester Opportunities
Sometimes, we look for beta testers to help us test new features to the Culture Fire Products. These features will be identified as “beta” or “pre-release,” or words or phrases with similar meanings (each, a “Beta Product”). Beta Products may not be ready for prime time so they are made available “as is,” and any warranties or contractual commitments we make for other SaaS Services do not apply. We would appreciate any feedback relating to any issues with our Beta Product.
Feedback from Customer
We encourage Customers to send us any feedback or suggestions regarding the Culture Fire Products so that we can improve SaaS Services. In response to such feedback/suggestion, Culture Fire may adjust its product to improve its usability and functionality. In such case, Customer grants us (for itself and all of its Authorized Users and other Customer personnel) an unlimited, irrevocable, perpetual, sublicensable, transferable, royalty-free license to use any such feedback or suggestions for any purpose without any obligation or compensation to Customer, any Authorized User or other Customer personnel.
Customer and Authorized Users
Use of the Culture Fire
A Customer who enters into a Sales Order and/or Statement of Work receives a non-exclusive, non-assignable, royalty-free, worldwide right to access and use the Product solely for its internal business operations subject to these Terms and Conditions and the Sales Order and/or Statement of Work. Customer and their Authorized Users must comply with these Terms and Conditions. We may review conduct for compliance purposes, but are under no obligation to do so. We are not responsible for the content of any Customer Data or the way Customer or its Authorized Users choose to use the Culture Fire Product to store or process any Customer Data. Customer is solely responsible for providing high speed internet service for itself and its Authorized Users to access and use the SaaS Services.
Customer should provide commercially reasonable information and assistance to us to allow us to enable the SaaS Services dependent upon the accuracy and timeliness of such information and assistance.
Restrictions of Use
Customer shall not, and shall not permit anyone to:
- copy or republish the SaaS Services or Software in any manner, including but not limited to copying or reproducing any object code or source code, any of the input or output data, or any visualization of data of the SaaS Services or Software,
- make the SaaS Services available to any person other than Authorized Users,
- use or access the SaaS Services to provide service bureau, time-sharing or other computer hosting services to third parties,
- modify or create derivative works based upon the SaaS Services or Documentation,
- remove, modify or obscure any copyright, trademark or other proprietary notices contained in the software used to provide the SaaS Services or in the Documentation,
- reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the Software used to provide the SaaS Services, except and only to the extent such activity is expressly permitted by applicable law, or
- access the SaaS Services or use the Documentation in order to build a similar product or competitive product.
Culture Fire reserves the right to suspend access to the Product if Culture Fire reasonably concludes that Customer or an Authorized User’s use of the Product is causing immediate and ongoing harm to Culture Fire or others. In the extraordinary case that Culture Fire must suspend access to the Product, Culture Fire shall immediately notify Customer of the suspension and the parties shall diligently attempt to resolve the issue.
Subject to the limited access rights granted herein, Culture Fire shall own all right, title and interest in and to the Software, services, Documentation, and other deliverables provided under this SaaS Agreement, including all modifications, improvements, upgrades, derivative works, and feedback related thereto and intellectual property rights therein. Thus, while Customer may pay for development work to customize of develop the Software, services, Documentation, and other deliverables under the Sales Order and/or Statement of Work, Customer agrees to assign all rights, title and interest in the development work that it may have in the foregoing to Culture Fire.
License from Customer
Subject to the terms and conditions of this SaaS Agreement, Customer grants to Culture Fire a worldwide, non-exclusive, and non-transferable limited term license to access, use, process, copy, store, configure, perform, display and transmit Customer Data to provide the SaaS Services to Customer. For the avoidance of all doubt, such license is granted as reasonably necessary to (a) to provide, maintain and update the Services; (b) to prevent or address service, security, support or technical issues; (c) as required by law; (d) to conduct business-related analyses of the integrity and validity of the Services; and (e) as expressly permitted in writing by Customer. Furthermore, Customer hereby acknowledges that Culture Fire may use and share its Non-PII Data for data analytics and insights. At no time will Culture Fire disclose PII Data to a third party unless required by law or with prior written consent by Customer. Customer represents and warrants that it has secured all rights in and to Customer Data from its Authorized Users as may be necessary to grant this license.
Removal Rights of Culture Fire
If we believe that there is a violation of these Terms and Conditions or the relevant agreement that can simply be remedied by Customer’s removal of certain Customer Data, we may ask Customer to take direct action rather than intervene. However, we may directly step in and take what we determine to be appropriate action, if Customer does not take appropriate action, or if we believe there is a credible risk of harm to us, the Culture Fire Product, Authorized Users, or any third parties.
For Customers that purchase a subscription to the Culture Fire, fees are specified through an Culture Fire representative or through the Culture Fire Site or through a Sales Order and/or Statement of Work and must be paid in advance. Payment obligations are non-cancelable and, except as expressly stated in the relevant agreement, fees paid are non-refundable. For clarity, in the event Customer downgrades any subscriptions from a paid plan to a free plan, Customer will remain responsible for any unpaid fees under the paid plan, and SaaS Services under the paid plan will be deemed fully performed and delivered upon expiration of the initial paid plan subscription term. If we agree to invoice Customer by email, full payment must be received within thirty (30) days from the invoice date. All fees shall be paid in advance. Fees are stated to be exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”). Customer will be responsible for paying all Taxes associated with its purchases, except for those taxes based on our net income. Should any payment for the SaaS Services be subject to withholding tax by any government, Customer will reimburse us for such withholding tax. All fees are stated in United States Dollars and must be paid by Customer to Culture Fire in United States Dollars.
Suspension for Non-Payment
If any fees owed to us by Customer (excluding amounts disputed reasonably and in good faith) are thirty (30) days or more overdue, we may, without limiting our other rights and remedies, suspend any fee-based SaaS Services until those amounts are paid in full, so long as we have given Customer thirty (30) or more days’ prior notice that its account is overdue. If an account is suspended, Customer’s suspension may result in the potential loss of access to Customer Data. Customer agrees that Culture Fire shall not be liable to Customer or to any third party for any liabilities, claims or expenses arising from or relating to suspension of the Culture Fire resulting from Customer’s nonpayment.
Providing the Culture Fire
We agree to make the Culture Fire Product(s) available to you as described in the relevant agreement, which includes processing Customer Data related to such use or otherwise necessary for the performance of the Product.
We also agree that (a) the Product will perform materially in accordance with the terms of our agreement with you; and (b) we will not materially decrease the functionality of the Product during a subscription term (except as described above for “Suspension of Non-Payment”).
Availability of Service
For all Culture Fire plans, we will use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, excluding planned downtime. We expect planned downtime to be infrequent, but will endeavor to provide Customer with advance notice (e.g., through the Culture Fire Site or via email), if we think it may exceed five (5) continuous minutes.
Protecting Customer Data
We will never share PII Data with any third party unless required by a governmental authority. Before sharing Non-PII Data with any of our third party service providers, we will ensure that the third party maintains, at a minimum, reasonable data practices for maintaining the confidentiality and security of Customer Data and preventing unauthorized access.
You (not us) bear the sole responsibility for adequate security, protection and backup of Customer Data when your (including your representative or agent’s) possession or control. We are not responsible for what your Authorized Users do with Customer Data. That is your responsibility.
The Culture Fire Family
We may leverage our employees, those of our corporate affiliates, and third party contractors (the “Culture Fire Family”) in exercising our rights and performing our obligations under the relevant agreement. We will be responsible for the Culture Fire Family’s compliance with our obligations under the relevant agreement.
Ownership and Proprietary Rights
You own all your Customer Data. Subject to the terms and conditions of any relevant agreement, you (for yourself and all of your Authorized Users) grants to Culture Fire a worldwide, non-exclusive, and non-transferable limited term license to access, use, process, copy, store, configure, perform, display and transmit Customer Data to provide the SaaS Services to you. We may need this license to do any of the following things:
(a) to provide, maintain and update the Services;
(b) to prevent or address service, security, support or technical issues;
(c) as required by law;
(d) to conduct business-related analyses of the integrity and validity of the Services; and
(e) as expressly permitted in writing by Customer.
In addition, you acknowledge that Culture Fire may use and share its Non-PII Data for data analytics and insights. At no time will we disclose PII Data to a third party unless required by law or with your prior written consent. You understand that you must have all rights to input Customer Data from the individuals and any Authorized Users.
We own and will continue to own our Services, including all related intellectual property rights. We grant to you a nonexclusive, non-transferable, nonCulture Fire-assignable, royalty free, worldwide right to access and operate the object code version of these components, by you and your Authorized Users, solely as necessary to use the Services and in accordance with the Sales Order and/or Statement of Work, and these Terms and Conditions.
We acknowledge that you may ask us to provide some development work to customize your Product, which may be done under a Sales Order and/or Statement of Work without or without certain payment terms. Nevertheless, you hereby assign all rights, title and interest in the development work relating to the Product, services, documentation, or other deliverables that Culture Fire provides to you, provided that Culture Fire shall never disclose any of your Confidential information.
Term and Termination
The term of this Agreement shall begin on the Effective Date and shall continue until terminated by either party with thirty (30) days written notice to terminate all SaaS Services. A free subscription continues until terminated, while a paid subscription has a term that may expire or be terminated. Customer agrees to enter into a Sales Order and/or Statement of Work, which shall define the term of its subscription to the Product. The term in the Sales Order and/or Statement of Work remains effective until all subscriptions ordered under the Sales Order and/or Statement of Work have expired or been terminated or the Sales Order and/or Statement of Work itself terminates. Termination of the Sales Order and/or Statement of Work will terminate all subscriptions and all Sales Orders and/or Statements of Work.
Unless the Sales Order and/or Statement of Work says something different, (a) all subscriptions automatically renew for additional periods equal to one (1) year or the preceding term, whichever is shorter; and (b) the per-unit pricing during any automatic renewal term will remain the same as it was during the immediately prior term unless the Customer is provided with the current Rate Card prior to the expiration of their non-expired subscription or a new SaaS Agreement or a new Sales Order and/or Statement of Work are mutually agreed upon by the Customer and Culture Fire. Either party can give the other notice of non-renewal at least thirty (30) days before the end of a subscription term to stop the subscriptions from automatically renewing.
Termination for Cause
Termination Without Cause
Customer may terminate its free subscriptions immediately without cause. We may also terminate Customer’s free subscriptions without cause, but we will provide Customer with thirty (30) days prior written notice.
Effect of Termination
Upon termination or expiration of the SaaS Agreement, we will immediately cease providing the Culture Fire and all access and usage rights granted shall terminate. Upon any termination for cause by Customer, we will refund Customer any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by us, Customer will pay any unpaid fees covering the remainder of the term of those subscriptions after the effective date of termination. In no event will any termination relieve Customer of the obligation to pay any fees payable to us for the period prior to the effective date of termination.
Data Portability and Deletion
We are custodians of your Customer Data. During the term of your subscription, you are permitted to export or share certain Customer Data from the Services. However, the ability to export or share Customer Data may be limited or unavailable depending on the type of Services plan in effect and the data retention or sharing settings enabled. Following termination or expiration of a Customer’s subscriptions, we will have no further obligation to maintain or provide any Customer Data and may thereafter, unless legally prohibited, delete all Customer Data in our systems or otherwise in our possession or under our control. However, upon written notice by you within fourteen (14) days of the expiration or termination of the Sales Order and/or Statement of Work, we may allow and assist you to export your Customer Data at the then current rate for Data Exportation. You acknowledge that all the functionality of the Product will not be available to Customer upon exportation of the Customer Data.
WARRANTIES, DISCLAIMERS, AND INDEMNIFICATIONS
Our representations, disclaimers, and warranties are specifically addressed in relevant agreements that we may have with you. However, we intend to use commercially reasonable efforts to ensure that you have best experience with our Products.
At a minimum, by using our Services, you represent and warrant that you and your Authorized Users have validly entered into an agreement with us and that you have the legal power to do so.
Culture Fire AND ITS AGENTS DO NOT GUARANTEE OR MAKE ANY SPECIFIC PROMISES (e.g., ERROR-FREE, VIRUS-FREE, SECURE, UNINTERRUPTED, OR TIMELY OR THAT Culture Fire WILL CORRECT ALL SAAS SERVICES ERRORS) ABOUT THE PERFORMANCE OF THE PRODUCT. FOR EXAMPLE, WE DON’T MAKE ANY REPRESENTATIONS ABOUT THE CONTENT IN THE SITE, THE FUNCTION OF THE Culture Fire, OR THEIR RELIABILITY, AVAILABILITY, OR ABILITY TO MEET YOUR NEEDS. THE Culture Fire PRODUCT AND SITE IS “AS IS”.
CUSTOMER ACKNOWLEDGES THAT Culture Fire DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SAAS SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS. OM SYSTEMS OR ANY OF ITS AGENTS WILL NOT BE LIABLE FOR UNAUTHORIZED ALTERATION, THEFT OR DESTRUCTION OF CUSTOMER’S OR ANY USER’S DATA, FILES, OR PROGRAMS.
Culture Fire FURTHER STATES THAT THE ILLNESS-RELATED TRACKING FUNCTIONALITY IS MERELY A RESOURCE TO ASSIST CUSTOMER WITH MONITORING ILLNESSES AND ACTUAL OR POTENTIAL TRANSMISSION OF DISEASE. HOWEVER, Culture Fire DOES NOT GUARANTEE THAT THE SAAS SERVICES WILL PREVENT FUTURE ILLNESS OR TRANSMISSION OF DISEASE AND WILL NOT BE LIABLE FOR ILLNESS OR TRANSMISSION OF DISEASE OF PERSONS DIRECTLY OR INDIRECTLY ASSOCIATED WITH THE CUSTOMER.
Culture Fire SHALL NOT BE LIABLE FOR CUSTOMER’S COMPLIANCE WITH FEDERAL, STATE, OR LOCAL REGULATIONS. EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, THE SERVICES AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
Limitation of Liability
EXCEPT WHERE PROHIBITED, NEITHER PARTY (NOR ANY LICENSOR OR OTHER SUPPLIER OF Culture Fire) SHALL BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST BUSINESS, PROFITS, DATA OR USE OF ANY SERVICE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY IN CONNECTION WITH THIS SAAS AGREEMENT, REGARDLESS OF THE NATURE OF THE CLAIM (INCLUDING NEGLIGENCE), EVEN IF FORESEEABLE OR THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER PARTY’S AGGREGATE LIABILITY FOR DAMAGES UNDER THE SAAS AGREEMENT, REGARDLESS OF THE NATURE OF THE CLAIM (INCLUDING NEGLIGENCE), SHALL EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER UNDER THIS SAAS AGREEMENT DURING THE 12 MONTHS PRECEDING THE DATE THE CLAIM AROSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
Customer is responsible for all login credentials, including usernames and passwords, for administrator accounts as well the accounts of your Authorized Users. We will not be responsible for any damages, losses or liability to Customer, Authorized Users, or anyone else, if such information is not kept confidential by Customer or its Authorized Users, or if such information is correctly provided by an unauthorized third party logging into and accessing the Services.
Customer grants us the right to use Customer’s company name and logo as a reference for marketing or promotional purposes on our website and in other public or private communications with our existing or potential customers, subject to Customer’s standard trademark usage guidelines as provided to us from time-to-time. However, Customer may opt out at any time by sending us an email to email@example.com informing us that they do not want to be listed.
As our business evolves, we may change these Terms and Conditions and the other components of the Sales Order and/or Statement of Work. If we make a material change to these terms or the Sales Order and/or Statement of Work, we will provide you with reasonable notice prior to the change taking effect, either by emailing the email address associated with your, by messaging you through the Services, or prominently posting on the Site. Of course, you can review the most current version of the Terms and Conditions at any time by visiting this page and by visiting the most current versions of the other pages that are referenced in the Agreement.
Any materially revised Terms will become effective on the date set forth in our notice, and all other changes will become effective upon posting of the change. If you or any of your Authorized Users access or use the Services after the effective date, that use will constitute your acceptance of any revised terms and conditions.
If you don’t comply with these Terms and Conditions and don’t take action right away, that does not mean that we waive those Terms and Conditions, or that we give up any rights relating to those Terms and Conditions.
Choice of Law
These Terms and Conditions shall be governed and construed with the laws of the State of Ohio, without regard to its conflict of law principles. You agree to consent to and submit to the exclusive jurisdiction of such courts located in Columbus, Ohio.
Customer acknowledges that SaaS Services is provided on a non-exclusive basis. Nothing shall be deemed to prevent or restrict OM Systems’ ability to provide the SaaS Services or other technology, including any features or functionality first developed for Customer, to other parties.
Each party will be excused from performance for any period during which, and to the extent that, such party or any subcontractor is prevented from performing any obligation or Service, in whole or in part, as a result of causes beyond its reasonable control, and without its fault or negligence, including without limitation, acts of God, strikes, lockouts, riots, acts of terrorism or war, epidemics, communication line failures, and power failures.
If any provision of these Terms and Conditions are found unenforceable, that will not affect any of the other provisions.
If you have any questions about these Terms and Conditions, please contact us at firstname.lastname@example.org.
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