TERMS AND CONDITIONS
PLEASE READ THIS AGREEMENT CAREFULLY. BY (I) CLICKING A BOX INDICATING YOUR ACCEPTANCE; OR (II) BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT; OR (III) BY DIGITALLY OR MANUALLY SIGNING THIS AGREEMENT, YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MAY NOT USE THE SERVICE.
1. TERM, RENEWAL AND TERMINATION
The term of this Agreement is one year unless otherwise indicated and approved by YVTHINKERS (e.g., on an Order Form, on the YVTHINKERS website, etc.). If a multi-year payment schedule is selected, the term equals the length of the payment cycle. Free and Trial plans can be canceled at any time.
You will be liable for all the fees of your account according to the terms of this Agreement. This Agreement renews automatically for a term of equal length at the end of each term, unless it is previously terminated by either party or a different plan and/or term is selected to take effect on the next renewal date. Annual and multi-year terms require thirty (30) days written notice for cancellation or downgrades before the end of their term, which requires signing into the account and completing the cancellation process. Cancellations or downgrades requested in the middle of a term will be effective on the next renewal date.
For the term of the Agreement, yvthinker grants to You a limited, non-transferable, non-exclusive right to access and use its proprietary, commercially available Service for Your internal business use. The Service is made available to You as a hosted service. We host and retain physical control over the software and only make it available for access and use by You and Your end users over the Internet. Nothing in this Agreement obligates yvthinker to deliver or make available any copies of computer programs or code from the software to You. You may not rent, lease, distribute, or resell the Service, or use the Service as the basis for developing a competitive solution (or contract with a third party to do so), or remove or alter any of the logos, branding, trademark, patent or copyright notices, confidentiality or proprietary legends or other notices or markings that are on or in the Service.
3. YOUR DATA PROTECTION RESPONSIBILITIES
You understand that yvthinker offers a platform for creating applications. The platform provides many security features, which vary by edition. However, it is the responsibility of You and Your personnel to build applications in accordance with security best practices and applicable data protection laws. Additionally, You expressly acknowledge that Your personnel have the capability to download data, create API tunnels, as well as authorize third-party services to view or manipulate the data and files stored in Your yvthinker account. You and Your personnel are also able to build applications that allow public or authorized users to view or download data. It is Your responsibility to ensure that Your personnel are properly trained in the use of these features and follow all applicable data protection laws, data management security best practices, and your company’s policies. You hereby acknowledge that You and Your personnel could intentionally or inadvertently expose Your data to unauthorized users if proper practices and procedures for building secure applications are not followed. Further, You alone shall be responsible and liable for any unauthorized or unintentional data disclosure that may occur from the acts, omissions, or negligence of You, Your personnel or the end user.
4. USAGE RULES
The Service is offered to you to help you with the operation of your business.
You may not access the Service if you are a direct competitor of Yvthinker You may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes. You may not, without Yvthinker's prior written consent, allow any employee or consultant to perform any technical security integrity review, penetration test, load test, denial-of-service simulation or vulnerability scan.
You agree not to use the Service to: (i) conduct any business that is unlawful; (ii) infringe or otherwise violate a third party’s rights; (iii) collect information about third parties without their express consent; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; (v) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (vi) send or store infringing, obscene, pornographic, threatening, libelous, or otherwise unlawful or tortuous material, including material harmful to children or in violation of third party privacy rights; (vii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (viii) facilitate online gambling, games of skill or lotteries, including online casino, sports books, bingo, or poker that in any way involves the collection and/or disbursement of gambling funds by and through yvthinkers platform; (ix) facilitate or support any pyramid or Ponzi schemes, matrix programs, or other “get rich quick” schemes; (x) facilitate or participate in any phishing schemes; (xi) attempt to gain unauthorized access to the Service or its related systems or networks, or (xi) falsify the origin of an electronic message (email, SMS, etc.) in any way.
5. NON-CASPIO PRODUCTS AND SERVICES
Yvthinker's and/or third parties may make available (i.e., through a Marketplace or otherwise) third party products or services and implementation and other consulting services (“Non-Caspio Applications”). Any use by Customer of any Non-Yvthinker's Products/Services, and any exchange of data between Customer and any Non-Yvthinker's provider, product or service, is solely between Customer and the applicable Non-Yvthinker's provider. Yvthinker's does not warrant or support Non Yvthinker's Applications or other Non-Yvthinker's products or services, whether they are designated by Yvthinker's as “Certified” or otherwise, unless expressly so provided in an Order Form (specifically, Yvthinker'sis not responsible for any disclosure, modification or deletion of Customer Data arising from any Non Yvthinker's Application or its provider). The Services may contain features designed to interoperate with Non-Yvthinker's Applications; however, Caspio does not guarantee the continued availability of such Service features, and may cease providing them without entitling Customer to any refund, credit, or other compensation.
6. FREE PLAN
If you are using a Yvthinker's Free plan you agree that You (i) will not hide or otherwise tamper with Yvthinker's branding on your applications; (ii) will maintain accurate and up to date contact information; and (iii) will not sign up for more than one free account unless explicitly permitted by Yvthinker's. Yvthinker'smay, at its sole discretion, (a) immediately terminate your service if any of the requirements above are not met; or (b) change or discontinue the Free plan at any time.
7. SUSPENSION DUE TO HARM
Yvthinker's may suspend Your account if it reasonably concludes that the activity of Your account is unlawful, or causes harm to Yvthinker's and/or others. If we suspend Your access to the Service, we will use commercially reasonable efforts to notify you and to resolve the issues causing the suspension of Service. Yvthinker's shall not be liable to You nor to any third party for any suspension of the Service under such circumstances. It is Your responsibility to ensure that the contact information in your account is accurate for reaching You or Your representative.
Fees and any other charges for the use of the Service and for any add-ons and overages are described on the Order Form or Yvthiner's website, and may change from time to time. If we change them, we will give you at least 30 days’ notice, after which your continued use of the Service indicates your agreement with the new fees and charges. Any change to fees and other charges will not be applicable to the Term in which the change occurs.
9. LATE PAYMENT
All Service fees are billed in advance according to Your chosen billing cycle. Overage fees are billed monthly arrears. All Fees shall be paid in United States dollars unless otherwise agreed. If undisputed amounts are not paid within thirty (30) days Your account is automatically suspended. Suspended accounts (including their data and applications) are automatically deleted thirty (30) days after suspension. Reactivation of a suspended account requires the payment of all past due invoices and a reactivation fee.
You must notify Yvthinker's within fifteen (15) days of the end of a billing cycle regarding any amount in dispute and must include reasonable detail regarding such dispute.
10. OWNERSHIP OF INTELLECTUAL PROPERTY
You retain all right, title and interest to all the data that you, your employees or your app end users upload or submit to your account in the course of using the Service “Customer Data”. You, not Yvthiner's , shall have sole responsibility for the accuracy, quality, integrity, legality, deletion, correction, reliability, appropriateness, and intellectual property ownership or right to use the uploaded, submitted or exported Customer Data, and Yvthiner's shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data, or any use or export of such Customer Data from your Yvthiner's account. Yvthiner's reserves the right to withhold, remove and/or discard Customer Data without notice for any breach, including non-payment or unlawful use of the Services, provided, however, that this right shall not infringe upon a data subject’s right under any applicable data protection laws. Upon termination for cause, your right to access or use Customer Data immediately ceases, and Yvthiner's shall have no obligation to maintain or forward any Customer Data.
Yvthiner's shall own all rights, title and interest in and to all intellectual property rights in the Service and software, and transactional and performance data. The license granted to You does not convey any rights or ownership in the Service, express or implied, or any intellectual property rights thereto. Any rights not expressly granted herein are reserved by Yvthiner's.
11. FAIR USE
Many Yvthinker's plans do not impose fixed limits on the usage of certain resources (e.g. data transfer, triggered actions, API profiles, etc.). Our intention is to provide simple pricing plans that allow customers to enjoy our services with as much freedom and little concern as possible.
These plans are suitable for 99% of our customers. The usage of about 1% of our customers fall outside what we consider “Fair Use” and they will be contacted by our staff to consider a more appropriate plan. Many factors determine Fair Use for any given account, such as the overall size of the account, length of the relationship, level of commitment, industry, geographic region, and customer engagement factors.
12. UPGRADES AND UPDATES
Yvthinker's reserves the right to enhance, upgrade, or modify the Service without notice to you. At Yvthinker's sole discretion some updates may be made available to You free of charge and some other features and functionalities may require additional fees if you choose to use them.
13. CONFIDENTIAL INFORMATION
For purposes of this Agreement, confidential information shall include Customer Data, and any information that is clearly identified in writing at the time of disclosure as confidential (“Confidential Information”). Notwithstanding any definition contained within, personally identifiable information shall be considered confidential. Each party shall: (a) keep confidential all Confidential Information disclosed to it by the other party or by a third-party; (b) not use the Confidential Information of the other party except to the extent necessary to perform its obligations or exercise rights under this Agreement; and (c) protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information). Either party may disclose Confidential Information on a need-to-know basis to its employees or contractors who have executed written agreements requiring them to maintain such information in strict confidence and use it only to facilitate the performance of their services in connection with the performance of the Services. Confidential Information shall not include information which: (1) is known publicly; (2) is generally known in the industry before disclosure; (3) has become known publicly, without fault of the recipient, subsequent to disclosure by the disclosing party; or (4) the recipient becomes aware of from a third party not bound by non-disclosure obligations to the disclosing party and with the lawful right to disclose such information to the recipient. Notwithstanding the foregoing, this Section will not prohibit the disclosure of Confidential Information to the extent that such disclosure is required by law or order of a court or other governmental authority or regulation. With respect to any information received by either party from the other as a result of any other relationship between the parties other than in the course of performance hereunder (e.g., business development, partnership, alliance, etc.), the parties will abide by the terms and conditions of any applicable Nondisclosure Agreement (or similar agreement) executed between the parties.
All payments, fees and other charges payable by You to Yvthinker's under this Agreement are exclusive of all federal, state, local and foreign taxes, levies and assessments. You are responsible for the payment of all such taxes, levies and assessments imposed on You or Yvthinker's arising out of this Agreement, excluding any tax based on Yvthinker's net income.
Yvthinker's represents and warrants that (i) Yvthinker's has all rights necessary to grant to You the rights set forth in this Agreement; and (ii) the Service will perform substantially in accordance with the user manuals and/or technical requirements documents that are generally provided by Yvthinker's in connection with the Service. EXCEPT FOR THE FOREGOING, THE SERVICE AND THE SOFTWARE ARE PROVIDED “AS IS” AND CASPIO HEREBY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICE, SOFTWARE, DOCUMENTATION, DELIVERABLES AND OTHER MATERIALS AND/OR SERVICES. CASPIO DOES NOT WARRANT THAT OPERATION OF THE SOFTWARE OR SERVICE IS ERROR-FREE OR THAT ITS OPERATION WILL BE UNINTERRUPTED. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE SERVICE.
16. LIMITATION OF LIABILITY
In no event will either party be liable for any indirect, consequential, special, punitive, or exemplary damages arising out of this Agreement. The aggregate liability of either party to the other with respect to this Agreement is limited to the fees collected by Yvthinker's from You pursuant to this Agreement in the twelve months preceding the imposition of liability.
Caspio will, at its expense, defend or settle (at its option) any claim brought against You that the Service infringes any copyright, patent, trade secret, or any other proprietary right of any third party and will pay any final judgments awarded or settlements entered into; provided that You give prompt written notice to yvthinkersof any such claim and yvthinkershas the exclusive right to defend any infringement claim and make settlements thereof at its own discretion. You may not settle or compromise such claim except with prior written consent of yvthinkers. You must give such assistance and information as Caspio reasonably requires.
In the event any infringement claim, action or allegation is brought or threatened, yvthinkers may, at its sole option and expense: (i) procure for You the right to continue use of the Service or infringing part thereof; (ii) modify, amend, or replace the Service or infringing part thereof, with other software having reasonably comparable capabilities; or, if neither of the foregoing is commercially practicable, (iii) terminate this Agreement and refund to You the prorated amount of the fees prepaid by You that were to apply to the remainder of the unexpired Term.
The foregoing obligations will not apply to the extent the infringement arises from: (i) any use of the Service in a manner other than as specified in this Agreement; (ii) any use of the Service in combination with other products, equipment, devices, software, systems or data not supplied by yvthinkers ; or (iii) any alteration, modification or customization of the Service made by any party other than yvthinkers or yvthinkers authorized representative, if such infringement would not have occurred without such modification or combination.
The foregoing states Caspio’s entire liability for infringement of any intellectual property right.
You shall indemnify, hold harmless and defend Caspio, at your expense, against any and all third-party claims, actions, proceedings, and suits brought against yvthinkers or any of its officers, directors, employees, agents or affiliates, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including reasonable attorneys’ fees and litigation expenses) incurred by Caspio or any of its officers, directors, employees, agents or affiliates, arising out of or relating to (i) your use of the Services to serve applications and data to your end users; (ii) your breach of this Agreement; (iii) your negligence or willful misconduct; or (iv) your violations of applicable law.
18. MODIFICATIONS TO TERMS OF SERVICE AND OTHER POLICIES
yvthinkers may modify any of the terms and conditions contained in this Agreement or any policy governing the Service by posting the new agreement to the yvthinkers website. Your continued use of the Service following yvthinkers posting of changes constitutes your acceptance thereof.
19. COMPLIANCE WITH LAWS
Each party must comply with all laws, rules or regulations applicable to such party’s activities in relation to this Agreement, including export control laws of the United States.
This Agreement includes the yvthinkers Data Processing Agreement (DPA) incorporated herein by reference. By agreeing to this Agreement, you also agree to the terms of the DPA. You may opt out of the DPA in its entirety by contacting yvthinkers here. If you choose to opt out, you will be prohibited from using the Services to process personal data regulated by any applicable law.
Should you wish to use the Services in such a way to make you and your application(s) subject to other industry-specific regulations, you will be solely responsible for compliance with such regulations. Further, you may not use the Services in such a way that would subject yvthinkers to those regulations without obtaining yvthinkers prior written agreement. For example, you may not use the Services to collect, protect, or otherwise handle “Protected Health Information” (as defined in 45 C.F.R. §160.103) without entering into a separate Business Associate Agreement (BAA) with yvthinkers and subscribing to a HIPAA enabled service plan.
yvthinkers does not and will not provide any legal advice regarding compliance with data privacy or other relevant laws, rules or regulations (“Laws”). You understand that the Service can be configured and used in ways that do and do not comply with Laws and it is Your sole responsibility to monitor its compliance and Your employee’s compliance with all relevant Laws.
20. SEVERABILITY AND WAIVER
Any provision of this Agreement held unenforceable for any reason shall be reformed to the extent necessary to make it enforceable. The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach.
21. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of the state of California without regard to its conflicts of laws or its principles. You submit to the jurisdiction of the state of California, and agree to the courts of Santa Clara County, California as the appropriate forum. IN NO EVENT MAY THIS AGREEMENT BE GOVERNED BY THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS.
22. U.S. GOVERNMENT RIGHTS
If the use of the Service is acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor in accordance with 48 C.F.R. 227.7202-4 (for Department of Defense (DOD) acquisitions) or 48 C.F.R. 2.101 and 12.212 (for non-DOD acquisitions), the Government’s rights in the Software, including rights to use, modify, reproduce, release, perform, display or disclose the Software or Documentation, shall be subject in all respects to the license rights and restrictions provided in this Agreement.
23. ASSIGNMENT; CHANGE IN CONTROL
This Agreement may be assigned by yvthinkers to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any actual or proposed change in control of You shall entitle yvthinkers to terminate this Agreement for cause immediately upon written notice.