Terms of Service

1. INTRODUCTION

  1. Welcome to Spokn! Your use of Spokn’s services, including the services Spokn makes available through this website and all related websites, subdomains, tablet or mobile applications, data files, visualizations and applications which link to these terms of service (the “Site”) and to all software or services offered by Spokn in connection with any of those (the “Services”), is governed by these terms of service (the “Terms”), so please carefully read them before using the Services.  For the purposes of these Terms, “we,” “our,” “us,” “Company,” “PODIO.XYZ” and “Spokn” refer to PODIO.XYZ Inc., the providers and operators of the Services.
  2. In order to use the Services, you (“Subscriber”) must first agree to these Terms. If you are registering for or using the Services on behalf of an organization, you are agreeing to these Terms for that organization and promising that you have the authority to bind that organization to these Terms. In that case, “you,” “your,” and “Subscriber” will also refer to that organization, wherever possible.
  3. BY USING, DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING THE SERVICES OR ANY MATERIALS INCLUDED IN OR WITH THE SERVICES, YOU HEREBY AGREE TO BE BOUND BY THESE TERMS.  IF YOU DO NOT ACCEPT THESE TERMS, THEN YOU MAY NOT USE, DOWNLOAD, INSTALL, OR OTHERWISE ACCESS THE SERVICES.

2.  SERVICES AND SUPPORT

  1. Subject to these Terms, Company hereby grants to Subscriber a limited, personal, non-transferable license to use the Service in the manner contemplated by these Terms solely for Subscriber’s internal business purposes, which shall include use by both Authorized Users and End Users, each as defined below.  The term “User” shall refer, collectively and individually, to both Authorized Users and End Users.
  2. As part of the registration process, Subscriber will identify an administrative user name and password for Subscriber’s Company account.  Subscriber agrees, on behalf of itself and its Authorized Users, to provide true, accurate, current, and complete information during the registration process.  Subscriber’s subscription shall entitle Subscriber to access the Services up to the number of unique Users identified in Subscriber’s Order Form.  An “Authorized User” is any individual authorized by Subscriber to register a staff account identified through a unique login as an administrator or master administrator.  In addition, Subscriber shall also be authorized to permit individuals inside of Subscriber’s organization to access content through the Service up to the limits identified in the Order Form.  Such users are referred to as “End Users.”   Access to the Service is subject to compliance by Subscriber and each User with these Terms.  Subscriber agrees that it is responsible for each of its User’s use of the Service and any breach by a User of these Terms or the Terms of Service shall be deemed a breach by Subscriber.
  3. Subscriber and Authorized Users shall have access to the functionality comprising the Services specified in the Order Form, as well as any and all improvements, updates, or enhancements released thereafter as they are made available to subscribers. Company reserves the right to modify, remove, adjust, replace, increase, or reduce the third party content made available to Subscriber at any time upon prior written notice in its sole and absolute discretion.
  4. Company will make available to Subscriber and its End Users content in accordance with the Services specified in the Order Form. The privacy of all Data shall be protected by Company in accordance with its privacy policy then in-effect, which is posted at https://getspokn.com/privacypolicy and incorporated by reference.
  5. Company makes available to Subscriber technical support services via e-mail on a twenty-four (24) hour, seven (7) days a week basis.  Company shall respond to any troubleshooting or customer support tickets created by Subscriber or any Authorized Users within 24 hours of receipt of the ticket. Tickets can be created by sending an email to enterprise.support@getspokn.com.
  6. The Company’s current data security policies can be found at [https://docs.google.com/document/d/11jRN9F1SzE8eXMf_PSEM4twpxlU4ldmgxG-XD_5rue8/edit?usp=sharing].    

3.  RESTRICTIONS AND RESPONSIBILITIES.

  1. Subscriber will not, directly or indirectly, and will not knowingly permit others to: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); (ii) modify, translate, or create derivative works based on the Services or any Software; (iii) use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; (iv) remove any proprietary notices or labels; (v) attempt in any way to circumvent the Subscription Limits set forth in Subscriber’s Order Form; (vi) upload or transmit via the Service or Software pornographic, threatening, embarrassing, hateful, racially or ethnically insulting, libelous, or otherwise inappropriate content; (vii) use the Service or Software for any purpose that is unlawful or is otherwise prohibited or unauthorized by these Terms; (viii) use the Service or Software in any manner that in our sole discretion could damage, disable, overburden, or impair it; (ix) attempt to gain unauthorized access to the Service; (x) modify the Service or Software in any manner or form, or use modified versions of the Service or Software; (xi) use any robot, spider, scraper, or other automated means to access or use the Service for any purpose without the Company’s express written permission; (xii) impersonate another person or access another User’s account without that User’s permission or to violate any contractual or fiduciary relationships; (xiii) share PODIO.XYZ-issued passwords with any third party or encourage any other User to do so; (xiv) misrepresent the source, identity, or content of data submitted to PODIO.XYZ; (xv) use the Service for any purpose other than Subscriber’s own internal business use; (xvi) remove, circumvent, disable, damage or otherwise interfere with features of the Software or Service; or (xvii) access the Service if Subscriber is a direct competitor of PODIO.XYZ, except with PODIO.XYZ’s prior written consent, or for any other competitive purposes.
  2. Company reserves the right, but does not assume the obligation, to investigate any violation of or misuse of the Services. In particular, Company agrees to: (A) Investigate violations of this acceptable use policy or misuse of the Services; or (B) Remove, disable access to, or modify any content or resource that violates this Policy or any other agreement that Company has with Subscriber or any User for use of the Services.

4.  CONFIDENTIALITY; PROPRIETARY RIGHTS; DATA PROTECTION

  1. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Service. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
  2. As between Subscriber and the Company, Subscriber shall own all right, title and interest in and to any data related to Subscriber, Subscriber’s clients, or Subscriber’s business, that Subscriber submits and stores via the Service (the “User Data”), which for the avoidance of doubt shall constitute the Proprietary Information of Subscriber.  PODIO.XYZ will not be responsible for any backup, recovery or other steps required to ensure that User Data is recoverable in the case of data loss. Subscriber is solely responsible for backing up its User Data on a regular basis, and taking appropriate steps to safeguard and ensure the integrity of its User Data.
  3. Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services (as defined in Subscriber’s Order Form) or support, (c) any metadata or telemetry regarding Subscriber’s use of the Services that is collected by Company (except to the extent that such metadata or telemetry contains User Data), and (d) all intellectual property rights related to any of the foregoing.

5.  PAYMENT OF FEES. Subscriber will pay Company the then applicable fees described in Subscriber’s Order Form for the Services and Implementation Services in accordance with the terms therein (the “Fees”). If Subscriber’s use of the Services exceeds the Subscription Limits set forth on Subscriber’s Order Form or otherwise requires the payment of additional fees (per these Terms), Subscriber shall be billed for such usage and Subscriber agrees to pay the additional fees in the manner provided herein. Specifically, if Subscriber seeks to or actually exceed the User limit set forth on Subscriber’s Order Form, Subscriber will be billed for an additional subscription fee per new User pro-rated for the remaining days in the then-current Term.  Subscriber may not decrease the number of Users during an applicable Term, provided that Subscriber may, by written notice at least 30 days’ prior to the end of the then-current Term, decrease the number of Authorized Users for the next Renewal Term.  Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term, as set forth on Subscriber’s Order Form, or thencurrent renewal term, upon 30 days prior notice to Subscriber (which may be sent by email). If Subscriber believes that Company has billed Subscriber incorrectly, Subscriber must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department.

6.  TERM AND TERMINATION.

  1. Subject to earlier termination as provided below, these Terms shall continue for the Initial Service Term as specified in Subscriber’s Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (such renewal terms, each a “Renewal Term,” and the Initial Service Term and Renewal Terms collectively, the “Term”), unless either party requests termination at least 30 days prior to the end of the then-current term.
  2. Subscriber may terminate these Terms for convenience upon 45 days written notice to Company, and Company may terminate these Terms for convenience upon 90 days written notice to Subscriber.
  3. In addition to any other remedies it may have, either party may also terminate these Terms upon 30 days’ notice (or with 10 days’ notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of these Terms, unless the breach is cured within the notice period.
  4. Upon any termination, Subscriber will pay in full for the Services up to and including the last day on which the Services are provided, and Company will make all User Data available to Subscriber for electronic retrieval for a period of 30 days, but thereafter, may, but is not obligated to, delete stored User Data. All sections of these Terms which by their nature should survive termination will survive termination.  Notwithstanding the foregoing, the Company may suspend Subscriber’s access to the Service at any time, without notice, if the Company reasonably believes that Subscriber’s use of the Service threatens economic or other harm to the Company, its customers, any third party, or the public.

7.  WARRANTY AND DISCLAIMER. Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, Company does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED.

8.  LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON OR A BREACH OF SECTION 4 OF THESE TERMS, EACH PARTY AND ITS SUPPLIERS OR SUBSCRIBERS, OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES (“LIABILITY PARTIES”) SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THESE TERMS OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; OR (C) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID OR PAYABLE BY SUBSCRIBER TO COMPANY FOR THE SERVICES UNDER THESE TERMS IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY (THE “GENERAL CAP”), IN EACH CASE, WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

9.  INDEMNIFICATION.

  1. By Subscriber. Subscriber agrees to defend, indemnify and hold harmless PODIO.XYZ and its subsidiaries, agents, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors (collectively, the “PODIO.XYZ Parties”), from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses  arising directly from a third party claim that: (a) the User Data, or Subscriber’s provision of the User Data to PODIO.XYZ for PODIO.XYZ’s use in accordance with these Terms, violates applicable law or such third party’s right; (b) results from PODIO.XYZ’s access to any third-party software or services authorized by Subscriber; or (c) results from Subscriber’s use of the Services in breach of these Terms. Subscriber will have the sole right to control the defense of any such claims, actions or proceedings by using counsel reasonably selected by Subscriber.  Subscriber shall further have the right to settle any such claims without PODIO.XYZ’s consent, provided such settlement provides: (i) a complete release of such claims in favor of the PODIO.XYZ Parties; (ii) does not admit guilt or liability on the part of the PODIO.XYZ Parties; and (iii) involves no obligation on the part of the PODIO.XYZ Parties other than the payment of money, with such sums paid in full by Subscriber. PODIO.XYZ’s right to indemnification shall be reduced to the extent Subscriber is actually prejudiced by PODIO.XYZs’ failure to promptly notify Subscriber of any such claims, actions, or proceedings upon becoming aware of the same.
  2. By PODIO.XYZ. PODIO.XYZ agrees to defend, indemnify and hold harmless Subscriber and its subsidiaries, agents, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors (collectively, the “Subscriber Parties”), from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses arising directly from a third party claim that: (a) the Services violate applicable law or any such third party’s right or (b) results from PODIO.XYZ’s breach of Section 4 of these Terms. PODIO.XYZ will have the sole right to control the defense  of any such claims, actions or proceedings by using counsel reasonably selected by PODIO.XYZ. PODIO.XYZ shall further have the right to settle any such claims without Subscriber’s consent, provided such settlement provides: (i) a complete release of such claims in favor of the Subscriber Parties; (ii) does not admit guilt or liability on the part of the Subscriber Parties; and (iii) involves no obligation on the part of the Subscriber Parties other than the payment of money, with such sums paid in full by PODIO.XYZ.. Subscriber’s right to indemnification shall be reduced to the extent PODIO.XYZ is actually prejudiced by Subscriber’s failure to promptly will use reasonable efforts to notify PODIO.XYZ of any such claims, actions, or proceedings upon becoming aware of the same.

10.  GOVERNING LAW. These Terms shall be governed by the internal substantive laws of the State of New York, without respect to its conflict of laws principles. The parties acknowledge that these Terms evidences a transaction involving interstate commerce. The parties hereby irrevocably submit to the exclusive personal jurisdiction of the state courts located in New York City, New York, and federal courts located in the Southern District of the State of New York for dispute arising from or related to these Terms.

11.  MISCELLANEOUS. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect and enforceable. These Terms is not assignable, transferable or sublicensable by either party except with the other party’s prior written consent. Notwithstanding the foregoing, either party may transfer and assign any of its rights and obligations under these Terms as part of a merger, acquisition, sale of substantially all assets, or similar transaction. These Terms, together with the Order Form, are the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. In the event of any conflict between the terms of the Order Form and the Terms of Service, the terms of the Order Form shall prevail. No agency, partnership, joint venture, or employment is created as a result of these Terms and Subscriber does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under these Terms, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under these Terms will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.