Effective Date: March 1, 2020
These Subscriber Terms (the “Agreement”) are entered into by and between Milestones Labs, LLC (“Milestones”) and you (“Subscriber”). This Agreement shall be effective on the earliest of (a) the date you signed a Subscription Order Form referencing or otherwise incorporating this Agreement; or (b) your use of the Service (the “Effective Date”). If you are entering into this Agreement on behalf of your organization, that organization is deemed to be the Subscriber and you represent that you have the power and authority bind that organization to this Agreement.
- Milestones shall make the Service purchased under the Subscription Order Form available to Subscriber pursuant to this Agreement during the applicable Subscription Term. The Service includes the features and functionality applicable to the version of the Service ordered by Subscriber. Milestones may update the content, functionality, and user interface of the Service from time to time in its sole discretion.
- Subscriber has a non-exclusive, non-sublicenseable, non-transferable (except as specifically permitted in this Agreement) right to access and use the Service pursuant to this Agreement during the applicable Subscription Term, solely for Subscriber’s internal business purposes subject to the limitations set forth in the Subscription Order Form.
- Subscriber shall not (a) make the Service available to, or use any Service for the benefit of, anyone other than it; (b) rent, sublicense, re-sell, assign, transfer, distribute, time share, or similarly exploit the Service; (c) reverse engineer, copy, modify, adapt, hack the Service, or otherwise attempt to gain unauthorized access to the Service or its related systems or networks; (d) access the Service to build a competitive product or service; (e) alter or remove, or permit any third party to alter or remove, any proprietary trademark or copyright markings incorporated in, marked on, or affixed to the Service; or (f) allow its Subscriptions to be shared to or used by unauthorized end users.
- Subscriber is responsible for use of the Service by it and its authorized end users and for their compliance with this Agreement. Subscriber is solely responsible for the accuracy, quality, legality, reliability, and appropriateness of all data inputted by it. Subscriber shall ensure that it is entitled to transfer its data to Milestones so that Milestones may lawfully use, process, and transfer Subscriber’s data in accordance with this Agreement on Subscriber’s behalf.
- If Subscriber’s use of the Service requires Subscriber to purchase any third party products and services, then Subscriber will be responsible for purchasing such third party products and services as well as payment for those third party products and services.
- EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS SECTION, TO THE FULLEST EXTENT PERMITTED BY LAW, THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND MILESTONES EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. SUBSCRIBER ACKNOWLEDGES THAT MILESTONES DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. MILESTONES IS NOT RESPONSIBLE FOR AND DISCLAIMS ALL LIABILITY RELATED TO DELAYS, DELIVERY FAILURES, INTERCEPTION, ALTERATION, OR OTHER DAMAGE RESULTING FROM MATTERS OUTSIDE OF ITS CONTROL, INCLUDING PROBLEMS INHERENT IN THE USE OF THE INTERNET, MOBILE AND PERSONAL COMPUTING DEVICES, TRANSMISSION OF ELECTRONIC COMMUNICATIONS OVER THE INTERNET OR OTHER NETWORKS, AND THIRD PARTY HOSTING SERVICE PROVIDERS.
- Fees and Payment
- Subscriber’s subscription fees are set forth in the applicable Subscription Order Form. Subscriber shall pay all fees when due and is responsible for providing complete and accurate billing information to Milestones. If such fees are being paid via credit card or other electronic means, Subscriber authorizes Milestones to charge such fees using Subscriber’s selected payment method. Payment obligations are non-cancelable and fees paid are non-refundable unless otherwise provided herein. Where Subscriber designates use of a third-party payment processor network (such as a payment agent, for example), Subscriber shall be responsible for payment of all fees and charges associated with use of such network. Milestones reserves the right to suspend Subscriber’s account, in addition to all of its other available rights and remedies, in the event that Subscriber’s account becomes overdue. Suspension shall not relieve Subscriber’s obligation to pay amounts due.
- Subscriber agrees that its subscription will automatically renew on an annual or monthly basis depending on the Subscription Order Form (the “Renewal Date”). Subscriber authorizes Milestones to automatically charge Subscriber for the applicable fees on or after the Renewal Date unless the Subscription has been terminated or cancelled in accordance with this Agreement. Subscriber must cancel its subscription prior to the Renewal Date in order to avoid billing of the next period’s subscription fees. If Subscriber chooses to cancel its subscription during the subscription term, Subscriber may use the Service until the end of its then-current subscription term or renewal period, but will not be issued a refund for the most recently (or any previously) charged fees.
- Term and Termination.
- This Agreement commences on the Effective Date and shall remain in effect until all subscriptions to the Service granted in accordance with this Agreement have expired or been terminated. Either party may terminate this Agreement (a) if the other party is in material breach of this Agreement and fails to cure such breach within thirty (30) days following receipt of written notice from the non-breaching party; or (b) as set forth in the Subscription Order Form, and where the Subscription Order Form is silent, then the Agreement may only be terminated at the end of its then-current subscription term or renewal period. Upon expiration or termination of this Agreement for any reason, all subscriptions and any other rights granted to Subscriber under this Agreement shall immediately terminate, and Milestones may immediately deactivate Subscriber’s account(s) associated with the Agreement. In no event will any termination relieve Subscriber of the obligation to pay any fees accrued or payable to Milestones.
- During the course of performance under this Agreement, each party may make available to the other party information that is not generally known to the public and at the time of disclosure is either identified as, or should reasonably be understood by the receiving party to be, proprietary or confidential (the “Confidential Information”). Confidential Information does not include information that (a) is or becomes publicly available without breach of this Agreement by the receiving party; (b) was known to the receiving party prior to its disclosure by the disclosing party; (c) is or was independently developed by the receiving party without the use of any Confidential Information of the disclosing party; or (d) is or was lawfully received by the receiving party from a third party under no obligation of confidentiality.
- Except as otherwise expressly permitted under this Agreement, with the express prior written consent of the disclosing party, or as required by law, the receiving party will not disclose, transmit, or otherwise disseminate to a third party any Confidential Information of the disclosing party. The receiving party may disclose the disclosing party’s Confidential Information to its employees, Affiliates, consultants, subcontractors, agents, or advisors (“Representatives”) who have a strict need to access the Confidential Information for the purpose of performing under this Agreement.
- The receiving party acknowledges that the remedy at law for breach of this Section may be inadequate and that, in addition to any other remedy the disclosing party may have, it shall be entitled to seek equitable relief, including, without limitation, an injunction or injunctions (without the requirement of posting a bond or proving any actual damages), to prevent breaches or threatened breaches of this Section by the receiving party or any of its Representatives and to enforce the terms and provisions of this Section in addition to any other remedy to which the disclosing party is entitled at law or in equity.
- Subscriber agrees that it shall not use the Service to send or store personal information subject to special regulatory or contractual handling requirements (e.g., Payment Card Industry Data Security Standards, the Gramm-Leach-Bliley Act, the Health Insurance Portability and Accountability Act, and any similar data protection laws) including without limitation: credit card information, credit card numbers and magnetic stripe information, social security numbers, driver’s license numbers, passport numbers, government issued identification numbers, health-related information, biometric data, financial account information, personally identifiable information collected from children under the age of 13 or from online services directed toward children, and real time geo-location data which can identify an individual.
- Intellectual Property Rights
- Milestones owns and will continue to own all right, title, and interest, including all related Intellectual Property Rights, in and to its Confidential Information and the Service, including any enhancements, customizations, or modifications thereto.
- Subscriber shall defend Milestones, its Affiliates, and their employees, officers, and directors (together, the “Milestones Indemnified Parties”) from and against third party claims, actions, and demands arising from allegations that data of Subscriber, unauthorized use of the Service by Subscriber or its end users, or Milestones’ processing of data pursuant to Subscriber’s instructions infringes a third party’s Intellectual Property Right or privacy right (each, a “Claim Against Milestones”), and Subscriber shall indemnify and hold the Milestones Indemnified Parties harmless against any damages, reasonable attorneys’ fees, and costs finally awarded against Milestones Indemnified Parties as a result of, or for any amounts paid by the Milestones Indemnified Parties under a Subscriber-approved settlement of, a Claim Against Milestones.
- Milestones shall defend Subscriber from and against third party claims, actions, and demands alleging that Subscriber’s authorized use of the Service infringes or misappropriates any copyright, trade secret, U.S. patent, or trademark right of that third party (each, a “Claim Against Subscriber”), and Milestones shall indemnify and hold Subscriber harmless against any damages, reasonable attorneys’ fees, and costs finally awarded against Subscriber as a result of, or for any amounts paid by Subscriber under an Milestones-approved settlement of, a Claim Against Subscriber; provided, however, in no event will Milestones have any obligations or liability under this Section to the extent a Claim Against Subscriber arises from: (a) Subscriber or its end user’s use of the Service other than as permitted under this Agreement; or (b) use of the Service in a modified form or in combination with products, services, content, or data not furnished to Subscriber by Milestones.
- EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS HEREIN, IN NO EVENT SHALL EITHER PARTY’S OR ITS AFFILIATES’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY SUBSCRIBER HEREUNDER IN THE 12 MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY.
- IN NO EVENT SHALL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES, OR LOSS OF USE, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY AND WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
- The Service is controlled and operated by Milestones from its offices in the United States of America. Except as explicitly set forth herein, Milestones makes no representations that the Services are appropriate for use in other jurisdictions. Those who access or use the Service from other jurisdictions do so at their own risk and are responsible for compliance with local laws.
- This Agreement and any disputes arising under it will be governed by the laws of the State of Texas without regard to its conflict of laws provisions, and each party consents to the personal jurisdiction and venue of the state or federal courts located in Austin, Texas. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
- The parties agree that any and all disputes arising out of or in any way relating to this Agreement, including without limitation its existence, validity or termination, shall be resolved according to Texas law and exclusively by binding arbitration before a single arbitrator with the American Arbitration Association and pursuant to their then existing arbitration rules. The place of the arbitration will be Austin, Texas unless otherwise agreed upon by the parties. The arbitration will be conducted in English. The arbitrator shall provide detailed written findings of fact and conclusions of law in support of any award. Judgment upon any such award may be enforced in any court of competent jurisdiction. The parties further agree that the arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. Notwithstanding the foregoing, either party shall be entitled to seek injunctive relief to stop unauthorized use of the Service or infringement of Intellectual Property Rights. The parties further agree that the prevailing party in any action or proceeding to enforce any right or provisions under this Agreement, including any arbitration or court proceedings, will be entitled to recover its reasonable costs and attorneys’ fees.
- Milestones may give general notices related to the Service that are applicable to all customers by email, text, in-app notifications, or by posting them on the Milestones website or through the Service and such electronic notices shall be deemed to satisfy any legal requirement that such notices be made in writing. Other notices must be sent via email, first class, airmail, or overnight courier to the addresses of the parties provided herein or via a Subscription Order Form and are deemed given when received. Notices to Milestones must be sent to 925 S Capital of Texas Hwy, Austin, TX 78746.
- Milestones shall not be liable for delayed or inadequate performance of its obligations hereunder to the extent caused by a condition that is beyond Milestones’ reasonable control, including but not limited to natural disaster, pandemic, civil disturbance, acts of terrorism or war, labor conditions, governmental actions, interruption or failure of the Internet or any utility service, failures in third-party hosting services, and denial of service attacks (each a “Force Majeure Event”). Milestones shall be relieved from its obligations (or part thereof) as long as the Force Majeure Event lasts and hinders the performance of said obligations (or part thereof).
- Neither this Agreement nor any of the rights and licenses granted under this Agreement may be transferred or assigned by either party without the other party’s express written consent (not to be unreasonably withheld or delayed); provided, however, that either party may assign this Agreement and all Subscription Order Forms under this Agreement upon written notice without the other party’s consent to an affiliate or to its successor in interest in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the non-assigning party. Any other attempt to transfer or assign this Agreement will be null and void. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors, and permitted assigns.
- Milestones may revise this Agreement from time to time by posting the modified version on its website. By continuing to access or use the Service after the posted effective date of modifications to this Agreement, Subscriber agrees to be bound by the revised version of the Agreement.
- This Agreement, including all attachments, exhibits, addendums, and any Subscription Order Form(s) hereunder, constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes and replaces any prior or contemporaneous representations, understandings and agreements, whether written or oral, with respect to its subject matter. The parties are not relying and have not relied on any representations or warranties whatsoever regarding the subject matter of this agreement, express or implied, except for the representations and warranties set forth in this Agreement. To the extent of any conflict or inconsistency between the provisions of the Agreement and any Subscription Order Form, the Agreement shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in a purchase order, vendor onboarding process, web portal, or any other documentation created by Subscriber shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
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See it in action
Get a demo, then test drive Milestones for your business.
See it in action
Get a demo, then test drive Milestones for your business.