Terms of Service
Acceptance of Terms
PLEASE CAREFULLY READ THESE TERMS OF SERVICE (“TERMS”) CAREFULLY BEFORE USING THE PARABOL PRODUCTS (AS DEFINED BELOW) OFFERED BY PARABOL, INC. (“PARABOL”). BY MUTUALLY EXECUTING ONE OR MORE ORDER FORMS WITH PARABOL WHICH REFERENCE THESE TERMS (EACH, AN “ORDER FORM”), YOU OR THE ENTITY YOU REPRESENT (“CUSTOMER”) AGREE TO BE BOUND BY THESE TERMS (TOGETHER WITH ALL ORDER FORMS, THE “AGREEMENT”) TO THE EXCLUSION OF ALL OTHER TERMS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ENTERPRISE CUSTOMER (AS DEFINED BELOW), YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO AGREE TO THESE TERMS ON BEHALF OF SUCH ENTERPRISE CUSTOMER AND TO BIND SUCH ENTERPRISE CUSTOMER TO THESE TERMS. IN ADDITION, ANY ONLINE ORDER FORM WHICH YOU SUBMIT VIA PARABOL’S STANDARD ONLINE PROCESS AND WHICH IS ACCEPTED BY PARABOL SHALL BE DEEMED TO BE MUTUALLY EXECUTED. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS.
Effective September 24th, 2021
- USERS, ORDER FORMS, PARABOL PRODUCTS AND IMPLEMENTATION
- Parabol allows both individual users (“Individual Customers”) and entities (“Enterprise Customers”) to create an account through Parabol’s websites and mobile applications to access the Parabol Products (an “Account”). “Customer” as used herein refers to either Individual Customers or Enterprise Customers, as applicable. Individual Customers acknowledge and agree that if such Customer signed up for an Account using an email associated with an employer who enters into or currently has an agreement for the Parabol Products with Parabol (an “Employer Agreement”), such Individual Customer’s Account may be merged with or subsumed by their employer’s Account (an “Employer Account Transfer”), at which point this Agreement will terminate with respect to such Individual Customer and any further use of the Parabol Products will be pursuant to the applicable Employer Agreement.
- Upon mutual execution, each Order Form shall be incorporated into and form a part of the Agreement. For each Order Form, subject to Customer’s compliance with the terms and conditions of this Agreement (including any limitations and restrictions set forth on the applicable Order Form) Parabol grants Customer a nonexclusive, limited, personal, nonsublicensable, nontransferable right and license to internally access and use the Parabol product(s) and/or service(s) specified in such Order Form (collectively, the “Parabol Product,” or “Parabol Products”) during the applicable Term (as defined below) for either the internal business or personal purposes of Customer, as applicable, in accordance with Section 1.1 hereof.
- Upon payment of any applicable fees set forth in each Order Form, Parabol agrees to use reasonable commercial efforts to provide standard implementation assistance for the Parabol Products only if and to the extent such assistance is set forth on such Order Form (“Implementation Assistance”).
- SUPPORT AND SERVICE LEVELS
Subject to the terms hereof, Parabol will use commercially reasonable efforts to provide support, maintenance service and uptime for each Parabol Product and, if Customer is an Enterprise Customer, in accordance with Parabol’s then-current Service Level Terms that are set forth at https://www.parabol.co/terms/sl.
- Customer shall be responsible for maintaining the security of Customer’s Account, password(s) (including but not limited to administrative and user passwords, if applicable) and files, and for all uses of Customer account with or without Customer’s knowledge or consent.
- Enterprise Customers shall cooperate with Parabol in establishing a password or other procedures for verifying that only designated employees of Customer have access to any administrative functions of the Parabol Products.
- RESTRICTIONS AND RESPONSIBILITIES
- Customer will not (and will not permit any third party to), directly or indirectly: (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 Parabol Products or any software, documentation or data related to the Parabol Products (“Software”) (except to the extent such restriction is prohibited by applicable law); (ii) reproduce, duplicate, copy, modify, translate, or create derivative works based on the Parabol Products or any Software (except to the extent expressly permitted by Parabol or authorized within the Parabol Products); (iii) sell, resell, use the Parabol Products or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; (iv) remove, deface, obscure or alter any proprietary notices or labels; (v) use the Parabol Products to build an application or product that is competitive with any Parabol product or service; (vi) interfere or attempt to interfere with the proper working of the Parabol Products or any activities conducted on the Parabol Product; (vii) bypass any measures Parabol may use to prevent or restrict access to the Parabol Products (or other accounts, computer systems or networks connected to the Parabol Product); or (ix) use the Parabol Products in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable laws or regulations (including but not limited to any privacy laws, export control laws of the United States and laws or regulations concerning intellectual property, consumer and child protection, obscenity or defamation).
- Although Parabol has no obligation to monitor Customer’s use of the Parabol Products, Parabol may do so and may prohibit any use of the Parabol Products it reasonably believes may be (or alleged to be) in violation of the foregoing.
- Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Parabol Products, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
- PROPRIETARY RIGHTS
- Customer shall own all right, title and interest in and to any data, information or other material provided, uploaded, or submitted by Customer in the course of using the Parabol Products (“Customer Data”). Parabol shall own and retain all right, title and interest in and to (a) the Parabol Products and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Assistance or support, and (c) all intellectual property rights related to any of the foregoing.
- Customer, not Parabol, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data. Customer represents and warrants that it has all rights necessary to provide the Customer Data to Parabol as contemplated hereunder, in each case without any infringement, violation or misappropriation of any third party rights (including, without limitation, intellectual property rights and rights of privacy).
- Customer agrees that it shall not provide any information to Parabol that is considered (i) “personal health information,” as defined under the Health Insurance Portability and Accountability Act, unless Customer has entered into a separate agreement with Parabol relating to the processing of such data; (ii) government issued identification numbers, including Social Security numbers, drivers’ license numbers or other state-issued identification numbers; (iii) financial account information, including bank account numbers; (iv) payment card data, including credit card or debit card numbers; or (v) “sensitive” personal data, as defined under the European Union’s General Data Protection Regulation or any other applicable data privacy law, including racial or ethnic origin, political opinions, religious beliefs, trade union membership, physical or mental health or condition, sexual life or the commission or alleged commission any crime or offense.
- Customer may (but is not obligated to) provide suggestions, comments or other feedback to Parabol with respect to the Parabol Products (“Feedback”). Feedback, even if designated as confidential by Customer, shall not create any confidentiality obligation for Parabol notwithstanding anything else. Parabol acknowledges and agrees that all Feedback is provided “AS IS” and without warranty of any kind. Customer shall, and hereby does, grant to Parabol a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose.Customer agrees and acknowledges that Customer Data may be irretrievably deleted if Customer’s account is ninety (90) days or more delinquent. Notwithstanding anything to the contrary, Customer acknowledges and agrees that Parabol may (i) internally use and modify (but not disclose) Customer Data for the purposes of (A) providing the Parabol Products to Customer, (B) testing, improving and operating Parabol’s products and services, and (C) generating Aggregated Anonymous Data (as defined below), and (ii) freely use and make available Aggregated Anonymous Data for Parabol’s business purposes (including without limitation, for purposes of improving, testing, operating, promoting and marketing Parabol’s products and services). “Aggregated Anonymous Data” means data submitted to, collected by, or generated by Parabol in connection with Customer’s use of the Parabol Products, but only in aggregate, anonymized form which can in no way be linked specifically to Customer. No rights or licenses are granted except as expressly set forth herein.
- To the extent that the Customer Data includes any personal data, (i) Parabol will process, retain, use, and disclose such personal data only as necessary to provide the Parabol Products hereunder, which constitutes a business purpose, and (ii) Parabol agrees not to sell such personal data, to retain, use, or disclose such personal data for any commercial purpose other than providing the Parabol Products, or to retain, use, or disclose such personal data outside of the scope of this Agreement, provided that none of the foregoing shall prevent Parabol from transferring an Individual Customer’s Account and sharing an Individual Customer’s Data with an applicable Enterprise Customer employer in connection with an Employer Account Transfer, which Customer Data may then be used by such Enterprise Customer in accordance with the applicable Employer Agreement. Parabol understands its obligations under applicable data protection laws and will comply with them.
- PAYMENT OF FEES AND AUDIT
- Customer will pay Parabol the fees described in the Order Form for the Parabol Products and, if applicable, for the Implementation Assistance, in accordance with the terms therein (the “Fees”). If Customer’s use of the Parabol Products exceeds the Service Capacity set forth on the Order Form, Parabol reserves the right to limit Customer’s usage and Parabol may provide Customer with a quote for the additional capacity allowance . Parabol reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Term or the current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Parabol has billed Customer incorrectly, Customer must contact Parabol in order to receive an adjustment or credit. Inquiries should be directed to Parabol’s customer support department.
- Parabol will bill Customer through an invoice. Full payment for invoices issued in any given month must be received by Parabol thirty (30) days after the date of receipt of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of the Agreement if payment has not been made within fourteen (14) days after receipt of notice of late payment. Customer shall be responsible for all taxes associated with Parabol Products other than U.S. taxes based on Parabol’s net income.
- TERM AND TERMINATION
- Subject to earlier termination as provided below or in Section 1.1, unless otherwise set forth in an Order Form, this Agreement is for the Initial Term as specified in the Order Form (and if not specified, the Initial Term is (i) one (1) year for Enterprise Customers and (ii) one (1) month for Individual Customers), and shall be automatically renewed for additional periods of the same duration as the Initial Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
- In addition to any other remedies it may have, either party may terminate this Agreement: (a) on thirty (30) days’ prior written notice if the other party materially breaches any of the terms of this Agreement and such breach remains uncured thirty (30) days following such party’s receipt of the terminating party’s notice (subject to any shorter time limitations as are set forth in the Agreement, including, but not limited to, Section 6.2 for late payment); (b) immediately on written notice if: (i) all or substantially all of the assets of the other party are transferred to an assignee for the benefit of creditors, to a receiver or trustee in bankruptcy; (ii) a proceeding is commenced by or against the other party for relief under bankruptcy or similar laws and such proceeding is not dismissed within ninety (90) days; or (iii) the other party is adjudged bankrupt or insolvent. Customer will pay in full for the Parabol Products up to and including the last day on which the Parabol Products are provided. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
- If this Agreement has terminated other than in connection with an Employer Account Transfer, Customer’s Account will be disabled and Customer may not be granted access to Customer’s Account or any files or other content (including Customer Data) contained in Customer’s Account. After termination of this Agreement, except for if Customer’s content and files have been transferred in connection with an Employer Account Transfer, Customer may request that Parabol delete all content and files contained in Customer’s Account, and Parabol shall use reasonable efforts to do so. Parabol reserves the right to maintain residual copies of Customer Data for backup purposes. Parabol may also withdraw and at its discretion reallocate the public web address of Customer’s Account.
- THIRD PARTY SERVICES
Customer acknowledges and agrees that the Parabol Products may contain links or connections to third party websites or services that are not owned or controlled by Parabol (“Third Party Services”). Parabol is not responsible for the operation of any Third Party Services nor the availability or operation of the Parabol Products to the extent such availability and operation is dependent upon Third Party Services. Customer is solely responsible for procuring any and all rights necessary for it to access Third Party Services and for complying with any applicable terms or conditions thereof. Parabol does not make any representations or warranties with respect to Third Party Services or any third party providers. Any exchange of data or other interaction between Customer and a third party provider is solely between Customer and such third party provider and is governed by such third party’s terms and conditions.
- WARRANTY AND DISCLAIMER
Parabol shall use reasonable efforts consistent with prevailing industry standards to maintain the Parabol Products in a manner which minimizes errors and interruptions in the Parabol Products and shall perform the Implementation Assistance in a professional and workmanlike manner. While the Parabol Products may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Parabol or by third-party providers, or because of other causes beyond Parabol’s reasonable control, Parabol shall use reasonable efforts to provide advance notice in writing or by email of any scheduled service disruption. SUBJECT TO THE ABOVE, PARABOL DOES NOT WARRANT THAT THE PARABOL PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE PARABOL PRODUCTS. THE PARABOL PRODUCTS SHOULD NOT BE USED, AND ARE NOT LICENSED FOR, USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS, INCLUDING WITHOUT LIMITATION OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION/COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, AND LIFE SUPPORT OR WEAPONS SYSTEMS. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE PARABOL PRODUCTS AND IMPLEMENTATION ASSISTANCE IS PROVIDED “AS IS” AND PARABOL DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
Enterprise Customers and Parabol (each, an “Indemnitor”) shall defend, indemnify, and hold harmless the other party, its affiliates and each of its and its affiliates’ employees, contractors, directors, suppliers and representatives (collectively, the “Indemnitee”) from all liabilities, claims, and expenses paid or payable to an unaffiliated third party (including reasonable attorneys’ fees) (“Losses”), that arise from or relate to any claim that (i) Customer’s use of the Parabol Products and Customer’s Account (in the case of Customer as Indemnitor), or (ii) the Parabol Products (in the case of Parabol as Indemnitor), infringes, violates, or misappropriates any third party intellectual property or proprietary right. Each Indemnitor’s indemnification obligations hereunder shall be conditioned upon the Indemnitee providing the Indemnitor with: (i) prompt written notice of any claim (provided that a failure to provide such notice shall only relieve the Indemnitor of its indemnity obligations if the Indemnitor is materially prejudiced by such failure); (ii) the option to assume sole control over the defense and settlement of any claim (provided that the Indemnitee may participate in such defense and settlement at its own expense); and (iii) reasonable information and assistance in connection with such defense and settlement (at the Indemnitor’s expense). Parabol will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Parabol Products (i) not supplied by Parabol (including, without limitation, any Customer Data), (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Parabol, (iv) combined with other products, processes or materials not provided by Parabol where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Parabol Products is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Parabol Products are held by a court of competent jurisdiction to be or are believed by Parabol to be infringing, Parabol may, at its option and expense (a) replace or modify the Parabol Products to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Parabol Product, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Parabol Product.
- LIMITATION OF LIABILITY
EXCEPT FOR THE PARTIES’ INDEMNIFICATION OBLIGATIONS AND FOR CUSTOMER’S BREACH OF SECTION 4, AND EXCEPT FOR BODILY INJURY OF A PERSON, IN NO EVENT SHALL EITHER PARTY, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT 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; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE PARABOL PRODUCTS UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Neither party may assign any of its rights or obligations hereunder without the other party’s written consent; provided that (i) for Individual Customers, Parabol may transfer the Customer Data (or portion thereof) as set forth in Section 1.1 hereof (ii) either party may assign all of its rights and obligations hereunder without such consent to a successor-in-interest in connection with a sale of substantially all of such party’s business relating to this Agreement, and (iii) Parabol may utilize subcontractors in the performance of its obligations hereunder. This Agreement is 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 this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. To the extent these Terms conflict with an Order Form, the Order Form shall prevail. Except for payment obligations, neither party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such party’s reasonable control, including, without limitation, the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes lock-outs or labor disruptions; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts. You acknowledge that any use of the Parabol Products contrary to this Agreement, or any transfer, sublicensing, copying or disclosure of technical information or materials related to the Parabol Products, may cause irreparable injury to Parabol, its affiliates, suppliers and any other party authorized by Parabol to resell, distribute, or promote the Parabol Products (“Resellers”), and under such circumstances Parabol, its affiliates, suppliers and Resellers will be entitled to equitable relief, without posting bond or other security, including, but not limited to, preliminary and permanent injunctive relief. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Parabol in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement 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. Notices must be sent to the contacts listed for each party in the Order Form. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions, and the parties consent to exclusive jurisdiction and venue in the state and federal courts located in Los Angeles, California. Customer otherwise agrees to reasonably cooperate with Parabol to serve as a reference account upon request. The failure of either party to act with respect to a breach of this Agreement by the other party shall not constitute a waiver and shall not limit such party’s rights with respect to such breach or any subsequent breaches.