Terms of Service
The following are the Terms of Service (“Agreement”) of the Chirk HR service (“Service”), a product of Little Stream Software LLC (“Vendor”).
BY USING THE SERVICE, YOU (the terms “you”, “yours”, “Customer” includes the person or entity that is registered with the Service as well as any third parties accessing the Service on your behalf) ARE STATING THAT YOU AGREE TO BE BOUND BY ALL OF THESE TERMS AND CONDITIONS OF THE SERVICE (“Agreement”). The Service is offered to you conditioned on your acceptance without modification of the terms, conditions, and notices contained herein.
The following definitions (and additional definitions provided below) will apply:
- 1.1 “Effective Date” means the date you sign up for an account on the Service.
- 1.2.”Customer” means the legal entity or individual that registered with the Service as well as any third parties accessing the Service on your behalf.
- 1.3.”Customer Data” means data, information or material provided or submitted by Customer or any User to Vendor in the course of utilizing the Service.
- 1.4.”Customer Representative” means the Users designated by Customer as authorized to create User accounts, administer Customer’s use of the Service and otherwise represent Customer for the purpose of this Agreement.
- 1.5.”Pricing Schedule” means the schedule of Service Plans posted to the Service website.
- 1.6.”Service” means Vendor’s online service as described in Schedule B and applicable documentation on Vendor’s web site.
- 1.7.”Term” means the term of this Agreement as specified in Section 19.
- 1.8.”Vendor Content” means Vendor-supplied text, audio, video, graphics and other information and data available by means of the Service or on Vendor’s web site.
- 1.9 “Service Plan” means the plan you selected for your account.
2.Customer Use of the Service
2.1.Vendor grants Customer a license to access and use the Service during the Term via the Internet under and subject to the terms of this Agreement. Vendor will host the Service. Vendor reserves the right to make changes and updates to the functionality and/or documentation of the Service from time to time.
2.2.Customer is licensed during the Term to store, print, and display the Vendor Content and to permit Users to access it only in connection with use of the Service. No other use of Vendor Content is permitted.
3.Number of Authorized Users
Customer is initially authorized to permit use by the number of Users listed in the Pricing Schedule. Customer, by its Customer Representative, may add to the number of Users by changing the current Service Plan by contacting Vendor customer support by email or by utilizing applicable management features of the Service. Customer will be bound by the instructions and authorizations provided by its Customer Representative.
Customer agrees to pay fees as set forth in the Pricing Schedule or as Vendor and Customer otherwise agree in writing.
5.User-Based Fees; Payment
5.1.Subject to the fee structure and calculations stated in the Pricing Schedule, license fees are due for the Service based on the Service Plan. A User is considered billable if his or her account (with a username and password) is available for login at the time of billing. Customer agrees that charges will apply for all billable User accounts including those that have been inactive during a particular month. A User account may not be shared or used by more than one person.
5.2.Vendor will invoice monthly for use of the Service at the anniversary of each month. All invoices for any charges under this Agreement are due upon receipt. For customers paying via credit card, customer’s credit card is charged simultaneously with the creation of the customer’s invoice. Customer’s account will be considered delinquent (in arrears) if payment in full is not received within 30 days of the invoice date. Amounts due are exclusive of all applicable taxes, levies, or duties, and Customer will be responsible for payment of all such amounts. All amounts are payable in U.S. dollars. If Customer believes that any specific charge under this Agreement is incorrect, in order to obtain a credit, Customer must contact Vendor in writing within 30 days of invoice date setting forth the nature and amount of the requested correction; otherwise invoices are final.
In addition to other applicable remedies, Vendor reserves the right to suspend and/or terminate Customer’s access to the Service and/or terminate this Agreement, upon five days’ email notice, if Customer’s account becomes delinquent (falls into arrears).
7.Account Information Submitted to Vendor
Customer agrees to provide Vendor with billing and contact information as Vendor may reasonably require, including Customer’s legal company name, street address, email address, and name and telephone number of an authorized billing contact, as well as the name, User name and password of the Customer Representative. Customer agrees to update this information promptly by means of email to help AT chirkhr DOT com, and in any case within 15 days, if there is any change.
8.Appropriate Use of the Service
8.1.While Users may be any persons that Customer authorizes to use the Service for its business, including, but not limited to, Customer’s employees and contractors, Customer may not sublicense, resell or supply the Service for use in or for the benefit of any other organization, entity, business, or enterprise without Vendor’s prior written consent.
8.2.Customer agrees not to submit to the Service any material that is illegal, misleading, defamatory, indecent or obscene, in poor taste, threatening, infringing of any third party proprietary rights, invasive of personal privacy, or otherwise objectionable (collectively “Objectionable Matter”). Customer will be responsible to ensure that its Users do not submit any Objectionable Matter. In addition, Vendor may, at its option, adopt rules for permitted and appropriate use and may update them from time to time on the Vendor web site; Customer and Customer’s Users will be bound by any such rules. Vendor reserves the right to remove any Customer Data that constitutes Objectionable Matter or violates any Vendor rules regarding appropriate use, but is not obligated to do so. Customer and Customer’s Users will comply with all applicable laws regarding Customer Data, use of the Service and the Vendor Content, including laws involving private data and any applicable export controls. Vendor reserves the right to terminate this Agreement for cause in case the Customer materially breaches the provisions of this Section 8.
8.3.Vendor reserves the right to suspend or terminate immediately any Customer or User account or activity that is disrupting or causing harm to Vendor’s computers, systems or infrastructure or to other parties, or is in violation of state or federal laws regarding “spam,” including, without limitation, the CAN-SPAM Act of 2003. Any such spamming activity by Customer will be a material breach of this Agreement.
9.Passwords and Access
Customer is responsible for all activities that occur under Customer’s User accounts. Customer is responsible for maintaining the security and confidentiality of all User usernames and passwords. Customer agrees to notify Vendor immediately of any unauthorized use of any Service username or password or account or any other known or suspected breach of security.
10.1.All Customer Data submitted by Customer to Vendor, whether posted by Customer or by Users, will remain the sole property of Customer or such Users to the full extent provided by law.
10.2.Customer will have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness of and copyright permissions for all Customer Data. Vendor will not use the Customer Data for any purpose other than to provide the Service to Customer and for statistical reporting purposes. Vendor may aggregate anonymous statistical data regarding use and functioning of its system by its various Users. Such aggregated statistical data will be the sole property of Vendor.
10.3.Vendor will use commercially reasonable security measures to protect Customer Data against unauthorized disclosure or use. Vendor’s security policies in effect from time to time can be accessed on Vendor’s web site.
11.Limited License to Customer Data
Subject to the terms and conditions of this Agreement, Customer grants to Vendor a non-exclusive license to use, copy, store, transmit and display Customer Data to the extent reasonably necessary to provide and maintain the Service.
Vendor and its suppliers retain all rights in the Service and Vendor Content. This Agreement grants no ownership rights to Customer. No license is granted to Customer except as to use of the Service as expressly stated herein. The Vendor name, the Vendor logo, and the product names associated with the Service are trademarks of Vendor or third parties, and they may not be used without Vendor’s prior written consent.
13.Restrictions on Use of the Service
Customer may not alter, resell or sublicense the Service or provide it as a service bureau. Customer agrees not to reverse engineer the Service or its software or other technology. Customer will not use or access the Service to: (i) build a competitive product or service, (ii) make or have made a product using similar ideas, features, functions or graphics of the Service, (iii) make derivative works based upon the Service or the Vendor Content or (iv) copy any features, functions or graphics of the Service or the Vendor Content. Customer will not “frame” or “mirror” the Service. Use, resale or exploitation of the Service and/or the Vendor Content except as expressly permitted in this Agreement is prohibited.
Vendor agrees to implement its privacy policies in effect from time to time. Vendor’s privacy policies can be accessed on Vendor’s web site. Vendor reserves the right to modify its privacy and security policies from time to time in its business judgment and as it deems required for compliance with applicable law.
15.Warranty Regarding the Service
Vendor warrants that the Service will perform in all material respects to the functionality as described in applicable online user documentation available via Vendor’s web site.
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Customer represents and warrants that it has not falsely identified itself or provided any false information to gain access to the Service and that Customer’s billing information is correct.
17.1.Vendor will defend, indemnify, and hold Customer (and its officers, directors, employees and agents) harmless from and against all costs, liabilities, losses, and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) arising from any third party claim, suit, action, or proceeding arising from the actual or alleged infringement of any United States copyright, patent, trademark, or misappropriation of a trade secret by the Service or Vendor Content (other than that due to Customer Data). In case of such a claim, Vendor may, in its discretion, procure a license that will protect Customer against such claim without cost to Customer, replace the Service with a non-infringing Service, or if it deems such remedies not practicable, Vendor may terminate the Service and this Agreement without fault, provided that in case of such a termination, Customer will receive a pro-rata refund of the license fees prepaid for use of the Service not yet furnished as of the termination date. THIS SECTION STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES FOR INFRINGEMENT OR CLAIMS ALLEGING INFRINGEMENT.
17.2.Customer will defend, indemnify, and hold Vendor (and its officers, directors, employees and agents) harmless from and against all Losses arising out of or in connection with a claim, suit, action, or proceeding by a third party (i) alleging that the Customer Data or other data or information supplied by Customer infringes the intellectual property rights or other rights of a third party or has caused harm to a third party or (ii) arising out of breach of Sections 8 (Appropriate Use of the Service) or 9 (Passwords and Access) above.
17.3.Customer will defend, indemnify, and hold Vendor (and its officers, directors, employees and agents) harmless from any expense or cost arising from any third party subpoena or compulsory legal order or process that seeks Customer Data and/or other Customer-related information or data, including, without limitation, prompt payment to Vendor of all costs (including attorneys’ fees) incurred by Vendor as a result. In case of such subpoena or compulsory legal order or process, Customer also agrees to pay Vendor for its staff time in responding to such third party subpoena or compulsory legal order or process at Vendor’s then applicable hourly rates.
17.4.In case of any claim that is subject to indemnification under this Agreement, the party that is indemnified (“Indemnitee”) will provide the indemnifying party (“Indemnitor”) reasonably prompt notice of the relevant claim. Indemnitor will defend and/or settle, at its own expense, any demand, action, or suit on any claim subject to indemnification under this Agreement. Each party will cooperate in good faith with the other to facilitate the defense of any such claim and will tender the defense and settlement of any action or proceeding covered by this Section to the Indemnitor upon request. Claims may be settled without the consent of the Indemnitee, unless the settlement includes an admission of wrongdoing, fault or liability.
18.Disclaimers and Limitations
18.1.THE WARRANTIES EXPRESSLY STATED IN THIS AGREEMENT ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY VENDOR. THERE ARE NO OTHER WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS STATED IN SECTIONS 15 AND 16 ABOVE, THE SERVICE AND VENDOR CONTENT ARE PROVIDED TO CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICE OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR CUSTOMER’S PURPOSES. VENDOR DOES NOT WARRANT THAT USE OF THE SYSTEM WILL BE ERROR-FREE OR UNINTERRUPTED. VENDOR IS NOT RESPONSIBLE FOR SOFTWARE INSTALLED OR USED BY CUSTOMER OR USERS OR FOR THE OPERATION OR PERFORMANCE OF THE INTERNET.
18.2.Except with regard to Customer’s payment obligations and with regard to either party’s indemnification obligations, in no event will either party’s aggregate liability exceed the license fees due for the 12 month period measured by the monthly payment obligation at the time of the event or circumstance giving rise to such claim. Except in regard to Customer breach of Sections 8 or 9, in no event will either party be liable for any indirect, special, incidental, consequential damages of any type or kind (including, without limitation, loss of data, revenue, profits, use or other economic advantage).
19.Term and Termination
19.1.The Term commences on the “Effective Date.” Billing of monthly license fees will start as of the Effective Date and thereafter.
19.2.Vendor, in its sole discretion, may suspend or terminate Customer’s username and password, account, or use of the Service and/or terminate this Agreement if Customer materially breaches this Agreement and such breach has not been cured within 10 business days of notice of such breach.
19.3.In the event that this Agreement is terminated (for any reason), Vendor will, within 5 days of a Customer’s request, make available one backup of the Customer Data in Vendor’s standard format. Customer agrees and acknowledges that Vendor has no obligation to retain and may delete Customer Data that remains in Vendor’s possession or control more than 60 days after termination.
Vendor may give notice by means of electronic mail to Customer’s email address on record in Customer’s account or by written communication sent by first class mail or by courier service to Customer’s address on record in Customer’s account. Such notice will be deemed to have been given upon the expiration of 36 hours after mailing (if sent by first class mail) or sending by courier or 12 hours after sending (if sent by email), or, if earlier, when received. Customer may give notice to Vendor by email at help AT chirkhr DOT com. A party may, by giving notice, change its applicable address, email, or other contact information.
This Agreement may not be assigned by Customer without the prior written approval of Vendor but may be assigned by Vendor to (i) a parent or subsidiary, (ii) an acquirer of all or substantially all of Vendor’s assets involved in the operations relevant to this Agreement, or (iii) a successor by merger or other combination. Any purported assignment in violation of this Section will be void. This agreement may be enforced by and is binding on permitted successors and assigns.
Any dispute arising under this Agreement or the termination of this Agreement will be subject to arbitration in the city of Portland, Oregon; under the commercial rules of the American Arbitration Association before a single arbitrator. The parties will share the arbitration fees equally. Any award will be enforceable in any court of competent jurisdiction and will not be inconsistent with the terms of this agreement. Nothing herein will prevent a party’s application to a court of law for injunctive relief to prevent irreparable harm.
23.1.Choice of Law; Jurisdiction. This Agreement will be interpreted fairly in accordance with its terms, without any strict construction in favor of or against either party and in accordance with the laws of the State of Oregon applicable US federal law. Except as provided in the arbitration clause, the state and federal courts located in the city of Portland, OR will have exclusive jurisdiction and venue over any dispute or controversy arising from or relating to this Agreement or its subject matter.
23.2.Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) will be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
23.3.No Agency. No joint venture, partnership, employment, or agency relationship exists between Customer and Vendor as a result of this Agreement or use of the Service.
23.4.No Waiver. The failure of Vendor to enforce any right or provision in this Agreement will not constitute a waiver of such right or provision unless acknowledged and agreed to by Vendor in writing.
23.5.Force Majeure. Except for the payment by Customer, if the performance of this Agreement by either party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God or any other causes beyond the control of such party, that party will be excused from such to the extent that it is prevented, hindered or delayed by such causes.
23.6.Entire Agreement. This Agreement, together with any applicable Schedule(s), comprises the entire agreement between Customer and Vendor and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein. No amendment to or modification of this Agreement will be binding unless in writing and signed by an authorized representative of each party.
23.7 Questions. Questions about the Terms of Service should be sent to help AT chirkhr DOT com.