These Terms of Service govern your access to and use of the Tontine subscription services, on a paid or free trial basis. By placing an order, clicking to accept these Terms of Service, or using or accessing the Services (as defined below), you are agreeing to these terms. All terms used in these Terms of Service have the meanings set forth below and in Section 18 (Definitions):
The Agreement is a legally binding contract between you and Tontine LLC. To access the Tontine Platform, you must be able to enter into a legally binding contract, and represent that you are at least 18 years old or, if a business, duly organized and legally in good standing.
We may translate this Agreement into other languages for your convenience. Nevertheless, the English version governs your relationship with us, and any inconsistencies among the different versions will be resolved in favor of the English version available here. We may also update the Agreement from time to time. If we materially update any portion of the Agreement, we will notify you, at the email address provided in your Account profile, or other reasonable means (for example, by posting a notice on our website) before the date the update becomes effective. We will also post the updated Agreement in its original location marked with the new date. Changes will not be retroactive nor affect your current Subscription Term. Your renewal of your Subscription Term after we publish or send a notice about our changes to these Terms means that you are consenting to the updated terms.
A. Your Right to Use the Services
During the Subscription Term, we grant you a limited, non-exclusive, revocable, non-sublicensable, non-transferable license to use and access the Services described in the applicable Order Form, pursuant to terms of this Subscription Agreement and the relevant Order Form. Your use of the Services includes the right to access all functionality available in the purchased Services in accordance with the package(s) (and any applicable usage limitations) chosen on the Order Form, as of the effective date of such Order Form. The Services may require installation of Tontine Code on Customer Properties. In these cases, subject to the same conditions above, the rights granted in this Section further include the right to install and use the relevant Tontine Code on the Customer Properties.
B. Your Services Account
If you registering an Account as an administrator of the Services on behalf of a business, organization or other legal entity, (a) you represent and warrant that you have the authority to legally bind that entity and to grant us all permissions and licenses provided in this Agreement; (b) the words “you” and “your” used in this Agreement mean the entity registering the Account, in addition to you, an individual Authorized User; (c) you are responsible for administering Customer’s access to the Services by adding and removing Authorized Users at the Company’s direction; and (d) you shall not allow access to or use of the Services by anyone other than Authorized Users.
Authorized Users agree to: (i) not share your Account or transfer any part of it to anyone else; (ii) provide accurate, current and complete information during the registration process and keep your Account up-to-date; and (iii) keep your password secure and confidential. We reserve the right to refuse registration of, or cancel passwords that we deem inappropriate. You agree to notify us immediately of any unauthorized use of your Account and are responsible for anything that happens through your Account prior to closing it or reporting misuse to us. Customer is responsible for Authorized Users’ compliance with this Agreement, including for ensuring that Authorized Users maintain the confidentiality of their passwords and usernames.
You consent to our using of the email address you provide in your Account to send you Services-related notices, including any notices required by law, in lieu of communication by other means such as postal mail. We may also use your email address to send you other messages, such as changes to Services features, special offers, or Services-related newsletters. If you do not want to receive such email messages, you may unsubscribe as directed in the applicable communication. Opting out may prevent you from receiving email messages regarding updates, improvements, or offers.
C. Usage Limitations
You may only use the Services on one Customer Property per subscription, unless otherwise specified in your Order Form. The Services may be subject to additional limitations, such as, for example, numerical limits on Visitors or Authorized Users specific to the type of subscription you purchase. We will specify these limitations in the Order Form for the applicable subscription package. If we make modifications to these limits that would negatively impact you, these modifications will not apply to you until the start of your next Subscription Term, if any.
D. Services Updates
Your use of the Services includes the right to access all functionality available in the product to which you subscribed in the Order Form, on the effective date of such Order Form. We may enhance and modify the Tontine Platform and introduce new Services from time to time but will provide you with notice unless such changes are of minor nature with no material effect on our contractual obligations. Except with respect to Trials (as defined in Section 3(C) below), we will not make changes to the Services that materially reduce the functionality you purchased for the applicable Subscription Term. To the extent we make available any new or different features, functionality or enhancements to the Services, we will market these separately and may require the payment of additional fees. Documentation is available online and constantly being developed and improved, and as a result, during a Subscription Term we may update the Documentation to reflect best practice with the relevant Services, provided that these changes do not substantially diminish your rights or create substantial Customer obligations. You agree that we shall not be liable to you or any third party for any modification of the Services in keeping with this section.
E. Third-Party Services and Platforms
You agree to not take any action that would cause Tontine, the Services or the Tontine Code to become subject to any third-party terms (including open-source license terms). If you receive any take down requests or infringement notices related to Customer Data or your use of Third Party Services, you must promptly: (a) stop using the related item with the Services; and (b) notify Tontine. If Tontine receives any take down requests or infringement notices related to Customer Data or your use of Third Party Services, we may respond in accordance with our policies, and will notify and consult with you on next steps.
A. Subscription Fees
Unless otherwise provided in your Order Form, all Subscription Fees are payable by credit card or other payment method permitted by us from time to time, and you authorize us to charge your credit card or bank account for all fees payable during the Subscription Term, at the start of the applicable billing period specified in your Order Form (i.e., monthly or annually). You further authorize us to use a third party to process payments, and consent to the disclosure of your payment information to such third parties.
Except as otherwise specified in the applicable Order Form, Subscription Fees for the Subscription Term are non-refundable, including in the event of a suspension or termination pursuant to Section 12(C) (Termination and Suspension) below. In the event your usage increases over the limitations set forth in your Order Form, we reserve the right to charge or invoice you for the subscription package pertaining for your usage, on a prorated basis and less Subscription Fees you have already paid for the Subscription Term, commencing on the first day of the month of the Subscription Term in which the usage exceeded the applicable limit.
B. Payment Terms
Except as otherwise set forth in the applicable Order Form, you agree to pay any invoiced amounts within thirty (30) calendar days of the invoice date. We reserve the right to charge interest on late payments at the rate of 1.5% per month or 18% per annum, calculated on a monthly basis on the outstanding balance, or the maximum rate permitted by law, whichever is higher, from the date such payment was due until the date paid. If any payment is thirty (30) or more days overdue, we may, without limiting our other rights and remedies, suspend your access to the Services until such amounts are paid in full. All amounts payable under this Agreement will be made without setoff or counterclaim. Payments are non-refundable and non-creditable and payment obligations non-cancellable. You are responsible for all applicable sales, use, VAT, GST, excise, withholding, or similar taxes or levies, whether domestic or foreign, other than taxes (“Taxes”) imposed on the transaction or the delivery of Services, except Taxes based on our net income. If you are paying by credit card, you authorize Tontine to charge Subscription Fees or other amounts due automatically to your credit card without invoice.
C. Free Trial Services
We may make Services to which you have subscribed on a free trial basis (a “Trial”) available to you until the earlier of: (a) the end of the then-current Trial period offered by us, (b) the start date of any paid Services you order, or (c) the date on which we elect in our sole discretion to terminate your access to the Trial (the “Trial Term”). You acknowledge and agree that the features and functionality of the Services may be limited during the Trial Term. In addition, any changes made to Customer Data (by you or for you) during the Trial Term may be permanently lost unless you purchase a subscription to the same or upgraded Services to those covered during the Trial Term. We reserve the right to delete Customer Data following the Trial Term to the extent you do not purchase a paid subscription within seven (7) days following the end of the Trial Term. NOTWITHSTANDING ANYTHING TO THE CONTRARY THIS AGREEMENT. WE DO NOT PROVIDE ANY WARRANTY, SUPPORT OR INDEMNIFICATION OF ANY KIND WITH RESPECT TO THE SERVICES DURING THE TRIAL TERM.
A. License to your Customer Data
B. Tontine Data
You agree that we will have the right to monitor use of the Services by all of our customers and use the data gathered in an aggregate and anonymous manner, which we may use for any business purpose during or after the term of this Agreement (including to develop and improve our products and services, to compile statistical and performance information related to the provision and operation of the Services or to support benchmarking or similar features of the Services). You agree that we may use and publish the Tontine Data, provided that such information does not incorporate any Customer Data or identify you, Authorized Users or Visitors, and is stripped of all persistent identifiers (such as device identifiers, IP addresses, and cookie IDs). We retain all intellectual property rights in the Tontine Data.
C. Your Responsibility for Customer Data
By using the Services, including any products or services that facilitate the sharing of Customer Data to or from Third Party Services, you understand that you are solely responsible for Customer Data. As between Tontine and you, you are solely responsible for the accuracy, quality, integrity, and reliability of all Customer Data, and you assume all risks associated with the Customer Data, including anyone’s reliance on its quality, accuracy, or reliability. You represent and warrant that you or your Authorized Users own or have the necessary permissions to use, and authorize the use of, the Customer Data as described herein.
D. Our Right to Remove Customer Data
We have the absolute right to remove or disable access to any Customer Data on the Tontine Platform as needed to (a) operate, secure and improve the Services (including without limitation for fraud prevention, risk assessment, investigation and customer support purposes); (b) ensure Authorized Users’ compliance with the Agreement (or any Tontine policy), Applicable Law, or an order or requirement of a court, law enforcement or other administrative agency or governmental body; or (c) as otherwise set forth in this Agreement. If we become aware of any Customer Data that allegedly violates this Agreement, we may investigate the allegation and determine in our sole discretion whether to act, but have no liability or responsibility to you to do so. You agree to cooperate with us in good faith, as we may reasonably request, in any investigation we choose to undertake.
A. Prohibited Activities
You shall not use, or encourage, promote, facilitate or instruct others to use the Services for any illegal, harmful or offensive use, including:
B. Prohibited Content
Customer shall not transmit, store, display, distribute or otherwise make available any Customer Data or other Content through the Services that:
Tontine and you agree to maintain the confidentiality of all Confidential Information disclosed to one another under this Agreement, and to only use the Confidential Information as specifically permitted by the terms and conditions of this Agreement. “Confidential Information” is information, in whatever form, not generally known or readily available to the public, and proprietary and confidential to the disclosing party, including, with respect to Tontine, the Tontine Data and all non-public features of the Tontine Platform and Services; with respect to Customer, Customer Data; and with respect to both parties, the terms and conditions of each Order Form. Confidential Information does not include any information that was previously known to the receiving party.
Notwithstanding the foregoing, we reserve the right at all times to disclose any information as necessary to satisfy any Applicable Law, legal process or governmental request. You agree not to publicly disseminate information regarding the performance of the Services (which is deemed Tontine's Confidential Information).
A. What We Own
This is a subscription agreement for access to and use of the Services. You acknowledge that you are obtaining only a limited right to use the Services and that irrespective of any use of the words “purchase”, “sale” or similar terms, no ownership rights are transferred to you under this Agreement. Other than the Tontine Code, the Services are offered as an online, hosted product. As between you and Tontine, you acknowledge and agree that we (or our licensors) own the Services (including the Tontine Technology) and the copyrights, trademarks, service marks, trade names, trade secrets, and other intellectual and proprietary rights throughout the world associated with Tontine, Tontine AI, and the Services (with the exception of Customer Data), which are protected by copyright, trade dress, patent, trademark, and trade secret laws and all other applicable intellectual and proprietary rights and laws. Except as expressly provided in this Agreement, we do not grant you any express or implied rights in the Services.
B. What You Own
As between Tontine and you, Tontine acknowledges and agrees that you own the Customer Data, Customer Properties, and all content contained within them (excluding any Tontine Technology) and your copyrights, trademarks, service marks, trade names, trade secrets, and other intellectual and proprietary rights with respect to your products and services. You grant to Tontine and our third party providers (including Third Party Services), under all of your applicable intellectual property rights, a worldwide, non-exclusive, royalty-free, non-transferable, sub-licensable license to use, reproduce, distribute, modify, perform and display the Customer Data solely in conjunction with the provision of the Services under this Agreement. We agree not to disclose, disseminate, or make available Customer Data to third parties other than as needed to perform the Services or as otherwise provided in this Agreement. Additionally, you grant us the right and license to use your trade names, trademarks, service marks, trade dress, logos and other rights in indicia to identify you as a Tontine customer.
C. Suggestions and Feedback
We welcome and encourage suggestions for improvements and other feedback related to the Tontine Platform (“Feedback”). You may submit Feedback by emailing us, through the “Contact” section of the Tontine Platform, to email@example.com or by other means of communication. Any Feedback you submit to us will be considered non-confidential and non-proprietary to you. By submitting Feedback to us, you grant us an irrevocable, non-exclusive, royalty-free, perpetual, worldwide, assignable, sublicensable, transferable license to use, modify, prepare derivative works of, publish, distribute and sublicense the Feedback, and you irrevocably waive, and cause to be waived, against us or our users any claims and assertions of any moral rights contained in such Feedback.
D. Tontine Data
We may monitor use of the Services by all of our customers and use the data gathered in an aggregate and anonymous manner, including to compile statistical and performance information related to the provision and operation of the Services or to support benchmarking or similar features of the Services. You agree that we may use and publish the Tontine Data, provided that such information does not incorporate any Customer Data or identify you. We retain all intellectual property rights in the Tontine Data.
THE SERVICES ARE PROVIDED “AS IS'' AND ON AN “AS AVAILABLE” BASIS. NEITHER TONTINE NOR OUR SUPPLIERS MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. TONTINE MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, THAT CUSTOMER DATA WILL BE ACCURATE, COMPLETE, OR PRESERVED WITHOUT LOSS, OR THAT THE SERVICES WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE. TONTINE DOES NOT GUARANTEE THAT SECURITY MEASURES WILL BE ERROR-FREE AND WILL NOT BE RESPONSIBLE OR LIABLE FOR UNAUTHORIZED ACCESS BEYOND OUR REASONABLE CONTROL. TONTINE WILL NOT BE RESPONSIBLE OR LIABLE IN ANY MANNER FOR ANY CUSTOMER PROPERTIES OR THIRD-PARTY SERVICES (INCLUDING FOR ANY DELAYS, INTERRUPTIONS, TRANSMISSION ERRORS, SECURITY FAILURES, AND OTHER PROBLEMS CAUSED BY THESE ITEMS OR TO THESE ITEMS BY THE SERVICES), FOR THE COLLECTION, USE AND DISCLOSURE OF CUSTOMER DATA AUTHORIZED BY THIS AGREEMENT, OR FOR DECISIONS OR ACTIONS TAKEN (OR NOT TAKEN) BY CUSTOMER BASED UPON THE SERVICES (INCLUDING CHANGES TO CUSTOMER PROPERTIES). THE DISCLAIMERS IN THIS SECTION WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT. YOU MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, ANY STATUTORILY REQUIRED WARRANTIES UNDER APPLICABLE LAW, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD AND MAXIMUM EXTENT PERMITTED BY LAW.
To the maximum extent permitted by applicable law, you will indemnify, hold harmless and defend Tontine and our Affiliates, at your expense, from any and all third-party claims, actions, proceedings, and suits brought against Tontine or any of our Affiliates, officers, directors, employees, or agents, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, reasonable attorneys' fees and other litigation expenses) incurred by Tontine or any of its officers, directors, employees, agents or affiliates, arising out of or relating to (a) your breach of any term or condition of this Agreement; (b) your access to and use of the Services or Third Party Services; (c) any other party’s access and use of the Services with your unique username, password or other appropriate security code; or (d) any claims made by or on behalf of any third party pertaining directly or indirectly to your use of the Services or Reports, or your use, and disclosure of Customer Data in violation of any third-party rights (including intellectual property, privacy and publicity rights). We will provide you with written notice of any claim, suit or action from which you must indemnify us. You will cooperate as fully as reasonably required in the defense of any claim. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter subject to indemnification by you.
TONTINE'S (INCLUDING ITS AFFILIATES, OFFICERS, DIRECTORS AND EMPLOYEES) MAXIMUM AGGREGATE LIABILITY TO YOU FOR LOSSES OR DAMAGES THAT YOU SUFFER IN CONNECTION WITH THE SERVICES OR THIS AGREEMENT IS LIMITED TO THE GREATER OF (A) THE AMOUNT PAID, IF ANY, BY YOU TO TONTINE IN CONNECTION WITH THE SUBSCRIPTION TERM IN WHICH THE ACTION GIVING RISE TO LIABILITY OCCURRED, OR (B) $100. TO THE EXTENT PERMITTED UNDER LAW, TONTINE SHALL NOT BE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY LOSS OF DATA, OPPORTUNITIES, REPUTATION, PROFITS OR REVENUES, RELATED TO THE TONTINE PLATFORM OR SERVICES. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN TONTINE AND YOU.
A. Subscription Term and Renewal
By executing an Order Form for purchase of Services, you are agreeing to pay applicable fees for the entire Subscription Term. You cannot cancel or terminate a Subscription Term except as expressly permitted by Section 12(C) (Termination and Suspension). If no subscription start date is specified on the applicable Order Form, the subscription starts when you first obtain access to the Services. Each Subscription Term will automatically renew monthly, or for additional successive twelve-month periods as specified in the Order Form, unless: (i) otherwise stated on the applicable Order Form; or (ii) either party gives written notice of non-renewal at least thirty (30) days before the end of the then-current Subscription Term. Pricing for any Subscription Term renewal, new Order Form, or Order Form changes will be at Tontine's then-applicable rates. This Agreement is effective until all Subscription Terms for the Services(s) have expired or are terminated as expressly permitted in this Agreement.
B. Mandatory Minimum Subscription Term ("Minimum Subscription Term")
By executing an Order Form for purchase of Services, you are agreeing to the Minimum Subscription Term as stated in your Order Form, and you hereby irrevocably acknowledge and agree that: (i) this Minimum Subscription Term is necessary for us to begin effectuating the delivery of Services; (ii) it cannot be waived under any circumstances whatsoever, even if this Agreement is terminated prior to the completion of the Minimum Subscription Term by either party; and (iii) you are responsible for the sum of all fees that shall be due and payable at the end of the Minimum Subscription Term, even if this Agreement is terminated (for any reason whatsoever) prior to the completion of Minimum Subscription Term. Furthermore, you acknowledge that should you choose to terminate this Agreement prior to the completion of the Minimum Subscription Term, all fees due at the end of the Minimum Subscription Term will become due immediately and must be paid by you without delay. Lastly, the Minimum Subscription Term must be completed consecutively and uninterrupted.
C. Termination and Suspension
Either party may terminate this Agreement in the ordinary course of business, or due to convenience, with a minimum of thirty (30) days written notice to the counterparty. Furthermore, we may terminate this Agreement, including any related Order Form, if you: (a) fail to cure any material breach of this Agreement (including a failure to pay undisputed fees) within thirty (30) days after written notice detailing the breach; (b) cease operation without a successor; or (c) if permitted by applicable law, seek protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any of these proceedings are instituted against you (and not dismissed within sixty (60) days thereafter). In addition, we may suspend or immediately terminate this Agreement with respect to a Customer or an Authorized User, and any related Order Forms, immediately in the event of a breach of Sections 5 (Acceptable Use of the Services) or 6 (Privacy), if your account is overdue; if you have exceeded your usage limits, or for repeated violations of this Agreement. We will have no liability for taking action as permitted above. For the avoidance of doubt, you will remain responsible for payment of fees during any suspension period under this Section 12(C). However, unless this Agreement has been terminated, we will cooperate with you to promptly restore access to the Services once we verify that you have resolved the condition requiring suspension.
D. Effect of Termination
Upon any expiration or termination of this Agreement or an Order Form: (a) your license rights terminate and you must promptly: (i) stop use of the Services(s); (ii) stop distributing any Tontine Code installed on your Customer Properties; and (iii) delete (or, at our request, return) any and all copies of the Tontine Code, any Documentation, passwords or access codes, and any other Tontine Confidential Information in your possession, custody, or control; and (b) your right to access any Customer Data and Reports in the applicable Services will cease and Tontine may delete the Customer Data and Reports at any time after thirty (30) days from the date of termination. If we terminate this Agreement for cause as provided in Section 12(C) (Termination and Suspension), any payments for the remaining portion of the Subscription Term will become due and must be paid immediately by you. Except where this Agreement specifies an exclusive remedy, all remedies under this Agreement, including termination or suspension, are cumulative and not exclusive of any other rights or remedies that may be available to a party. In the event that we permanently suspend your Account, during a Subscription Term pursuant to Section 12(C) (Termination or Suspension) above, you are not entitled to a restoration of your Account or any of your Customer Data. If we have suspended your individual Authorized User Account, you may not register a new Account or access and use the Services through an Account of another user. All sections of this Agreement which by their nature should survive termination will survive termination, including accrued rights to payment, confidentiality obligations, indemnification, warranty disclaimers, and limitations of liability.
E. No Damages for Termination
TONTINE SHALL NOT BE HELD LIABLE, UNDER ANY CIRCUMSTANCES WHATSOEVER, DAMAGES TO YOU OF ANY KIND, INCLUDING INCIDENTAL, DIRECT, INDIRECT, OR CONSEQUENTIAL DAMAGES ON ACCOUNT OF THE TERMINATION OF THIS AGREEMENT IN ACCORDANCE WITH THIS SECTION 12.
Subject to the agreement to arbitrate below, this Agreement shall be governed by and construed in accordance with the laws of the State of Delaware without regard to conflicts of law principles. You agree to exclusive and personal jurisdiction of the federal and state courts located in the City and County of New Castle, Wilmington (D.E.), United States of America, and waive any jurisdictional, venue or inconvenient forum objections to such courts. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
Tontine and you recognize that this Agreement is subject to, and intended to comply with, Applicable Law, and agree that the Services addressed in this Agreement do not exceed those which are reasonably necessary to accomplish the commercially reasonable business purposes of this Agreement.
This Agreement (including each Order Form) contains the entire understanding between Tontine and you relating to the subject matter herein and supersedes all prior oral or written agreements between us. We reject any additional or different terms proposed by you, those contained in your purchase order, acceptance or website. In the event of a conflict between the terms of these Terms of Service and an Order Form, the terms of the Order Form shall control, but only as to that Order Form. You may not assign or transfer your rights and benefits under this Agreement without our prior written consent, but we may assign or transfer this Agreement without restriction. Except as set forth in this Agreement, nothing in this Agreement shall be deemed to confer any rights or benefits on any third party. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.
No waiver, amendment, modification or addition to this Agreement shall be valid unless in writing and signed by both you and us. In the event any provision of this Agreement is determined to be invalid by a court of competent jurisdiction, such determination shall in no way affect the validity or enforceability of any other provision herein. To the extent allowed by Applicable Law, you agree that you will bring any claim or cause of action arising from or relating to your access or use of the Services within two (2) years from the date on which such claim or action arose or accrued or such claim or cause of action will be irrevocably waived. Tontine and Customer are independent contractors, and this Agreement does not create a partnership, joint venture, employment or agency relationship between the Tontine and Customer or any Authorized User. This is a non-exclusive arrangement.
If you have a question or complaint regarding the Services, please send an e-mail to firstname.lastname@example.org. Please note that e-mail communications will not necessarily be secure; accordingly, you should not include credit card information or other sensitive information in your e-mail correspondence with us. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
A. First Try Customer Support
If you have any issues with the Services, Tontine, or any issue covered by this Agreement, you must try to resolve the issue first through Tontine Support. If you are not able to resolve the issue through Tontine customer support within sixty (60) days, you may pursue the dispute resolution procedures detailed in the remainder of Section 17.
B. Agreement to Arbitrate
This Arbitration Agreement is governed by the Federal Arbitration Act (FAA), including its procedural provisions, in all respects. This means that the FAA governs, among other things, the interpretation and enforcement of this Arbitration Agreement and all of its provisions, including, without limitation, the class action waiver discussed below. State arbitration laws do not govern in any respect.
This Arbitration Agreement is intended to be broadly interpreted and will survive termination of this Agreement, which means (among other things) that this Arbitration Agreement applies even after you have stopped using the Tontine Platform/Services or have deleted it. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to the extent permitted by law to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of this Agreement, including, but not limited to, any claim that all or any part of this agreement is void or voidable. If the parties have a dispute about whether this Arbitration Agreement can be enforced, whether this Arbitration Agreement applies to a dispute, or any other dispute about the meaning or scope of this Arbitration Agreement, the parties agree that the arbitrator shall have exclusive authority to resolve the dispute.
There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages) and must follow this Agreement as a court would. For the avoidance of doubt, the arbitrator can award public injunctive relief.
In the event this Arbitration Agreement is for any reason held to be unenforceable or inapplicable to a claim, any litigation against Tontine (except for the intellectual property and small claims actions described in Section 17(C) below) may be commenced only pursuant to Section 13 (Choice of Law and Venue).
In an arbitration proceeding, the arbitrator will not be entitled to modify this Agreement, and may not award any relief that is inconsistent with this Agreement. Except as provided in the Federal Arbitration Act, the arbitration award will be final and binding upon the parties. Judgement may be entered in any court of competent jurisdiction.
C. Exceptions to Agreement to Arbitrate
You and Tontine agree that the agreement to arbitrate will not apply to any disputes relating to Tontine’s intellectual property (e.g., trademarks, trade dress, domain names, trade secrets, copyrights or patents) and that such disputes may be brought in any court that has jurisdiction over such claims. Also, either party can bring a claim in small claims court in Wilmington, Delaware (or small claims court in another place if both parties agree in writing), if it qualifies to be brought in that court.
D. Class Action Waiver
You and Tontine agree that any claims or controversies between the parties must be brought against each other on an individual basis only, and not in a class, consolidated, or representative action. That means neither you nor Tontine can bring such a claim as a plaintiff or class member in a class action, consolidated action, or representative action. The arbitrator cannot combine or consolidate more than one person’s or one entity’s claims into a single case, and cannot preside over any consolidated, class or representative proceeding (unless all parties agree otherwise in writing). Further, the arbitrator’s decision or award in one person’s or entity’s case can only impact the person or entity that brought the claim, not other entities or Tontine customers, and cannot be used to decide other disputes with other customers. YOU AGREE TO WAIVE ANY RIGHT TO A JURY TRIAL, YOU AGREE TO WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-WIDE OR REPRESENTATIVE ARBITRATION, AND YOU AGREE TO WAIVE ANY RIGHT TO PARTICIPATE IN ANY CLASS ACTION LAWSUIT (INCLUDING FOR ANY CLAIM THAT IS DETERMINED NOT TO BE SUBJECT TO ARBITRATION UNDER THESE TERMS). If a court decides that this class action waiver is not enforceable or valid, then the entire agreement to arbitrate will be null and void, but the rest of this Agreement will still apply.
“Account” means an account you must register with Tontine on the Tontine Platform prior to accessing the Services.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. For purposes of this definition, “control” means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Agreement” means these Terms of Service, Order Forms, and any other documents or policies referenced or incorporated therein.
“Applicable Law” means all applicable local, state, federal, and international laws, rules, and regulations.
“Authorized User” means an employee, representative, consultant, contractor (such as media agencies or marketing consultants) or other agent of the Company who is authorized to access and use the Services for Customer’s benefit through the individual’s unique registered Account.
“Customer” means a business, organization, or other legal entity identified in the applicable invoice, online subscription process, and/or Order Form responsible for purchasing and administering access to the Services on behalf of the entity.
“Customer Content” means text, images, videos or other content for the Customer Property that Customer selects for use with the Services.
“Customer Data” means the data, information and content provided by you to us, including through Third Party Services providers, to enable provision of the Services, including (i) Customer Content; (ii) Submitted Data; and (iii) Visitor Data.
“Customer Property or Properties” means any web page located at a single domain/URL and its subdomains under your control that sends data to the Tontine Platform. Unless otherwise specified in an Order Form, you may only use the Services on one Customer Property.
“Documentation” means any user instructions and help files that we make available to you as part of the Services, as may be updated from time to time by us.
“Feedback” means suggestions for improvements and other feedback related to the Tontine Platform.
“Tontine Code” means the code developed and provided by Tontine for use in connection with the Services. Tontine Code may include the Tontine application, server-side software (e.g., to analyze the Visitor Data and generates Reports), code installed on a Customer Property for the purpose of collecting Visitor Data, together with any fixes, updates and upgrades provided to you.
“Tontine Data” means statistical and use data collected by us pertaining to use of the Services.
“Tontine Platform” means the Tontine software-as-a-service product(s) accessed through the Tontine application.
“Tontine Technology” means any and all Documentation, Tontine Code, Tontine Data and other technology, code, know-how, logos and templates (including in any Reports or output obtained from the Services) underlying the Services, and anything delivered as part of support or other services, and any updates, modifications or derivative works of any of the foregoing, including as may incorporate any Feedback.
“Order Form” means any Tontine ordering documentation or online sign-up or subscription flow for the Services that references these Terms of Service. Unless specifically provided otherwise in the Order Form, Order Forms will be deemed to incorporate the terms of this Agreement.
"Report" means analyses generated through the Tontine Platform specific to pricing tests performed through the Services.
“Services” mean the services, individually and collectively, that we provide in connection with your subscription to the Tontine Platform, such as web-based analytics, system management and monitoring tools, Documentation, Reports, and associated technologies.
“Services” include all Tontine Technology and any support and maintenance services provided.
“Subscription Fee” means the amount you pay for the Services.
“Subscription Term” means the initial term for the subscription to the applicable Services, as specified on your Order Form(s), and each subsequent renewal term (if any).
“Submitted Data” means data uploaded, inputted or otherwise submitted by a Customer to the Services, including content, data or other materials that you provide to the Services from your third-party data providers or Third Party Services.
“Third Party Service(s)” means services delivered or performed by third parties related to the Services, or other online, web-based services, e-commerce platforms or other business application subscription services, that interoperate with or are used in connection with the Services, and any other products not developed by Tontine.
“Visitor” means any end user of a Customer Property.
“Visitor Data” means the data and information concerning the characteristics and activities of Visitors on the Customer Properties collected for Customer by the Services.
“We,” “us,” “our” and “Tontine” refer to Tontine LLC.
“You” or “your” refers to Customer or an Authorized User, as applicable.
If you have any questions about this Agreement, please email us at email@example.com with the subject line “Questions regarding Terms & Conditions”.
If you would like to notify us via letter, please address it to the following:
Office of General Counsel
2810 N. Church St. (#19454), Wilmington, DE 19802