SOLOMO Exchange Terms of Service

Last updated: May 1, 2016

SOLOMO Exchange Terms of Service
(“Terms of Service”) 


These Terms of Service are effective May 1, 2016. 

Welcome to the SOLOMO ExchangeTM location services (the “Cloud Services”), a service of SOLOMO Technology, Inc., a Wisconsin corporation (“SOLOMO”, “we”, or “us”).  Please read these Terms of Service carefully, as they contain the legal terms and conditions that govern your use and access of the Cloud Services. SOLOMO reserves the right to update and change the Terms of Service from time to time by posting an updated version of such Terms of Service at http://solomotechnology.com/terms-of-service.html no later than thirty (30) days prior to the posted effective date of such update. If you continue to use or access the Cloud Services after the posted effective date, you hereby agree to the updated Terms of Service. Unless SOLOMO otherwise indicates, your use of any new features, changes, and enhancements to the current Cloud Services, including the release of new features and resources, shall be subject to the Terms of Service.

BY SIGNING UP FOR AN ACCOUNT OR BY USING THE CLOUD SERVICES, YOU HEREBY ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE. THE TERM “YOU”  OR “SUBSCRIBER” REFERS TO THE INDIVIDUAL OR CORPORATE END USER THAT IS SPECIFIED IN THE REGISTRATION INFORMATION ASSOCIATED WITH SUCH END USER’S ACCOUNT FOR THE SERVICE.

1.       Account Terms 

1.1.     Contact Information.  You must provide your legal full name, a valid email address, and any other information requested during the account signup process in order to obtain an account. You must ensure that all account information remains complete and accurate.

1.2.    Human.  You must be a human. Accounts registered by “bots” or other automated methods are not permitted.

1.3.     Account Security.  You are responsible for maintaining the security of your account and password, and are responsible for all activities conducted using your account and password. SOLOMO cannot and will not be liable for any loss or damage from your failure to comply with this security obligation.

2.       Payment and Pricing Terms
Payment and pricing terms for the Service are set forth on SOLOMO’s pricing information page available at http://www.solomotechnology.com/pricing.html, or custom Subscription Order form, which is incorporated by reference into these Terms of Service, subject to the provisions of Section 4.  For any professional Services, Subscriber will pay SOLOMO those professional Services fees as set forth in the applicable Statement of Work. 
3.       Modifications to the Cloud Services 

3.1.   Modifications.  The Cloud Services and its functionality may be modified at any time during the Term of this Agreement but will not be materially decreased from that available as of the Effective Date.
 
3.2.     Discontinuation. SOLOMO reserves the right at any time to discontinue, temporarily or permanently, the Cloud Services (or any part thereof) with or without notice.

3.3.     Liability. SOLOMO shall not be liable to you or to any third party for any modification, price change, suspension or discontinuance of the Cloud Services.

4.       Cancellation and Termination 

4.1.     Term.  Subscriber will continue to be billed for the Service until SOLOMO terminates your account in accordance with these Terms of Service or you properly cancel your account. You are solely responsible for properly canceling your account.

4.2.     Cancellation.  If you cancel the Service before the end of your current paid up period, your cancellation will take effect upon completion of the billing cycle that has already been paid.

4.3.     Termination.  SOLOMO, in its sole discretion, has the right to suspend or terminate your account and refuse any and all current or future use of the Cloud Service, or any other SOLOMO service, for any reason at any time. Such termination of the Service will result in the suspension or deletion of your Account or your access to your Account. SOLOMO reserves the right to refuse service to anyone for any reason at any time.

4.4.     Effect of Termination.  Upon any termination or expiration of this Agreement:

4.4.1.  All rights and obligations of the Subscriber under this Agreement as shall have accrued prior to such termination and any obligations which expressly or by implication are intended to come into or continue in force on or after such termination shall remain in effect;

4.4.2.  Subscriber must immediately eliminate from all its literature, business stationery, publications, notices and advertisements all references to SOLOMO or the Cloud Services, Cloud Services Materials and Services and any use of or access to Personally Identifiable Information through SOLOMO;

5.       Software Licenses, Copyright and Content Ownership 

5.1.     Limited License.    Following set up of the Subscriber’s account by either SOLOMO or a Certified SOLOMO Partner, SOLOMO grants to Subscriber a limited, personal, non-exclusive, non-transferable, revocable, non-sublicense able license to access and use the Cloud Services and Cloud Services Materials in accordance with the terms of this Agreement.

5.1.1. Intellectual Property.  The Cloud Services and Cloud Services Materials and all Intellectual Property rights relating to the Cloud Services and Cloud Services Materials and support thereof are and will remain the property of SOLOMO.  Subscriber expressly acknowledges that it does not have and will not have, by virtue of this Agreement or otherwise, acquire any proprietary rights whatsoever of any kind in the Cloud Services, Cloud Services Materials, Services or results of the same or any adaptation, modification, derivation, addition or extension of the same whether made by SOLOMO or Subscriber.  The Subscriber must notify SOLOMO immediately if the Subscriber becomes aware of any unauthorized use of or access to the Cloud Services or any Cloud Services Materials or any of the Intellectual Property rights therein or relating thereto and will assist SOLOMO (at SOLOMO’s expense and at SOLOMO’s written request) in taking all steps to defend SOLOMO’s rights therein.  This Agreement does not authorize Subscriber to use SOLOMO’s name or any of its trademarks in any manner whatsoever without SOLOMO’s prior written approval.

5.1.2. Modifications by Subscriber.  Subscriber must not modify, adapt or hack the Cloud Services or modify another website so as to falsely imply that it is associated with the Cloud Services, SOLOMO, or any other SOLOMO service.

5.1.3. Restrictions.  Subscriber shall not reproduce, duplicate, copy, sell, resell or exploit any portion of the Cloud Services, use of the Cloud Services, or access to the Cloud Services without the express written permission by SOLOMO.

5.2.     Subscriber Privacy Policies

5.2.1. Subscriber Privacy Policy.  Subscriber must have in place and comply with at all times a privacy policy that is in material compliance with all applicable laws.  Subscriber’s privacy policy must be made available to all consumers, including without limitation Consumer End Users. 
 
5.2.2. Subscriber’s Raw Device Identifier.  Notwithstanding the above, in the event that the Raw Device Identifier is provided by Subscriber through a third party device or service and passed through to SOLOMO, since such Raw Device Identifier data is collected outside the SOLOMO Cloud Services, SOLOMO does not require the deletion and removal of such Raw Device Identifiers from Subscriber's systems and the use of such Raw Device Identifiers as they relate to Consumer End Users outside the scope of the SOLOMO Cloud Services and its management controls is solely between the Consumer End User and Subscriber.

5.2.3. Subscriber’s Personally Identifiable Information. Subscriber’s use and retention of any Personally Identifiable Information obtained directly from the individual Consumer outside of the SOLOMO Cloud Services, which is subject to a separate agreement between Subscriber and Consumer is outside the scope of this Agreement.

6.       Service Level Commitment 

6.1.     Support.  SOLOMO will provide support consisting of telephone help desk or online support to the Subscriber Administrative Users as set forth in SOLOMO’s Customer Support Service document available online at www.solomotechnology.com/solomo-customer-support-service.html.  In addition, SOLOMO will use commercially reasonable efforts to make the Cloud Services and Consumer App generally available 24 hours a day, 7 days a week except for planned downtime, emergency maintenance and events of force majeure as further set forth in the SOLOMO Service Level Agreement available online at www.solomotechnology.com/solomo-service-level-agreement.html.  Without limiting the foregoing, SOLOMO is not responsible for acts or omissions of Subscriber or any of its employees, agents, contractors or representatives that result in failure of, or disruption to the Services.  SOLOMO will provide updates and bug fixes to the Cloud Services as such become generally available. 

7.       General Conditions 

7.1.    Business Use.  Use of the Cloud Services and Services is solely for Subscriber’s internal business purposes as contemplated by this Agreement.  Subscriber may not (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Cloud Services Materials available to any third party; (ii) attempt in any way to circumvent or otherwise interfere with any security, procedural controls or other measures relating to the Cloud Services.

7.2.     Authorized Users.  Subscriber (i) will designate employees who shall receive access to the Cloud Services and its control mechanisms and/or interfaces (“Authorized Users”); (ii) is responsible for all activities that occur under Subscriber’s account, whether or not such activity is conducted by Subscriber’s employees and/or agents permitted to access the Cloud Services; (iii) is responsible for all acts and omissions of its Authorized Users; (iii) will prevent unauthorized access to or use of the Cloud Services and will notify SOLOMO promptly of any such unauthorized use; (iv) will comply will all applicable local, state, federal, foreign and international laws and regulations in conducting its business and using the Application.

8.     Warranties and Warranty Disclaimers

8.1.   Subscriber.  Subscriber represents and warrants that it will use the Cloud Services, Cloud Services Materials, Personally Identifiable Information and other SOLOMO Services solely for lawful purposes and solely in accordance with applicable local, state, federal, foreign and international laws and regulations. 
 
8.2   Subscriber Data.  In the event that Subscriber is providing SOLOMO any Data inclusive of Raw Device Identifier Data collected by Subscriber through a third party device or service, Subscriber represents and warrants that it has a right to collect such Raw Device Identifier Data and make such Raw Device Identifier Data available to SOLOMO under this Agreement.  Subscriber further warrants that the provision of such Raw Device Identifier Data by Subscriber to SOLOMO under this Agreement is permitted by any contract in place between Subscriber and any third party and such Raw Device Identifier will not contain any virus, back door, trap door, worm, Trojan horses or any self-help code, including without limitation any time bomb, drop dead device, malware, spyware, malicious code or other software routine designed to disable a computer program automatically with the passage of time or under positive control of any party other than SOLOMO.

8.2.1.  Cloud Services.  SOLOMO shall not be responsible for any breach of this warranty unless written notice of such breach is given by Subscriber to SOLOMO within ten (10) days of the alleged breach.  In the event of any breach of any warranty set forth in this Agreement which is so reported by Subscriber, SOLOMO’s sole and exclusive responsibility, and Subscriber’s sole and exclusive remedy, will be for SOLOMO to correct any reported failure of the Cloud Services causing a breach of this warranty, however, that IF WITHIN A COMMERCIALLY REASONABLE PERIOD, SOLOMO FAILS TO CORRECT SUCH DEFECTS THEN SUBSCRIBER’S SOLE AND EXCLUSIVE REMEDY SHALL BE TO RECEIVE A REFUND OF THE PREPAID PORTION OF THE FEES FOR THE UNUSED PORTION OF THE SUBSCRIPTION TERM PAID BY SUBSCRIBER FOR THE NON-CONFORMING SERVICE.

8.2.2.  Transmissions.  SOLOMO assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, any Subscriber or Consumer End User communication.

8.2.3.  Online Services.  Subscriber understands that the Cloud Services and Consumer App are provided as both web and mobile Cloud Services (respectively), which are dependent on the Internet and its infrastructure and/or third party telecommunications networks, and that the Internet is inherently unreliable and subject to failures, hacking and breaches.  SOLOMO is not responsible for any problems or technical malfunction of any telephone or network or lines, computer online systems, servers or providers, computer equipment, software, failure due to technical problems or traffic congestion on the Internet or on any of the Services or combination thereof, including any injury or damage to Subscriber’s or to any person’s computer related to or resulting from use of the Services or access to the Cloud Services or Consumer App.

8.2.4.  Results.  SOLOMO does not warrant or represent and cannot guarantee that the Services, Cloud Services or Consumer App will meet Subscriber’s need and SOLOMO cannot and does not promise or guarantee any specific results from use of the Services, Cloud Services or Consumer App.

8.2.5.  Disclaimer.  Except as expressly set forth in this Section the Services, Cloud Services, Cloud Services Materials and Consumer App are provided “AS IS,” “WHERE IS” and “WITH ALL FAULTS.”  SOLOMO makes no other warranty or representation express or implied, and hereby disclaims and any all implied warranties, including without limitation any implied warranty of merchantability, fitness for a particular purpose (whether or not SOLOMO knows, has reason to know, has been advised or is otherwise aware of any such purpose), title, noninfringement and any warranties arising from a course of dealing or usage in trade. 

9.       Limitation of Liability 

9.1.     Damage.  In no event will SOLOMO be liable to Subscriber or any third party for any loss of profits, loss of revenues, loss of business, loss of data, procurement of replacement goods or services, indirect, consequential, exemplary, incidental, special or punitive damages, arising from Subscriber’s use of the Cloud Services Materials or SOLOMO Services, even if SOLOMO has been advised of the possibility of such damages.  Notwithstanding anything to the contrary contained herein, SOLOMO ‘s liability to Subscriber for any cause whatsoever and regardless of the form of the action, will at all times be limited to the amount paid, if any, by Subscriber to SOLOMO for the SOLOMO Services giving rise to the claim in the twelve (12) months immediately preceding the claim even if such remedy fails of is essential purpose.  The parties understand and agree that this provision and the allocation of risk is a material provision of the Agreement upon which the parties have relied in entering into this agreement.

9.2.     Claims.  Except for actions for nonpayment or liability arising from Section 4 or 5, no action (regardless of form) arising out of this Agreement may be commenced by either party more than two (2) years after the cause of action has accrued.

9.3.     Indemnification.

9.3.1. Indemnification by Subscriber.  Subscriber will indemnify, defend and hold harmless SOLOMO, and any agent, representative, director, officer or employee thereof, against all costs, damages, liabilities, losses and expenses (including, but not limited to, reasonable attorneys’ fees) incurred as a result of or arising from any third party allegation, claim, suit, action, or proceeding (each, an “Action”) based upon or arising from (i) any violation of Subscriber’s privacy policy or the SOLOMO Trust Principles, (ii) any act or omission by Subscriber or its personnel, including without limitation its Authorized Users, (iii) any violation of law by Subscriber or its personnel, including without limitation its Authorized Users, (iv) any use of the Subscriber Content.

9.3.2Indemnification by SOLOMO.  SOLOMO will defend, and hold harmless Subscriber and any agent, representative, director, officer or employee thereof, against any Action brought against Subscriber by a third party to the extent that the Action is based upon a claim that the Cloud Services or Cloud Services Materials made available as a part of the Service (the “Software”) infringes any United States copyright or misappropriates any United States trade secret, and SOLOMO will pay those costs and damages finally awarded against Subscriber in any such Action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such Action made by SOLOMO.  If the Software becomes, or in SOLOMO’s opinion is likely to become, the subject of an infringement or misappropriation claim, SOLOMO may, at its option and expense, either: (i) procure for Subscriber the right to continue using the Software, (ii) replace or modify the Software so that it becomes non-infringing (provided any such replacement or modification does not materially degrade the Software’s functionality), or (iii) if (i) or (ii) are not commercially practicable despite SOLOMO using commercially reasonable efforts, terminate this Agreement and provide Subscriber with a pro-rata refund of any fees paid under this Agreement for the remainder of any subscription term for which the Service will not be provided following such termination.  Notwithstanding the foregoing, SOLOMO will have no obligation with respect to any infringement or misappropriation claim if the Software is being used not in accordance with this Agreement or not in accordance with the Cloud Services Material, or has been modified by Subscriber or any third party.  SOLOMO’s obligations under this Section shall constitute its only obligations and Subscriber’s only remedy in the event that any claim or action is brought against Subscriber alleging that the Software infringes, misappropriates, or otherwise violates the rights of any third party.

10.    Miscellaneous 

10.1. Each party represents and warrants that it has the legal right and authority to enter into this Agreement and perform its obligations under this Agreement.

10.2. Governing Law.  This Agreement will be interpreted and construed in accordance with the laws of the State of Wisconsin, exclusive of its rules governing conflict of laws and choice of laws. 
10.3. The Terms of Service constitutes the entire agreement between you and SOLOMO and govern your use of the Cloud Services, superseding any prior agreements between you and SOLOMO (including, but not limited to, any prior versions of the Terms of Service).

These Terms of Service were last updated on April 1, 2016.

Questions about the Terms of Service should be sent to legal@solomotechnology.com