2 terminate any User Account and refuse any and all current or future use of the Service (or any portion thereof) to anyone that provides false or inaccurate Registration Data. We reserve the right to change the Service (including the content, appearance, design, functionality and all other aspects thereof), access procedures, tools, documentation, format requirements, communications protocols and services offered at any time for any reason. 4. LAWFUL CONDUCT You will not use the Service for any purpose that could be deemed unlawful or that could/may damage, disable, overburden, or impair any aspect of the Service. Any unauthorized attempts to gain access to the Service, or other customers accounts, any computer systems or networks connected to the Service, through any means, including; hacking, password mining, or any other means, is strictly prohibited. You may not in any way attempt to obtain any materials or information not intentionally made public/available, through the Service. You acknowledge and agree that Planday may preserve Registration Data and/or User Data (collectively, Data ) and may also disclose Data if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, (b) enforce these Terms, and (c) respond to claims that any Data violates the rights or personal safety of third-parties. You understand that the technical processing and transmission of the Service, including Data, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. You agree to not use any automated system, extension or software that causes your browser to automatically reload our web pages without our prior written permission. 5. AVAILABILITY Planday will provide the Service on Planday s servers and/or via Planday s trusted third party providers, and will use commercially reasonable efforts to make the Service available twenty four hours a day, seven days per week, three hundred sixty five days per year, except for certain scheduled service and maintenance or in the event of emergency or events beyond Planday s reasonable control. Notwithstanding the foregoing, Planday will not be responsible for any downtime or failure to meet such availability goals. Planday will make commercially reasonable efforts to perform service and maintenance to the Service outside peak usage hours. Customer acknowledges that availability of the Service may be affected by: (i) telecommunication network activity or capacity; (ii) hardware failures; and/or (iii) compatibility with third party communication equipment, Internet access software and/or browsers not in accordance with the Service requirements. Planday disclaims any and all responsibility for any Service interruption in connection with such activity, capacity, failure and/or compatibility. Customer is responsible for providing all equipment and telecommunication services necessary to access the Service. Customer is
3 solely responsible for backing up, to its own storage media, the User Data. Planday expressly disclaims any liability arising out of Customer s failure to back-up its own User Data. 6. FEES AND PAYMENTS Planday does not charge a fee for Trial Subscriptions. With respect to our Paid Subscriptions, it is important to us to keep our prices fair and competitive. However, prices for the Service are subject to change upon 30 days notice from us. We will always endeavor to give you written notice of any change in prices, however such notice is deemed effectively given when we post such new prices to the Site. You will pay and or reimburse us for all sales, use, transfer, privilege, excise, and all other taxes and all duties, whether international, national, state or local, however designated, which are levied or imposed specifically by reason of our performance under these Terms; excluding, however, taxes measured by Planday s profits, its overall sales, employment and similar taxes incurred in connection with persons performing services on our behalf, and property or other taxes measured in whole or in part by the value of Planday s assets. The first billing period commences on the date you update your User Account to reflect the commencement of a Paid Subscription. Upon such update, you will be prompted to pay for the first month. Thereafter, your credit card will be billed in advance for each successive 30 days. You will pay all invoiced charges in U.S. Dollars. To simplify billing, we require that you keep a valid credit card on file. If your credit card is declined or otherwise fails to process payment, will notify the address provided with your Registration Data. We reserve the right to terminate the Service within 21 days of providing such notice. 7. CANCELLATION; TERMINATION It is your sole responsibility to cancel your Paid Subscription and confirm your account has been accurately cancelled. If you elect to cancel your Paid Subscription part way through the then current term, you will not be entitled to a refund for the remainder of the then current term. We have the right to suspend or terminate your User Account and refuse any and all current or future use of the Service at any time for any reason. If we elect to terminate your account, you will be entitled to a refund proportional to the amount of time during the then current term for which you have paid but are unable to utilize the Service. 8. TRANSITION OF USER DATA Regardless of the reason your User Account is terminated or cancelled, you acknowledge and agree that we may immediately delete your User Data [unless we have entered into written data transition agreement with you. Data transition services will incur those additional fees as set forth in such further agreement. To inquire as to the availability of data transition services, please contact us at Data transition services are only available in connection with Paid Subscriptions. 9. LICENSE GRANTS
4 Planday hereby grants you a limited, royalty-free, non-exclusive, non-transferable license to use, access, input data into, process data through and publicly display the Service for you internal use only. You will not use, copy, modify, rent, loan, lease, sublicense, create derivative works or distribute the Service for any other purposes. Planday grants no rights other than explicitly granted herein. All techniques, know-how, software, algorithms and methods or rights thereto owned by Planday at the time these Terms are entered into, developed during the course of the design, development, and provision of the Service, or which are employed by Planday in connection with the Service, will be and remain the property of Planday. Customer will not decompile, disassemble, or reverse engineer the Service or any elements of the Service, or otherwise derive source or object code from the Service or any elements thereof. Customer agrees not to access the Service by any means other than through the interfaces that are provided by Planday. Customer will ensure that all access and use of the Service by Users is in accordance with the terms and conditions of these Terms. Any action or breach by any of Customer s users will be deemed an action or breach by Customer. Planday will have a royalty-free, worldwide, perpetual license to use or incorporate into the Service any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer relating to the operation of the Service. 10. OWNERSHIP As between Planday and Customer, Planday (or its licensors) is the sole and exclusive owner, and will retain all right, title and interest in and to the Service, including without limitation all of the software comprising any portion thereof and all related services, specifications, documentation, technical information, corrections, modifications, additions, improvements and enhancements to and all intellectual property rights in the foregoing. As between Planday and Customer, all User Data is and will remain the sole and exclusive property of Customer. As between Planday and Customer, all data analytics and aggregated data generated from Customer s use of the Service will be the sole and exclusive property of Planday and Planday will have the right to use, create derivative works of, distribute and otherwise exploit all such data analytics and anonymous, aggregate usage data derived from Customer s use of the Service. 11. TRADEMARK All trademarks, service marks and trade names of Planday used herein (any such being Marks ) are trademarks or registered trademarks of Planday or its affiliates, partners, vendors or licensors. You may not use, copy, reproduce, republish, upload, post, transmit, distribute, or modify the Marks in any way without our prior written consent. 12. REPRESENTATIONS AND WARRANTIES You represent and warrant that (a) you are over the age of 18, (b) have the right and authority to enter into these Terms, (c) are fully able and competent to satisfy the terms, conditions, and obligations set forth herein, (d) your use of the Service is and will be in compliance with all applicable laws, (e) you have obtained all consents, and possess all
5 rights necessary to submit Data to the Service, (f) the Data and our use thereof as contemplated by these Terms will not infringe any rights of any third party, including but not limited to any intellectual property rights, privacy rights and rights of publicity, and (g) you have read, understood, agree with, and will abide by these Terms. 13. DISCLAIMERS YOUR USE OF THE SERVICE IS AT YOUR OWN RISK. THE INFORMATION, MATERIALS AND SERVICES PROVIDED ON OR THROUGH THE SERVICE ARE PROVIDED "AS IS" WITHOUT ANY WARRANTIES OF ANY KIND INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SECURITY OR NON- INFRINGEMENT OF INTELLECTUAL PROPERTY. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, PLANDAY DOES NOT WARRANT (i) THE SERVICE WILL MEET YOUR SPECIFIC REQUIREMENTS (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE (iv) THE QUALITY OF ANY PRODUCTS, SERVICES INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS, AND (v) ANY ERRORS IN THE SERVICE WILL BE CORRECTED. THE FOREGOING EXCLUSIONS OF IMPLIED WARRANTIES DO NOT APPLY TO THE EXTENT PROHIBITED BY LAW. PLEASE REFER TO YOUR LOCAL LAWS FOR ANY SUCH PROHIBITIONS. 14. LIMITATION OF LIABILITY IN NO EVENT WILL EITHER PARTY BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR SPECIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE SERVICE, INCLUDING ANY LOSS OF REVENUE, PROFITS, OR DATA, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND EITHER PARTY S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS FOR ALL CLAIMS ACCRUING DURING THE TERM EXCEED THE GREATER OF $500 OR THE AMOUNTS PAID BY AND DUE FROM CUSTOMER. 15. INDEMNITY You agree to indemnify and hold Planday, and its subsidiaries, affiliates, officers, agents, and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your Data, your use of the Service, your connection to the Service, your violation of these Terms, or your violation of any rights of another. 16. LEGAL
6 These Terms and any dispute arising hereunder will be governed and construed as to all matters, including validity, construction, and performance, by and under the laws of the State of Washington, without regard to any choice of law or conflict of laws principles or provisions. You acknowledge and agree that a breach of these Terms will cause Planday irreparable damage for which recovery of money damages would be inadequate, and that Planday will therefore be entitled to obtain timely injunctive relief to protect Planday s rights under these Terms in addition to any and all remedies available at law. You agree to comply with all local rules regarding online conduct and acceptable User Data. Specifically, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside. 17. MISCELLANEOUS A printed version of these Terms will be admissible in judicial and administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. The relationship of the parties hereunder is that of independent contractors, and these Terms will not be construed to imply that either party is the agent, employee, or joint venturer of the other. Unless otherwise specified, any notices Planday may need to deliver to Customer will be deemed effectively delivered when sent to Customer s address set forth in the Registration Data. If any provision of these Terms is held to be invalid or unenforceable, such provision will be struck and the remaining provisions will be enforced. You agree that these Terms and all incorporated agreements may be automatically assigned by Planday in our sole discretion. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. Our failure to act with respect to a breach of these Terms by you or others does not waive our right to act with respect to subsequent or similar breaches. These Terms set forth the entire understanding and agreement between us with respect to the subject matter hereof. The following sections, as well as those by their sense and context, will survive termination or expiration of this Agreement: Section 10 (Ownership), Section 11 (Trademark), Section 14 (Limitation of Liability), Section 15 (Indemnity), Section 16 (Legal) and Section 17 (Miscellaneous).