Terms of Use

FOGLOGIC, INC.
WEBSITE TERMS OF USE

Last Updated: July 7, 2019

These terms and conditions of use (these “Terms” or “Terms of Use”) form a contract between you and FogLogic Inc., a Delaware corporation (“FogLogic“, “we“, “us“, or “our“) that governs your access and use of the FogLogic website at https://foglogic.com and all associated sites linked to https://foglogic.com by FogLogic, its subsidiaries and affiliates (collectively, the “Site“).

You may use the Site only in compliance with these Terms and only if you have the power to form a contract with FogLogic and are not barred under any applicable laws from doing so. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU MUST NOT ACCESS OR USE THE SITE. Should you have any questions concerning these Terms, please contact us at legal@foglogic.com.

1. CHANGES TO THESE TERMS
We reserve the right to revise these Terms from time to time. We will date and post the most current version of these Terms on the Site. Any changes will be effective upon posting the revised version of these Terms on https://foglogic.com/ (or such later effective date as may be indicated at the top of the revised Terms). If in our sole discretion we deem a revision to these Terms to be material, we may notify you via by posting a notice on the Site or by email to the email address you have provided to us (if applicable). We encourage you to check the date of these Terms whenever you visit the Site to see if these Terms have been updated. Your continued access or use of any portion of the Site constitutes your acceptance of such changes and the revised Terms. If you don’t agree to any of the changes, we are not obligated to keep providing you with access to the Site, and you must stop using the Site.

2. USE OF THE SITE; SERVICES
You may use the Site only in strict compliance with these Terms and all applicable laws.  As long as you comply with these Terms, FogLogic grants you a personal, non-exclusive, non-transferable, limited privilege to enter and use the Site.

The site will advertise, market information on or provide access to FogLogic’s products or services.  Your use of the FogLogic products or services is subject to your agreement to the terms and conditions of a separate Master Services Agreement and/or other agreements.  Agreeing to these Terms does not allow you to use any FogLogic product or service unless otherwise explicitly stated. 

3. CONSENT TO ELECTRONIC COMMUNICATIONS AND SOLICITATION
By registering with FogLogic, you understand that we may send you communications or data regarding the Site or FogLogic’s products and services, including but not limited to: (a) notices about your use of the Site, including any notices concerning violations of use; (b) updates; and (c) promotional information and materials regarding FogLogic’s products and services, via electronic mail. We will give you the opportunity to opt-out of receiving promotional electronic mail from us by following the opt-out instructions provided in the message.  For additional information, please see FogLogic’s Privacy Policy at https://foglogic.com/privacy-policy/.

4. YOUR DATA
Except for material that we license to you, we don’t claim ownership of any data or content that may be uploaded, transmitted, stored, or processed in connection with the Site (collectively, “Your Data”). We also don’t control, verify, or endorse Your Data that you make available to or on the Site.

If you enable any features or take advantage of any functionality that allows you to share Your Data with others, others may have access to any of Your Data that you may have shared.

You hereby grant FogLogic and its agents the right to transmit, use and disclose Your Data solely to the extent necessary to provide the features and functionality of the Site, as otherwise permitted by these Terms, or to comply with any request of a governmental or regulatory body (including subpoenas or court orders), as otherwise required by law, or to respond to an emergency.

You represent and warrant that: (a) you have all the rights to Your Data necessary for you to use the Site and to grant the rights in this Section; and (b) the collection, storage, use, or transmission of Your Data doesn’t violate any law or these Terms.

You will: (a) be solely responsible for the nature, quality and accuracy of Your Data; (b) ensure that Your Data complies with these Terms and any and all applicable laws and regulations; (c) promptly handle and resolve any notices and claims relating to Your Data, including any notices sent to you by any person claiming that Your Data violates any person’s rights, such as take-down notices pursuant to the Digital Millennium Copyright Act and any other notices; and (d) maintain appropriate security, protection and backup copies of Your Data, which may include your use of additional encryption technology to protect Your Data from unauthorized access. FogLogic will have no liability of any kind as a result of the deletion of, correction to, destruction of, damage to, loss of or failure to store or encrypt Your Data.

You must immediately notify FogLogic in writing of any unauthorized use of: (a) Your Data or (b) the Site that comes to your attention. In the event of any such unauthorized use by any third party that obtained unauthorized access through you, you will take all steps necessary to terminate such unauthorized use. You will provide FogLogic with such cooperation and assistance related to any such unauthorized use as FogLogic may reasonably request.

5. YOUR DATA STORED IN THE UNITED STATES
The Site is provided from the United States. By using and accessing the Site, you understand and consent to the storage and processing of Your Data and any other personal information in the United States. If you are located outside the United States, FogLogic reserves the right to store and process Your Data, including without limitation personal information, outside of the United States.  FogLogic complies with the requirements of the EU-US Privacy Shield Framework and the Swiss-US Privacy Shield Framework.  Any questions on storage or processing of Your Data should be sent to legal@foglogic.com

6. SUSPENSION AND TERMINATION OF ACCESS TO THE SITE
We reserve the right to temporarily suspend or terminate your access to or use of the Site at any time in our sole discretion, with or without cause, with or without notice, and without incurring liability of any kind. For example, we may suspend or terminate your access to or use of the Site for: (a) the actual or suspected violation of these Terms; (b) the use of the Site or its features in a manner that may cause FogLogic to incur legal liability or disrupt others’ use of the Site; (c) the suspicion or detection of any malicious code, virus or other harmful code transmitted by you or in your account; (d) scheduled downtime and recurring downtime; (e) use of excessive storage or processing capacity or bandwidth; or (f) unplanned technical problems and outages. If, in FogLogic’s determination, the suspension might be indefinite and/or FogLogic has elected to terminate your access to the Site, FogLogic will use commercially reasonable efforts to notify you through the Site and/or by email to the email address associated with your account. You acknowledge that if your access to the Site is suspended or terminated, you may no longer have access to Your Data that is stored by the Site.

7. ACCEPTABLE USE
You may only use the Site if you do so in compliance with our standard policies and procedures; if you do not, we reserve the right to terminate your use of or access to the Site at any time in our sole discretion.  You must not use the Site to harm others or the Site itself. For example, you must not use the Site to harm, threaten, or harass another person, organization, or FogLogic. You must not: damage, disable, overburden, or impair the Site (or any network connected to the Site); use any unauthorized means to modify, reroute, or gain access to the Site and its features and functionality or attempt to carry out such activities; or use any automated process or service (such as a bot, a spider, or periodic caching of information stored by FogLogic) to access or use the Site. In addition, you promise that you will not and will not encourage or assist any third party to:

  1. use the Site in any manner or for any purpose other than as expressly permitted by these Terms, the Privacy Policy, or any other policy, instruction or terms applicable to the Site that are made available on or through the Site from time to time (“Policies“);
  2. sell, lend, rent, resell, lease, sublicense or otherwise transfer any of the rights granted to you with respect to the Site to any third party;
  3. remove, obscure or alter any proprietary rights notices pertaining to the Site or any of FogLogic’s products or services advertised or displayed on the Site;
  4. access or use the Site in a way intended to improperly avoid: i) incurring fees or ii) exceeding usage limits or quotas;
  5. use the Site in any situation in which the failure of the Site could lead to death, personal injury, or physical property or environmental damage;
  6. use the Site to: (i) engage in any unlawful or fraudulent activity or perpetrate a hoax or engage in phishing schemes or forgery or other similar falsification or manipulation of data; (ii) send unsolicited or unauthorized junk mail, spam, chain letters, pyramid schemes or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (iii) store or transmit inappropriate content: (1) containing unlawful, defamatory, threatening, pornographic, abusive, libelous or otherwise objectionable material of any kind or nature, (2) containing any material that encourages conduct that could constitute a criminal offense, or (3) in a way that violates or infringes upon the intellectual property rights or the privacy or publicity rights of any person or entity or that may otherwise be unlawful or give rise to civil or criminal liability; (iv) store or transmit anything that contains or is used to initiate a denial of service attack, software viruses or other harmful or deleterious computer code, files or programs such as Trojan horses, worms, time bombs, cancelbots, or spyware; or (v) abuse, harass, stalk or otherwise violate the legal rights of a third party;
  7. interfere with or disrupt servers or networks used by FogLogic to provide the Site or used by other users to access the Site, or violate any third party regulations, policies or procedures of such servers or networks or harass or interfere with another user’s full use and enjoyment of the Site;
  8. access or attempt to access FogLogic’s customer accounts, computer systems or networks not covered by these Terms, through password mining or any other means; or,
  9. cause, in FogLogic’s sole discretion, inordinate burden on the Site or FogLogic’s system resources or capacity.

We will make all judgments concerning the applicability of these guidelines in our sole and exclusive discretion. We reserve the right to determine whether and what action to take in response to each such instance, and any action or inaction in a particular instance will not dictate or limit our response to a future instance. We will not assume or have any liability for any action or inaction with respect to Your Data.

8. UPDATES TO THE SITE
FogLogic reserves the right to make necessary unscheduled deployments of changes, updates or enhancements to the Site at any time. We may add or remove functionalities or features, and we may suspend or terminate a Site altogether.

9. THIRD PARTY SERVICES AND YOUR DATA
The Site may contain features and functionalities linking you or providing you with certain functionality and access to third party content or services, including websites, directories, servers, networks, systems, information and databases, applications, software, programs, products or services, and the Internet as a whole. Similarly, some features and functionalities of the Site may be provided by third parties, and the use of such features and functionalities may require you to provide Your Data to such third parties. We may also provide information regarding third parties (including third party websites) and some third party content to you on or through the Site. We are not, however, responsible for anything on a third party site or any third party content you may gain access to when using the Site, and you irrevocably waive any claim against us with respect to such sites and third party content. FogLogic shall have no liability, obligation or responsibility for any correspondence, purchase or promotion between you and any third party. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any third party.  Should you incur any potential or actual liability resulting from your use of any third party services (which are not required to use the Site), or should you suffer data loss or other losses as a result of problems with any third party services, we will not be responsible unless the problem was the direct result of our negligence or the breach of these Terms.

10. FOGLOGIC PROPRIETARY RIGHTS; CONFIDENTIALITY
10.1 Proprietary Rights
As between FogLogic and you, FogLogic or its licensors own and reserve all right, title and interest in and to the Site and all hardware, software and other items used to provide the Site, other than the rights explicitly granted to you to use the Site in accordance with these Terms. No title to or ownership of any proprietary rights related to the Site is transferred to you pursuant to these Terms. All rights not explicitly granted to you are reserved by FogLogic. In the event that you provide comments, suggestions and recommendations to FogLogic with respect to the Site (including, without limitation, with respect to modifications, enhancements, improvements and other changes to the Site) (collectively, “Feedback“), you hereby grant to FogLogic a world-wide, royalty free, irrevocable, perpetual license to use any Feedback in connection with the Site.

 

10.2 Confidentiality
You acknowledge that you may obtain proprietary information of FogLogic (“Proprietary Information”). Such Proprietary Information shall belong solely to FogLogic and includes, but is not limited to, trade secrets, know-how, inventions (whether or not patentable), techniques, processes, programs, ideas, algorithms, schematics, testing procedures, software design and architecture, computer code, internal documentation, design and function specifications, product requirements, problem reports, analysis and performance information, benchmarks, software documents, and other technical, business, product, marketing and financial information, plans and data. In regard to this Proprietary Information:
You shall not use (except as expressly authorized by these Terms) or disclose FogLogic’s Proprietary Information without our prior written consent unless such Proprietary Information becomes part of the public domain without breach of these Terms.
You agree to take all reasonable measures to maintain the Proprietary Information in confidence.
If you are an organization, you will disclose the Proprietary Information only to those of your employees and consultants as are necessary for the use expressly and unambiguously authorized hereunder, and only if such employees and consultants are bound by confidentiality obligations no less restrictive than those herein. You shall not, without our prior written consent, disclose or otherwise make available any of the Proprietary Information or copies thereof to any third party.

11. PRIVACY
In order to operate and provide the Site, we collect certain information from and about you. As part of the Site, we may also automatically upload Your Data, information about your computer or device, your use of the Site, and Site performance. We use and protect that information as described in our privacy policy (“Privacy Policy“) which you may review at https://foglogic.com/privacy-policy/. You further acknowledge and agree that we may access or disclose information about you, including Your Data, in order to: (a) comply with the law or respond to lawful requests or legal process; (b) protect the rights or property of FogLogic or our customers, including the enforcement of our agreements or policies governing your use of the Site; or (c) act on a good faith belief that such access or disclosure is necessary to protect the personal safety of FogLogic employees, customers, or the public.

We retain the right to block or otherwise prevent delivery of any type of file, email or other communication to or from the Site as part of our efforts to protect our products and services, protect our customers, or stop you from breaching these Terms.

12. NO WARRANTY
We will use reasonable efforts consistent with prevailing industry standards to maintain the Site in a manner which minimizes errors and interruptions.  The Site may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by us or by third-party providers, or because of other causes beyond our reasonable control, but we shall use reasonable efforts to provide advance notice in writing or by e-mail of any significant scheduled service disruption.  However, WE do not warrant that the SITE will be uninterrupted or error free; nor do WE make any warranty as to the INFORMATION OR DATA that may be obtained from use of the SITE.EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SITE, AND ACCESS AND USE OF THE SITE, IS PROVIDED “AS IS” AND WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
13. INDEMNIFICATION
To the extent permitted by applicable law, you will defend FogLogic against any cost, loss, damage, or other liability (including attorneys’ fees) arising from any third party demand arising out of or related to your use of the Site or a claim that any of Your Data provided by you or generated from your use of the Site: (a) infringes a patent, trademark, or copyright of a third party, or misappropriates a trade secret (to the extent that such misappropriation is not the result of FogLogic’s actions); or (b) violates applicable law or these Terms. FogLogic will reasonably notify you of any such claim or demand that is subject to your indemnification obligation.

14. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, AND TO THE FULLEST EXTENT OF THE LAW, EXCEPT FOR BODILY INJURY OF A PERSON, WE AND OUR SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND OUR REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED ONE HUNDRED DOLLARS ($100.00), IN EACH CASE, WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

15. GOVERNING LAW; LOCATION FOR RESOLVING DISPUTES
The laws of the State of California govern the interpretation of these Terms and apply to claims for breach of these Terms, without reference to or application of conflict of laws principles. The parties specifically exclude from application to these Terms the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act. You (and FogLogic) irrevocably consent to the exclusive jurisdiction and venue of the state or federal courts for Santa Clara County, California for all disputes arising out of or relating to these Terms. FogLogic may assign this contract to another entity at any time without notice to you.

16. NOTICES
We may send you, in electronic form, information about the Site or FogLogic’s products and services, additional information, and information the law requires us to provide. We may provide required information to you by email at the address you may have provided to FogLogic during your use of the Site, by posting notice on the Site or by providing access to a website that we identify. Notices emailed to you will be deemed given and received when the email is sent. Notices posted to the Site will be deemed given on the date which they were posted.  If you don’t consent to receive notices electronically, you must stop accessing or using the Site.

17. MISCELLANEOUS
17.1. Severability; Entire Agreement
These Terms apply to the maximum extent permitted by relevant law. If a court holds that we cannot enforce a part of these Terms as written, you and we will replace those terms with similar terms to the extent enforceable under the relevant law, but the rest of these Terms will remain in effect. This is the entire contract between you and us regarding the Site. It supersedes any prior contract or oral or written statements regarding your use of the Site.

17.2. Assignment and transfer
We may assign, transfer, or otherwise dispose of our rights and obligations under these Terms, in whole or in part, at any time without notice. You may not assign this contract or transfer any rights given to you herein.

17.3. Independent Contractors; No third-party beneficiaries
FogLogic and you are not legal partners or agents; instead, our relationship is that of independent contractors. This contract is solely for your and our benefit. It is not for the benefit of any other person, except for permitted successors.

17.4. Claims
You must bring any claim related to these Terms or the Site within one year of the date you could first bring the claim, unless your local law requires a longer time to file claims. If it isn’t filed in time, the claim is permanently barred.

17.5. Waiver
The failure of either party to insist upon or enforce strict performance of any of the provisions of these Terms or to exercise any rights or remedies under these Terms will not be construed as a waiver or relinquishment to any extent of such party’s right to assert or rely upon any such provision, right or remedy in that or any other instance; rather, the same will remain in full force and effect.

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