Customer Terms of Use

Last updated January 23, 2020

‍Thanks for using TIMU! These Customer Terms of Service (the “Customer Terms”) govern your access and use of our online workplace collaboration services, websites, and client software (the “Services”). Please read them carefully. If you are a Customer (defined below), these Customer Terms govern your access and use of our Services. If you are being invited to a workspace set up by a Customer, the Team Member Terms of Service (the “Team Member Terms”) govern your access and use of the Services.

These Customer Terms and any Order Form (as defined below) are a legally binding contract (“Agreement”) between you and TIMU, LLC (“TIMU”). As part of these Team Member Terms.  “We”, “our” and “us” refers to the TIMU.

Our Privacy Policy explains how we collect and use your information while the Acceptable Use Policy outlines your responsibility when using the Services, both are incorporated by reference into these Customer Terms.  By using the Services, you agree to comply with the most recent version of our Privacy Policy and Acceptable Use Policy. If you access or use the Services, or continue accessing or using the Services after being notified of a change to the Customer Terms, Privacy Policy or the Acceptable Use Policy, you confirm that you have read, understand and agree to be bound by the Customer Terms,  Acceptable Use Policy, and Privacy Policy.

“Customer” is the organization that you represent in agreeing to the Agreement. If your workspace is being set up by someone who is not formally affiliated with an organization, Customer is the individual creating the workspace. For example, if you signed up using a personal email address and invited a couple of friends to work on a new startup idea but haven't formed a company yet, you are the Customer.

If you purchase subscription(s), create a workspace (i.e., a digital space where a group of users may access the Services), invite team members to that workspace, or use or allow use of that workspace after being notified of a change to these Customer Terms, you acknowledge your understanding of the then-current Agreement and agree to the Agreement on behalf of Customer. Please make sure you have the necessary authority to enter into the Agreement on behalf of Customer before proceeding.



‍RELATIONSHIP BETWEEN CUSTOMER, TIMU, AND TEAM MEMBERS
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‍Individuals authorized by Customer to access the Services (an “Team Members”) may submit content or information to the Services, such as messages or files (“Customer Data”), and Customer may exclusively provide us with instructions on what to do with it. For example, Customer may provision or deprovision access to the Services, enable or disable third party integrations, manage permissions, retention and export settings, transfer or assign workspaces, share channels, or consolidate workspaces or channels with other workspaces or channels. Customer will (a) inform Team Members of all Customer policies and practices that are relevant to their use of the Services and of any settings that may impact the processing of Customer Data; and (b) ensure the transfer and processing of Customer Data under the lawful is lawful.

Ordering Team Subscriptions
A subscription to start a team allows an Team Member to access the Services. No matter the role, a subscription is required for each Team Member. A subscription may be procured through the Services interface, or in some cases, via an order form entered into between Customer and us (each, an “Order Form”).  Each Team Member must agree to the Team Member Terms to activate their subscription. Subscriptions commence when we make them available to Customer and continue for the term specified in the Services “check-out” interface or in the Order Form, as applicable. Each subscription is for a single Team Member for a specified term and is personal to that Team Member. We sometimes modify the Customer Terms, but such modifications are specifically spelled out and agreed to in a written and signed Order Form.

Team Member or Customer Feedback
The more suggestions our customers make, the better the Services become. If Customer sends us any feedback or suggestions regarding the Services, there is a chance we will use it, so Customer grants us (for itself and all of its Team Members and other Customer personnel) an unlimited, irrevocable, perpetual, sublicensable, transferable, royalty-free license to use any such feedback or suggestions for any purpose without any obligation or compensation to Customer, any Team Member or other Customer personnel.

Third Party Products
Our Services may include third party applications, services, or content (individually referred to as a “Third Party Product”).  Any such use is subject to the end-user license terms or use agreement that governs such Third Party Product and Customer understands and agrees that TIMU has no liability with respect to Customer’s use of such Third Party Product.If a Third Party Product is enabled for Customer’s workspace, please be mindful of any Customer Data that will be shared with the third party provider and the purposes for which the provider requires access. We will not be responsible for any use, disclosure, modification or deletion of Customer Data that is transmitted to, or accessed by, a Third Party Product.
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‍CUSTOMER AND TEAM MEMBER
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Use of the Services
Customer must comply with the Agreement and ensure that its Team Members comply with the Agreement and the Team Member Terms. We may review conduct for compliance purposes, but we have no obligation to do so. We aren't responsible for the content of any Customer Data or the way Customer or its Team Members choose to use the Services to store or process any Customer Data. The Services are not intended for and should not be used by anyone under the age of sixteen. Customer must ensure that all Team Members are over sixteen years old. Customer is solely responsible for providing all necessary hardware, applications and high speed internet service for itself and its Team Members to access and use the Services.Unless Customer has entered into a written agreement with TIMU to the contrary, Customer acknowledges that TIMU is not a “Business Associate” as defined in the Health Insurance Portability and Accountability Act and related amendments and regulations as updated or replaced (“HIPAA”), and that the Services are not HIPAA compliant. Customer must not use, disclose, transmit or otherwise process any “Protected Health Information” as defined in HIPAA (“PHI”) through the Services. Customer agrees that we cannot support and have no liability for PHI received from Customer, notwithstanding anything to the contrary herein.

Our Removal Rights
If we believe that there is a violation of the Agreement that can simply be remedied by Customer’s removal of certain Customer Data or Customer’s disabling of a Third Party Product, we will, in most cases, ask Customer to take direct action rather than intervene. However, we may directly step in and take what we determine to be appropriate action, if Customer does not take appropriate action, or if we believe there is a credible risk of harm to us, the Services, Team Members, or any third parties.


‍PAYMENT OBLIGATIONS

Payment Terms
For Customers that purchase our Services, fees are specified at the Services interface “check-out” and in the Order Form(s) — and must be paid in advance. Payment obligations are non-cancelable and, except as expressly stated in the Agreement, fees paid are non-refundable. For clarity, in the event Customer downgrades any subscriptions from a paid plan to a free plan, Customer will remain responsible for any unpaid fees under the paid plan, and Services under the paid plan will be deemed fully performed and delivered upon expiration of the initial paid plan subscription term. If we agree to invoice Customer by email, full payment must be received within thirty (30) days from the invoice date. Fees are stated exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”). Customer will be responsible for paying all Taxes associated with its purchases, except for those taxes based on our net income. Should any payment for the Services be subject to withholding tax by any government, Customer will reimburse us for such withholding tax.

Non-Payment
If any fees owed to us by Customer (excluding amounts disputed reasonably and in good faith) are thirty (30) days or more overdue, we may, without limiting our other rights and remedies, downgrade any fee-based Services to free plans or disable Customer’s access until those amounts are paid in full, so long as we have given Customer ten (10) or more days’ prior notice that its account is overdue. Notwithstanding our responsibilities under the “Services” section below, Customer acknowledges and agrees that a downgrade will result in a decrease in certain features and functionality and potential loss of access to Customer Data.



‍SERVICE
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Provisioning of Services
We will (a) make the Services available to Customer and its Team Members as described in the Agreement; and (b) not use or process Customer Data for any purpose without Customer’s prior written instructions; provided, however, that “prior written instructions” will be deemed to include use of the Services by Team Members and any processing related to such use or otherwise necessary for the performance of the Agreement.We may update the Services from time to time.  If we change the Services in a way that materially reduces their functionality, we will notify the Customer at the email address provided and may terminate the Services with thirty (30) days’ of the change to terminate this Agreement.  

Protecting Customer Data
The protection of Customer Data is a top priority for us so we will maintain commercially reasonable administrative, physical, and technical safeguards. Those safeguards will include measures for preventing unauthorized access, use, modification, deletion and disclosure of Customer Data by our personnel. Before sharing Customer Data with any of our third party service providers, we will ensure that the third party maintains, at a minimum, reasonable data practices for maintaining the confidentiality and security of Customer Data and preventing unauthorized access. Customer (not us) bears sole responsibility for adequate security, protection and backup of Customer Data when in Customer’s or its representatives’ or agents’ possession or control. We are not responsible for what Customer’s Team Members or Third Party Products do with Customer Data, which is Customer’s sole responsibility.RepresentativesWe may leverage our employees, those of our corporate affiliates and third party contractors (the “TIMU Representatives”) in exercising our rights and performing our obligations under the Agreement. We will be responsible for each Representative’s compliance with our obligations under the Agreement.

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OWNERSHIP AND PROPRIETY RIGHTS

Customer Data
As between us on the one hand, and Customer and any Team Members on the other, Customer will own all Customer Data. Subject to the terms and conditions of the Agreement, Customer (for itself and all of its Team Members) grants us and the Representative a worldwide, non-exclusive, limited term license to access, use, process, copy, distribute, perform, export and display Customer Data, and any Third Party Products created by or for Customer, only as reasonably necessary (a) to provide, maintain and update the Services; (b) to prevent or address service, security, support or technical issues; (c) as required by law or court order; and (d) as expressly permitted in writing by Customer. Customer represents and warrants that it has secured all rights in and to Customer Data from its Team Members as may be necessary to grant this license.

License to Use TIMU Intellectual Property
We own and will continue to own our Services, including all related intellectual property rights. We grant to Customer a non-sublicensable, non-transferable, non-exclusive, limited license for Customer and its Team Members to use the object code version of these components, but solely as necessary to use the Services and in accordance with the Agreement and the Team Member Terms. All of our rights not expressly granted by this license are hereby retained.



TERM AND TERMINATION

Agreement Term
As further described below, a free subscription continues until terminated, while a paid subscription has a term that may expire or be terminated. The Agreement remains effective until all subscriptions ordered under the Agreement have expired or been terminated or the Agreement itself terminates. Termination of the Agreement will terminate all subscriptions and all Order Forms.

Auto-Renewal
Unless an Order Form says something different, (a) all subscriptions automatically renew (without the need to go through the Services-interface “check-out” or execute a renewal Order Form) for additional periods equal to one (1) year or the preceding term, whichever is shorter; and (b) the per-unit pricing during any automatic renewal term will remain the same as it was during the immediately prior term. Either party can give the other notice of non-renewal at least thirty (30) days before the end of a subscription term to stop the subscriptions from automatically renewing.

Termination for Cause
We or Customer may terminate the Agreement on notice to the other party if the other party materially breaches the Agreement and such breach is not cured within thirty (30) days after the non-breaching party provides notice of the breach. Customer is responsible for its Team Member, including for any breaches of this Agreement caused by its Team Members. We may terminate the Agreement immediately if we reasonably believe that the Services are being used by Customer or its Team Members in violation of applicable law.

Termination Without Cause
Either party may terminate a free subscriptions immediately without cause. Effect of TerminationUpon any termination for cause by Customer, we will refund Customer any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by us, Customer will pay any unpaid fees covering the remainder of the term of those subscriptions after the effective date of termination. In no event will any termination relieve Customer of the obligation to pay any fees payable to us for the period prior to the effective date of termination.

Data Portability and Deletion
We are custodians of Customer Data. During the term of a workspace’s subscriptions, Customer will be permitted to export or share certain Customer Data from the Services; provided, however, that because we have different products with varying features and Customer has different retention options, Customer acknowledges and agrees that the ability to export or share Customer Data may be limited or unavailable depending on the type of Services plan in effect and the data retention, sharing or invite settings enabled. Following termination or expiration of a  team workspace’s subscriptions, we will have no obligation to maintain or provide any Customer Data and may thereafter, unless legally prohibited, delete all Customer Data in our systems or otherwise in our possession or under our control.


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REPRESENTATIONS DISCLAIMER OF WARRANTIES

‍Customer represents and warrants that it has validly entered into the Agreement and has the legal power to do so. Customer further represents and warrants that it is responsible for the conduct of its Team Members and their compliance with the terms of this Agreement and the Team Member Terms.EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, THE SERVICES AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND TIMU EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CUSTOMER ACKNOWLEDGES THAT WE DO NOT WARRANT THAT THE SERVICES WILL BE NON-INFRINGING, UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE.


LIMITATION OF LIABILITY

‍IN NO EVENT WILL TIMU OR ITS REPRESENTATIVES’ BE LIABLE TO CUSTOMER, TEAM MEMBERS OR TO ANY THIRD PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OTHER THAN IN CONNECTION WITH TIMU’S INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT WILL EITHER TIMU OR ITS REPRESENTATIVES’ ENTIRE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY CUSTOMER HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE LAST EVENT GIVING RISE TO LIABILITY. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.The limitations under this “Limitation of Liability” section apply with respect to all legal theories, whether in contract, tort or otherwise, and to the extent permitted by law. The provisions of this “Limitation of Liability” section allocate the risks under this Agreement between the parties, and the parties have relied on these limitations in determining whether to enter into this Agreement and the pricing for the Services.


‍TIMU'S INDEMNIFICATION OBLIGATIONS

‍We will defend Customer from and against any and all third party claims, actions, suits, proceedings, and demands alleging that the use of the Services as permitted under the Agreement infringes or misappropriates a third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify Customer for all reasonable attorney’s fees incurred and damages and other costs finally awarded against Customer in connection with or as a result of, and for amounts paid by Customer under a settlement we approve of in connection with, a Claim Against Customer; provided, however, that we will have no liability if a Claim Against Customer arises from (a) Customer Data or Third Party Products; and (b) any modification, combination or development of the Services that is not performed by us, including in the use of any application programming interface (API). Customer must provide us with prompt written notice of any Claim Against Customer and allow us the right to assume the exclusive defense and control, and cooperate with any reasonable requests assisting our defense and settlement of such matter. This section states our sole liability with respect to, and Customer’s exclusive remedy against us and the Representatives for, any Claim Against Customer.
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‍CUSTOMER'S INDEMNIFICATION OBLIGATION

‍Customer will defend TIMU and its Representatives  (collectively, the “TIMU Indemnified Parties”) from and against any and all third party claims, actions, suits, proceedings, and demands arising from or related to Customer’s or any of its Team Members’ violation of the Agreement or the Team Member Terms (a “Claim Against Us”), and will indemnify the TIMU Indemnified Parties for all reasonable attorney’s fees incurred and damages and other costs finally awarded against a TIMU Indemnified Party in connection with or as a result of, and for amounts paid by a TIMU Indemnified Party under a settlement Customer approves of in connection with, a Claim Against Us. We must provide Customer with prompt written notice of any Claim Against Us and allow Customer the right to assume the exclusive defense and control, and cooperate with any reasonable requests assisting Customer’s defense and settlement of such matter. This section states your sole liability with respect to, and the TIMU Indemnified Parties’ exclusive remedy against Customer for, any Claim Against Us.


‍LIMITATIONS ON INDEMNIFICATIONS

‍Notwithstanding anything contained in the two preceding sections, (a) an indemnified party will always be free to choose its own counsel if it pays for the cost of such counsel; and (b) no settlement may be entered into by an indemnifying party, without the express written consent of the indemnified parties (such consent not to be unreasonably withheld), if (i) the third party asserting the claim is a government agency, (ii) the settlement arguably involves the making of admissions by the indemnified parties, (iii) the settlement does not include a full release of liability for the indemnified parties, or (iv) the settlement includes terms other than a full release of liability for the indemnified parties and the payment of money.


GENERAL PROVISIONS

Publicity
Customer grants us the right to use Customer’s company name and logo as a reference for marketing or promotional purposes on our website and in other public or private communications with our existing or potential customers, subject to Customer’s standard trademark usage guidelines as provided to us from time-to-time.

Force Majeure
Neither us nor Customer will be liable by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of a party, which may include denial-of-service attacks, a failure by a third party hosting provider or utility provider, strikes, shortages, riots, fires, acts of God, war, terrorism, and governmental action.

Relationship of the Parties; No Third Party Beneficiaries
The parties are independent contractors. The Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. There are no third party beneficiaries to the Agreement.Email and TIMU MessagesExcept as otherwise set forth herein, all notices under the Agreement will be by email, although we may instead choose to provide notice to Customer through the Services. Notices to TIMU will be sent to support@timu.com, except for legal notices, such as notices of termination or an indemnifiable claim, which must be sent to legal@timu.com and sent via certified mail to Attn: General Counsel, TIMU, LLC, 200 Spectrum Center Drive, Suite 2000, Irvine, California 92618. Notices will be deemed to have been duly given (a) the day after it is sent, in the case of notices through email or on the date received by certified mail; and (b) the same day, in the case of notices through the Services.

Modifications
As our business evolves, we may change these Customer Terms and the other components of the Agreement (except any Order Forms). If we make a material change to the Agreement, we will provide Customer with reasonable notice prior to the change taking effect, either by emailing the email address associated with Customer’s account or by messaging Customer through the Services. Customer can review the most current version of the Customer Terms at any time by visiting this page and by visiting the most current versions of the other pages that are referenced in the Agreement. The materially revised Agreement will become effective on the date set forth in our notice, and all other changes will become effective upon posting of the change. If Customer (or any Team Member) accesses or uses the Services after the effective date, that use will constitute Customer’s acceptance of any revised terms and conditions.

Survival and Severability
If any provision in this Agreement is held invalid or unenforceable by a body of competent jurisdiction, such provision will be construed, limited or, if necessary, severed to the extent necessary to eliminate such invalidity or unenforceability.  The parties agree to negotiate in good faith a valid, enforceable substitute provision that most nearly effects the parties’ original intent in entering into this Agreement or to provide an equitable adjustment in the event no such provision can be added.  The other provisions of this Agreement will remain in full force and effect. Expiration or termination of this Agreement shall not relieve either Party of its obligations regarding intellectual property, warranties, confidentiality, indemnification, and limitation of liability.  

Waiver
No failure or delay by either party in exercising any right under the Agreement will constitute a waiver of that right. No waiver under the Agreement will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver.

Assignment
Customer may not assign any of your rights or delegate your obligations under this Agreement, whether by operation of law or otherwise, without the prior written consent of us (not to be unreasonably withheld). We may assign this Agreement in its entirety (including all terms and conditions incorporated herein by reference) for any reason without notice and without Customer’s consent.

Entire Agreement
The Agreement, including these Customer Terms and all referenced pages and Order Forms, if applicable, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Without limiting the foregoing, the Agreement supersedes the terms of any online agreement electronically accepted by Customer or any Team Member. However, to the extent of any conflict or inconsistency between the provisions in these Customer Terms and any other documents or pages referenced in these Customer Terms, the following order of precedence will apply: (1) the terms of any Order Form (if any),(2) the Customer Terms and (3) finally any other documents or pages referenced in the Agreement. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order, vendor onboarding process or web portal, or any other Customer order documentation (excluding Order Forms) will be incorporated into or form any part of the Agreement, and all such terms or conditions will be null and void.

Contacting TIMU
Please also feel free to contact us if you have any questions about TIMU’s Team Member Terms of Service. You may contact us at support@timu.com or at our mailing address below:

TIMU, LLC
200 Spectrum Center Drive, Suite 2000
Irvine, California 92618