Terms of Service
Effective August 4 2017
THIS TERMS OF SERVICE AGREEMENT (this “Agreement”) is made between Katallyze, LLC (“Company”) a New York limited liability company and any person (“User” or “You”) who completes the registration process to open and maintain an account with the Company’s web-based research and consultation service (“Service”). Company and User are collectively referred to as the “Parties.”
The following terms and conditions (the “Terms of Service”) govern User’s use of Company’s Website and Service. These Terms of Service create a binding legal agreement between you and Company regarding User’s use of the Website. User’s access to the Website is subject to these Terms of Service. Company reserves the right to suspend or terminate accounts used for activity prohibited by these Terms of Service. Company additionally reserves the right to update and change the Terms of Service by posting updates and changes to the Website or otherwise through the Service. User is advised to check the Terms of Service from time to time for any updates or changes that may impact User.
BY CLICKING THE ACCEPTANCE BUTTON OR OTHERWISE ACCESSING, USING OR INSTALLING ANY PART OF THE SERVICE, USER EXPRESSLY AGREES TO AND CONSENTS TO BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT. IF USER DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THE BUTTON INDICATING NON-ACCEPTANCE MUST BE SELECTED, COMPANY WILL PROMPTLY CANCEL THIS TRANSACTION AND USER MAY NOT ACCESS, USE OR INSTALL ANY PART OF THIS SERVICE.
1. Service Terms and Limitations.
a. Description; Proprietary Nature. Katallyze LLC provides a lead generations, sales training and business consultation. The Website and Service are proprietary to Company and are protected by intellectual property laws and international intellectual property treaties. User’s access to the Service is licensed and not sold. Subject to timely payment of all Fees and the terms and limitations set forth in this Agreement, Company agrees to provide User with personal, non-transferable and non-exclusive account enabling User to access and use the Service.
b. Accessibility. User agrees that from time to time the Website or Service may be inaccessible or inoperable for any reason, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which Company may undertake from time to time; or (iii) causes beyond the control of Company or which are not reasonably foreseeable by Company.
c. Equipment. User shall be solely responsible for providing, maintaining and ensuring compatibility with the Service, all hardware, software, electrical and other physical requirements for User’s use of the Website or Service, including, without limitation, telecommunications and Internet access connections and links, web browsers or other equipment, programs and services required to access and use the Website or Service.
d. Security. User shall be solely responsible for the security, confidentiality and integrity of all messages and the content that User receives, transmits through or stores on the Service. User shall be solely responsible for any authorized or unauthorized access to User’s account by any person. User agrees to bear all responsibility for the confidentiality of User’s password and all use or charges incurred from use of the Service with User’s password.
a. Non-exclusive. The Website and Service are offered to you on a non-exclusive basis.
b. Majority. To use the Website or Services, you must have reached the age of majority in the state or country in which you reside, be no less than eighteen (18) years of age, be fully able and competent to enter into and abide by the terms, conditions, obligations, affirmations, representations and warranties set forth in these Terms of Service, and be able to abide by and comply with these Terms of Service.
c. No Illegal, Unintended or Unauthorized Use. You may access the Website or Service solely for the intended purposes of the thereof, through the normal functionality of the same. You may not use the Website or Service for any illegal or unauthorized purposes. You may not use the Website or Service in a way that could damage its content or impair its operation in any way. You agree not to access, or attempt to access, any portion of the Website or Service by any means other than through the interface that is provided by Company, unless you have been specifically allowed to do so by the Company in a separate written agreement. You specifically agree not to access, or attempt to access, any portion of the Website or Service through any automated means, including use of scripts or bots. You also understand that by using the Website or Service you may be exposed to content created by third parties, including but not limited to content created by advertisers, or content that you might find offensive, indecent or objectionable.
d. Company’s Content. Company owns and retains all right, title and interest in and to the Website and Service, and all related technology, materials, data, tools, widgets, user activity reports, intellectual property, programming, development and design, including but not limited to the front and backend systems, visual design, Internet website and accompanying databases. These Terms of Service do not transfer any ownership rights in any of the foregoing to you or any third party. All of the content on the Website including without limitation, the text, software, scripts, graphics, photos, sounds, music, videos, interactive features, designs, trademarks, service marks, trade dress and logos contained herein (marks), are owned by or licensed to Company, subject to copyright and other intellectual property rights under the law. All content, data, information and other materials whether provided to the Company, furnished through the Service or otherwise produced during the scope thereof shall be the property of Company and may be utilized, repurposed, re-sold, commercialized or otherwise profited from by the Company in its sole and absolute discretion and without the consent or permission of, and without compensation or consideration paid to, the User or any other person or entity with whom the User is employed, retained, engaged or otherwise affiliated with. To the extent that any of the foregoing are deemed to be the sole property of the User, the User hereby grants the Company a non-exclusive, royalty-free, transferable, sub-licensable, worldwide license to use, store, display, reproduce, modify, create derivative works, perform, and distribute such items on the Website and through the Service. COMPANY IS FURNISHING AND CLIENT IS ACCEPTING THE SERVICES AND ANY ASSOCIATED PRODUCTS OR WORK PRODUCT OF THE COMPANY AND SERVICE IN “AS IS / WHERE IS” CONDITION AT THE TIME OF COMPLETION, WITH NO REPRESENTATIONS OR WARRANTIES OF ANY KIND INCLUDING, WITHOUT LIMITATION, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. COMPANY HAS NOT MADE AND IS NOT MAKING ANY EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SERVICES AND ANY WORK PRODUCT OR OTHER PRODUCTS ARISING FROM, OR IN CONNECTION WITH, THE SERVICES INCLUDING, WITHOUT LIMITATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. CLIENT’S ACCEPTANCE OF THE SERVICES AND ANY ASSOCIATED WORK PRODUCTS OR OTHER PRODUCTS SHALL BE DEEMED TO BE ACCEPTANCE OF THE SAME WITHOUT RELYING UPON ANY SUCH REPRESENTATION OR WARRANTY BY COMPANY OR ANY OTHER PERSON AND BASED SOLELY UPON THE CLIENT’S OWN INSPECTIONS, INVESTIGATION AND EVALUATION OF THE SERVICES PROVIDED BY THE COMPANY AND ANY ASSOCIATED WORK PRODUCT AND OTHER PRODUCTS. Content, data, information, and other materials on the Website or furnished through the Service is provided to you on an “as is” basis for Users information and personal use only and may not be copied, reproduced, distributed, transmitted, displayed, publicly performed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of the respective rights holders. The company makes no representations, warranties or guaranties of any kind (whether express or implied) with respect to the Services or the content, data, information or other materials produced in connection therewith or any results that may be desired, anticipated, expected by Users use thereof or reliance thereupon.
e. User Accounts. In order to access certain features of the Website or Service, you must create and/or log into a user account of Users own. Use of another’s account is not permitted. When creating and account, you must provide accurate and complete information. You are solely responsible for the activity that occurs in your account. You are also responsible for maintaining the security of your account password, as well as the passwords of any third-party services that you may have elected to link to your account. You agree to notify Company immediately of any breach of security or unauthorized use of your account. Company reserves the right to reclaim usernames on behalf of businesses or individuals that hold legal claim or trademark on those usernames.
f. User Content. The Website may provide you with the ability to post comments or share content (“User Content”). You grant to Company a non-exclusive, royalty-free, transferable, sub-licensable, worldwide license to use, store, display, reproduce, modify, create derivative works, perform, and distribute your User Content on the Website. In addition, you represent, warrant and agree that you own or have all licenses and rights to use and to authorize Company to enable, use, display, and distribute User Content. Company reserves the right to remove any material you post at any time and for any reason. User Content that constitutes inappropriate or illegal behavior, including without limitation, abusive, defamatory, obscene, or racist comments, or posts that violate local rules regarding online conduct are strictly prohibited. Company reserves the right to take down all such User Content. Company further reserves the right to take down User Content that is reported as spam or User Content that creates technical issues.
g. Local Rules. You hereby agree to comply with all applicable local rules regarding online conduct and acceptable content. Specifically you agree to comply with all applicable laws regarding the transmission of technical data from the country in which you reside. Company may remove content and accounts containing content that Company determine in Companys sole discretion are unlawful, offensive, threatening, libelous, defamatory, obscene or otherwise objectionable or violates any third partys intellectual property or other legal rights.
a. Payment. User shall pay Company for the Service pursuant to the charges, rates, fee structure or other consideration agreed to by the User on a project-by-project basis in connection with the Services utilized by the User and furnished by the Company (the “Fees”). The User shall provide valid credit card, Stripe or other approved payment method information for pre-approval of each contemplated transaction. Payment of the Fees shall be due and payable upon completion of each project. Payment will be processed as specified in each project or proposal and/or invoice and agreed upon by the User and the Company or any sub-contracted provider. When an individual project is marked as completed by the Company or any sub-contracted provider, Company will inform the User that the project is complete; upon such notice, Company shall have the right to concurrently charge the User’s credit card, bank account, Stripe account or other authorized payment account for the full amount of the agreed-upon fee in addition to merchant processing fees, if any. User shall thereupon pay the agreed-upon amount or request changes. If the User has not requested any changes or has taken no action after 10 business days, the amount charged shall be deemed an account stated and agreed to by the User. Notwithstanding the foregoing, Company expressly reserves the right to charge the Fees at any time, upon notice to User. Company expressly reserves the right to enter into separate contracts for services with different and/or alternate terms and conditions.
b. Collection and Taxes. All Fees, Taxes and other charges shall be billed to User’s credit card at the current international currency conversion rate. User shall be responsible for and shall pay Company all currency conversion charges, sales, use, value-added, personal property or other tax, duty or levy of any kind, including interest and penalties thereon (“Taxes”), whether imposed now or hereinafter by any governmental entity. By agreeing to these terms, you are giving Company permission to charge your on-file credit card, Stripe account, or other approved methods of payment for fees that you authorize for Company. Depending on your project specifications, Company may charge you on a one-time or recurring basis. User hereby expressly authorizes Company to charge such User the full amount owed due and payable on any completed project, as well as Company’s merchant processing fee, if any. User shall promptly pay Company in the event of any refusal of User’s credit card issuer to pay any amount to Company for any reason. User agrees to pay interest at the rate of 1.5% per month on any outstanding balance, together with costs of collection, including attorney’s fees and costs. In the event User fails to pay any amount in advance, Company may immediately suspend or terminate this Agreement and User’s access to the Service.
4. Copyright Policy; DMCA Compliance.
It is Companys policy to comply fully with the Digital Millennium Copyright Act and other applicable intellectual property laws (collectively the “Act”). This paragraph lists Companys requirements under the Act for notice of copyright infringement and for responses to such a notice if you or your materials are allegedly infringing. As explained in more detail below, the Act requires the removal or disabling of access to content claimed to be, or reasonably determined by Company, the subject of infringing activity. If the Act requires content to be removed from Companys Website, Company will promptly remove the content.
a. Notice of Copyright Infringement. If you believe that content on the Website violates any of your exclusive rights under Act, you must send a written communication to Companys Copyright Agent, which includes, at a minimum, the following:
i.Identification of the copyrighted work(s) claimed to have been infringed.
ii.Identification of the material(s) claimed to be infringing or claimed to be the subject of infringing activity, along with reasonably sufficient information to permit Company to locate the material.
iii.Information reasonably sufficient to permit Company to contact you, such as address, telephone number and, if available, an e-mail address.
iv.A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
v.The following statement: “I have a good faith belief that the use of materials described above is not authorized by the copyright owner, its agent, or the law.”
vi.The following statement: “The information in this notification is accurate and that I swear, under penalty of perjury, that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.”
Upon receipt of a notice of infringement, Company will respond expeditiously and remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity as required by the Act. Company’s Copyright Agent will take reasonable steps to promptly notify the up-loader of the allegedly infringing content. Company has no other role to play either in prosecuting or defending claims of infringement and cannot be held accountable in any case for damages, regardless of whether a claim of infringement is found to be true or false. Pursuant to the Act, you may be liable for damages, including court costs and attorneys fees, if you misrepresent that a product or activity is infringing your copyrights. If you are not sure whether material on Company’s Website infringes your copyright, Company urges you to first consult an attorney.
b. Counter-Notice. If Company has removed your content from the Website due to suspicion of copyright infringement, you may dispute the alleged infringement by sending a written communication to Companys Copyright Agent, which includes, at a minimum, the following:
i.Identification of the content that has been removed from Website or to which access has been disabled.
ii.Information reasonably sufficient to permit Company to contact you, including at a minimum address, telephone number and an e-mail address.
iii.A physical or electronic signature from you or from a person authorized to act on your behalf.
iv.The following statement: “Under penalty of perjury, I have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.”
v.The following statement: “The information in this notification is accurate, and I swear, in good faith and under penalty of perjury, that the content was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.”
If you have served a counter notification complying with the above requirements, please be aware that Company will promptly provide the person who provided the initial statement alleging infringement with a copy of the counter notification and will inform such person that Company will replace the removed material or cease disabling access to it within ten (10) to fourteen (14) business days. Company will then replace the removed material and cease disabling access to within ten (10) to fourteen (14) business days following receipt of the counter notice unless the copyright owner delivers to Company’s Copyright Agent notice that it has filed an action seeking a court order. If Company receives a notification from a copyright holder who has procured an enforceable injunction prohibiting Company from providing access to allegedly infringing material, Company will follow the requirements of the injunction.
c. Other Types of Infringement. The policies and processes outlined above are applicable to copyright only. If you discover any content that you believe to be in infringement of any other intellectual property rights or in violation of Companys Terms of Service, please contact Company immediately.
6. Limitation of Liability; Disclaimer of Warranties; Indemnification.
a. The Website may include content created and uploaded by third parties. Because Company has no control over such content, you acknowledge and agree that Company is not responsible for and does not assume responsibility or accept liability for any files, content, advertising, products or other materials on or made available by third parties through its Website, including without limitation User Content. You further acknowledge and agree that Company shall not be responsible for or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such music files, content, goods or services available on or through any such site or resource. YOU EXPRESSLY UNDERSTAND AND AGREE THAT UNDER NO CIRCUMSTANCES SHALL COMPANY ITS SUBSIDIARIES, AFFILIATES, OFFICERS, AGENTS, EMPLOYEES, PARTNERS AND LICENSORS BE LIABLE TO USER OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES (EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) FOR ANY MATTER ARISING FROM OR RELATING TO THIS AGREEMENT, THE WEBSITE, SERVICE OR THE INTERNET GENERALLY, INCLUDING, WITHOUT LIMITATION, USER’S USE OR INABILITY TO USE THE WEBSITE OR SERVICE, ANY CHANGES TO OR INACCESSIBILITY OF THE WEBSITE OR SERVICE, DELAY, FAILURE, UNAUTHORIZED ACCESS TO OR ALTERATION OF ANY TRANSMISSION OR DATA, ANY MATERIAL OR DATA SENT OR RECEIVED OR NOT SENT OR RECEIVED, THE COSTS OF PROCUREMENT OF SUBSTITUTE COSTS GOODS AND SERVICES PURCHASED OR OBTAINED, ANY MESSAGES RECEIVED OR TRANSACTION OR AGREEMENT ENTERED INTO THROUGH THE SERVICE, OR ANY DATA OR MATERIAL FROM A THIRD PERSON ACCESSED ON OR THROUGH THE WEBSITE OR SERVICE, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE. IN NO EVENT SHALL COMPANY’S TOTAL LIABILITY FOR DIRECT DAMAGES EXCEED THE TOTAL FEES PAID BY USER TO COMPANY HEREUNDER. SOME STATES PROHIBIT THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, THUS THIS LIMITATION OF LIABILITY MAY NOT APPLY TO USER. IF USER IS DISSATISFIED WITH THE SERVICE, USER’S SOLE AND EXCLUSIVE REMEDY SHALL BE FOR USER TO DISCONTINUE USE OF THE WEBSITE AND SERVICE AND TO TERMINATE THIS AGREEMENT IN ACCORDANCE WITH ITS TERMS.
b.You expressly understand and agree that:
i. Your use of the Website or Service is at your discretion and risk. Company disclaims any responsibility for the deletion, failure to store, or failed or untimely delivery of any information or material. Company disclaims any responsibility for any harm resulting from accessing information or material on the Internet using the Website. The Website and Service are provided on an “as is” and “as available” basis. Company and its subsidiaries, affiliates, officers, employees, agents, partners and licensors expressly disclaim all warranties of any kind, whether express or implied, including, but not limited to the implied warranties of merchantability, fitness for a particular purpose and non-infringement. Company makes no representations, warranties or guarantees of any kind regarding the efficacy or results of Users usage of the Services or the content, data, information or other materials produced in connection therewith.
ii. Company and its subsidiaries, affiliates, officers, employees, agents, partners and licensors make no warranty that: the Website or Service will meet your requirements; the Website or Service will be uninterrupted, timely, secure or error-free; the result that may be obtained from the use of the Website will be accurate or reliable; the quality of any products, services, information or other material purchased or obtained by you through the Website or Service will meet your expectations; or that any errors in the software will be corrected.
iii. Any material downloaded or otherwise obtained through the use of the Website or Service is accessed at your own discretion and risk, and you will be solely responsible for any damage to your computer system or loss of data that results from m the download of any such material
iv. COMPANY HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE WEBSITE AND SERVICE INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM COMPANY OR THROUGH OR FROM THE WEBSITE OR SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.
c. User hereby agrees to defend, indemnify and hold Company and its subsidiaries, affiliates, directors, officers, shareholders, managers, members, agents, employees, partners, and licensors harmless against any action, cause, claims, losses, damages, debt, demand, liability and expenses (including, without limitation, court costs and reasonable attorneysfees) made by any third party due to, in connection with, arising out of or otherwise relating to: (i) this Agreement; (ii) Users use of the Website or Service, including any data or work transmitted or received by User; and (iii) any unacceptable use of the Service, including, without limitation, any statement, data or content made, transmitted or republished by User which is prohibited as unacceptable herein.
a. Entire Agreement. This Agreement (Terms of Service) constitute the entire agreement between you and Company with respect to the specific subject matter hereof and supersedes all prior agreements or understandings of any kind with respect to the specific subject matter hereof.
b. Severability. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law. If any provision of this Agreement becomes or is declared by a court of competent jurisdiction to be illegal, unenforceable or void, this Agreement shall continue in full force and effect without such provision, and this Agreement shall be construed to the fullest extent possible as to give effect to the intentions of the provisions found to be unenforceable or invalid. The Parties agree that such court may reform such provisions so that it is reasonable under the circumstances and that such provision, as reformed, shall be enforceable, except that the material intent of the Parties in entering into this Agreement shall not be defeated or rendered impossible by the removal of such provision from this Agreement.
c. Amendments. Company reserves the right, in Company’s sole and absolute discretion, to make modifications to these Terms of Service from time to time. Any such modifications will be made by updating and posting a new version on the Website or otherwise through the Service and notifying you of the revised Terms of Service. In the event that Company makes changes to these Terms of Service, Company will provide you with the opportunity to review and approve the terms prior to your continued use of the Website and Service. Should any modification be unacceptable to you, your sole recourse is to discontinue use of the Website and Service.
d. Binding Effect. The provisions of these Terms of Service are solely for the benefit of the parties hereto and not for the benefit of any third parties, except that Company shall have the right to assign these Terms of Service and/or any of the rights herein and these Terms of Service shall be binding upon and inure to the benefit of the Company’s assignee(s) hereto and their respective successors, assigns and legal representatives.
e. Waiver. No failure by either party to pursue any remedy resulting from a breach of any provision of these Terms of Service by the other party shall be construed as a waiver of that breach or as a waiver of any subsequent or other breach unless such waiver is in writing and signed by an authorized representative of the non-breaching party.
f. Term and Termination. This Agreement is effective upon User’s acceptance as set forth herein and shall continue in full force until terminated. User may terminate this Agreement for any reason upon thirty (30) days prior to notice to Company. Company reserves the right, in its sole discretion and without notice, at any time and for any reason, to: (a) remove or disable access to all or any portion of the Website or Service; (b) suspend User’s access to or use of all or any portion of the Website or Service; and (c) terminate this Agreement.
g. Notices. Any notice, demand or other communication which may or is required to be given under these Terms of Service must be in writing and must be:
i. personally delivered;
ii. transmitted by United States postage prepaid mail, registered or certified mail, return receipt requested;
iii. transmitted by reputable overnight courier service, such as Federal Express or UPS;
iv. transmitted by legible facsimile, with confirmation of receipt; or
v. transmitted by electronic mail, with confirmation of receipt.
h. Construction and Interpretation. The titles of the sections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement. The schedules and exhibits hereto are expressly incorporated herein by reference, and shall be deemed, and shall construed and interpreted, as part hereof. Unless the context of this Agreement clearly requires otherwise:
i. references to the plural include the singular, the singular the plural, and the part the whole;
ii. references to one gender include all genders and the neuter form;
iii. “or” has the inclusive meaning frequently identified with the phrase “and/or”;
iv. “including” has the inclusive meaning frequently identified with the phrase “including but not limited to” or “including without limitation”;
v.references to “hereunder,” “herein” or “hereof” relate to this Agreement as a whole;
vi. any reference in this Agreement to any statute, rule, regulation or agreement, including this Agreement, shall be deemed to include such statute, rule, regulation or agreement as the same may have been, or may from time to time be, amended, restated, revised, modified, supplemented, reenacted or succeeded.
i. Choice of Law; Venue; Jury Trial Waiver; Costs of Enforcement. The Parties expressly agree that all the terms and provisions hereof shall be construed under federal copyright, trademark and other intellectual property laws, rules and regulations (as applicable), together with the internal laws of New York without regard such state’s conflict of laws or choice of law rules and principles. Each of the Parties hereby irrevocably consents that any action or proceeding relating to this Agreement shall be brought, at the option of the party instituting the action or proceeding, in any state or federal court of general jurisdiction in New York. Each of the parties waives any objection that it may have to the conduct of any action or proceeding in any such court based on improper venue or forum non conveniens, waives personal service of any and all process upon it, and consents that all service of process may be made by mail or courier service directed to it at the address set forth herein and that service so made shall be deemed to be completed upon the earlier of actual receipt or five (5) days after the same shall have been posted. Nothing contained in this Section 7(i) shall affect the right of any Party hereto to serve legal process in any other manner permitted by law. In any action or proceeding commenced in connection with this Agreement each Party hereby expressly and IRREVOCABLY WAIVES THE RIGHT TO TRIAL BY JURY. The prevailing party in any action to enforce this Agreement shall be entitled to recover costs and expenses including, without limitation, attorneys’ fees.