This Software Terms of Service Agreement ("Agreement") is entered into between Float On, LLC, an Oregon limited liability company, doing business as HelmBot (referred to as "HelmBot", "we", "our", or "us"), and You, the subscriber (referred to as "you" or "your"), each, a "Party", and collectively, the "Parties". Please review these license terms thoroughly as this Agreement is a legal agreement between you and HelmBot.
BY ACCEPTING ELECTRONICALLY (FOR EXAMPLE CLICKING TO ACCEPT IT) OR BY USING OR ACCESING THE HELMBOT SERVICE, YOU ARE AGREEING TO: (a) THE TERMS OF THIS AGREEMENT; (b) THE HELMBOT PRIVACY POLICY; AND (c) THE SERVICE LEVEL GUARANTEE ATTACHED AS EXHIBIT A. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR SOME OTHER LEGAL ENTITY, BY USING THE HELMBOT SERVICE, YOU ARE REPRESENTING THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY OR ENTITIES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND TO THE HELMBOT ONLINE POLICIES. IF YOU DO NOT AGREE TO THIS AGREEMENT, OR DO NOT HAVE SUCH AUTHORITY TO BIND YOUR COMPANY TO THESE TERMS, THEN YOU MAY NOT USE THE HELMBOT SERVICE.
This Agreement was last updated on December 18, 2020, and is effective between HelmBot and you as of the date of your acceptance of this Agreement. We reserve the right to modify this Agreement at any time, and without prior notice by posting amended terms on this website. Your continued use of the Service indicates your acceptance of the amended Agreement. You may be subject to additional terms that apply in some cases. For example, if you make a purchase you may be asked to agree to payment terms, or if you choose to use a feature offered by a third party, you may be asked to agree to terms required by the third party. You will generally be notified and asked to agree to these additional terms at the time of the transaction.
1. "Account" means your account with the Service.
2. "Affiliate" means with respect to a Party: (a) any Person (excepting any natural person) which directly or indirectly controls, or is controlled by, or is under common control with, such Party; or (b) an officer, director or ten percent (10%) or more shareholder of such Party. For purposes of the preceding sentence, "control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by contract or otherwise, or the direct or indirect ownership or possession of, in the aggregate, more than fifty percent (50%) of the voting power of all outstanding voting shares of a Person
3. "Intellectual Property" means all rights, titles, and interests in and to any and all intellectual property of any kind, including ideas, suggestions, discoveries, improvements, inventions, patents, data, trade secrets, know-how, drawings, designs, specifications, trademarks together with the goodwill associated with such trademarks and the goodwill of the business associated with such trademarks, original works of authorship (published or not), copyrightable materials, or materials created, developed, made, authored, conceived or reduced to practice, in each case worldwide and together with as applicable all renewals, extensions, continuations, divisionals, reissues, re-examinations, and substitutions. "Intellectual Property" is to be interpreted broadly.
4. "Malicious Code" means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
5. "Material" means all content related to the Service on the HelmBot Website including the HelmBot Website, HelmBot Software, all Your Content, and any other content whether submitted by HelmBot, you, or any other user.
6. "Person" means any natural person, corporation, limited liability entity, business entity, firm, joint venture, partnership, trust, unincorporated organization, association, or any governmental authority.
7. "Service" means the HelmBot services that are made available by us online via the subscriber login link at your designated subdomain and/or other web pages designated by us for you and your customers.
8. "Your Content" means all electronic data or information submitted by you to the Service, including without limitation, all of your Customers' information.
1. Service. We will provide the Service to you according to this Agreement. We reserve the right to replace, modify, and/or upgrade the Service at our sole discretion, but we will use commercially reasonable efforts to notify you of any pending user interface changes resulting from such replacements or modifications. Any such modifications will be treated as part of the Service for the purpose of this Agreement. You acknowledge and understand that the Service is licensed and not sold. So long as you comply with the terms of this Agreement and related agreements, you are granted a personal, limited, non-exclusive, nontransferable, revocable license to use the Service for the term of your subscription. Please note that the Service is offered from the United States, where its data servers reside.
2. Payment. You will pay to HelmBot such monthly Service fees as indicated in your Account by your scheduled monthly payment date. If your payment is overdue, or if your registration information is not accurate, current, and complete, HelmBot may refuse access to the Service until you cure such overdue payment or registration inaccuracies.
3. Your Responsibilities. By using the Service, you agree to:
a. Provide true, accurate, current, and complete information about yourself as prompted by the registration form;
b. Create, manage, and keep any user names and passwords related to your use of the Service (including third-party user names and passwords) secure;
c. Keep back-up copies of all of Your Content;
d. Prevent unauthorized access to your Account;
e. Allow us to store and process Your Content for legitimate business purposes;
f. Accept any updates to the Service; and
g. Not violate any applicable laws, contractual restrictions or other third party rights, in the jurisdiction you reside.
1. Materials. You understand and agree that we not control the content of the data stored within user Accounts and we have no obligation to monitor Your Content for any purpose. You are responsible for your content and are solely responsible for: (a) any and all materials uploaded, posted, or stored through your use of the Service, including without limitation, any content related to the operation and maintenance of Your Content; (b) for any lost or unrecoverable content; (c) for providing all required and appropriate warnings, information, and disclosures; (d) any unauthorized use of Your Account; and (e) managing and responding to all visitors and customers who contact you or HelmBot through the Service, including without limitation, email unsubscribe requests and contact preferences. HelmBot is not responsible for any of Your Content or any other data that you provide through your use of the Service.
2. Customer Payment Information. We expressly disclaim any and all liability for your handling and storage of customer payment information. We recommend that when handling such information in connection with the use of the Service, that you follow the requirements of the Payment Card Industry Date Security Standard. You are solely responsible for collection of all applicable taxes on customer transactions conducted via the platform such as, without limitation, sales taxes, value added taxes, and transaction taxes.
3. Restrictions. You agree not to use, nor permit any third-party to use, the Service to upload, post, distribute, link to, publish, reproduce, engage in or transmit any of the following:
a. Illegal, fraudulent, defamatory, obscene, pornographic, profane, threatening, abusive, hateful, harassing, offensive, inappropriate or objectionable information or communication of any kind, including without limitation, conduct that would encourage "flaming" others, or conduct which may create criminal or civil liability under any local, state, federal, or foreign law;
b. Content that would impersonate someone else or falsely represent your identity or qualifications, or that which constitutes a breach of any individual's privacy;
c. Investment opportunities, solicitations, chain letters, pyramid schemes, other unsolicited commercial communication or engage in spamming or flooding;
d. Malicious Code; and
e. Any information, software, or content which is not legally yours without express permission from the owner of such content.
1. Reservation of Rights in HelmBot Service. Subject to the limited licenses expressly granted under this Agreement, we reserve all rights, title, and interest in and to the Service, including without limitation all software, logos, trademarks, and other related Intellectual Property rights. For clarity, no Intellectual Property rights are granted to you under this Agreement other than the limited license expressly granted.
2. License Grant. You recognize and agree that: (a) all Materials, excluding Your Content, are the property of HelmBot and its licensors, and are protected by copyright, trademark, trade secrets, and other Intellectual Property laws; and (b) you do not acquire any right, title, or interest in, or to the Materials except for a personal, limited, nonexclusive, nontransferable, revocable license to use the Service only for so long as, and only for the purposes set forth in this Agreement.
3. Restrictions. You understand and agree that the Service is licensed, not sold, and you agree not to: (a) permit any third-party to access the Service except as explicitly permitted under this Agreement, (b) create derivative works based on the Service except as explicitly authorized under this Agreement, (c) copy, frame, or mirror any part or content of the Service, other than copying or framing on your own intranets or otherwise for your own internal business purposes, (d) reverse engineer the Service, or (e) access the Service in order to: (i) build a competitive product or service, or (ii) copy any features, functions or graphics of the Service.
4. Your Applications and Code. If you, a third-party acting on your behalf, or a User creates applications or program code using the Service, you authorize us to host, copy, transmit, display and adapt such applications and program code, as necessary for us to provide the Service in accordance with this Agreement.
5. Your Content. You authorize us to host, copy, transmit, display, modify and adapt Your Content as necessary for us to provide the Service in accordance with this Agreement. Subject to the rights granted by you under this Agreement, we acquire no other rights from you or your licensors under this Agreement in or to Your Content.
6. Suggestions. You grant HelmBot have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback provided by you, relating to the operation of the Service.
7. HelmBot May Monitor Your Content. HelmBot may, but has no obligation to, monitor content on or via the Service. HelmBot may disclose any information necessary to satisfy any of our legal obligations, to protect HelmBot or its customers, or to operate the Service properly. HelmBot may, however, in appropriate circumstances and in its sole discretion, remove, suspend, terminate access, or take other appropriate action against subscribers who infringe the copyright rights of others. Therefore, if you reasonably believe that any materials on our website contain unauthorized reproductions of your copyrighted work or trademarks, and you want us to take any action, then you must provide the following information to us (as required under the Digital Millennium Copyright Act (17 U.S.C. sec. 512):
a) Physical or electronic signature of a Person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
b) Identification of the copyrighted work claimed to have been infringed;
c) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
d) Information reasonably sufficient to permit us to contact you, such as an address, telephone number and e-mail address;
e) A statement that you have a good faith belief that the use of the material in the manner complained of is not authorized by the owner, its agent, or the law; and
f) A statement that the information in the notice is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
g) Please e-mail this information to legal@helmbot.com
1. Term of Agreement. The term of the Service commences on your enrollment date and, unless otherwise specified, will continue on a month-to-month basis until: (a) you give notice of non-renewal no less than 14 days prior to the end of the relevant subscription term; or (b) the subscription is otherwise terminated. HelmBot will not provide any refund for non-use of the Service within the applicable subscription period, and you must pay the full subscription fee for any partial-month usage of the Service. HelmBot reserves the right to modify its per-unit pricing at any time, with such modification of price being effective upon the next billing cycle.
2. Termination. You agree that HelmBot may at any time, in its sole discretion and without notice, terminate this Agreement and your use of the Service for any reason, including without limitation: (a) for any breach of this Agreement; (b) if you become the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors; or (c) if HelmBot deems itself insecure. Upon termination, you must immediately stop using the Service and must pay any outstanding payments as they come due. In no event shall termination relieve you of your obligation to pay HelmBot for any period prior to the termination.
3. Surviving Provisions. Notwithstanding any terms under this Agreement, all provisions of this Agreement that, by their terms, are intended to survive, or would reasonably be expected to survive, the termination of this Agreement shall do so, including without limitation: Section II (HelmBot Service & Payment), IV (Proprietary Information/Intellectual Property), VI (Disclaimer of Warranties), VII (Limitation of Liability and Indemnity), and IX (General Provisions).
YOUR USE OF THE SERVICE AND CONTENT IS ENTIRELY AT YOUR OWN RISK. EXCEPT AS OTHERWISE DESCRIBED IN THIS AGREEMENT, THE SERVICE IS PROVIDED "AS IS" AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, HELMBOT, ITS AFFILIATES, AND ANY THIRD-PARTY PROVIDERS, LICENSORS, DISTRIBUTORS, OR SUPPLIERS (COLLECTIVELY, "SUPPLIERS") DISCLAIM ANY AND ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SERVICE, ANY ANCILLARY SERVICES, OR ANY PROVIDER SERVICE OF THIRD-PARTY SERVICES, IN WHOLE OR IN PART, INCLUDING ANY WARRANTY THAT THE SERVICE IS FIT FOR A PARTICULAR PURPOSE, WARRANTIES OF TITLE, MERCHANTABILITY, DATA LOSS, NON-INTERFERENCE WITH OR NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS, OR THE ACCURACY, RELIABILITY, QUALITY OR CONTENT IN OR LINKED TO THE SERVICE. HELMBOT, ITS AFFILIATES AND SUPPLIERS, AND THIRD-PARTY PROVIDERS DO NOT WARRANT THE COMPREHENSIVENESS, COMPLETENESS, CORRECTNESS, LEGALITY, OR ACCURACY OF THE SERVICE, ANCILLARY SERVICES, OR ANY PROVIDER SERVICE OF THIRD-PARTY SERVICES, IN WHOLE OR IN PART, OR THAT THE SERVICE IS SECURE, FREE FROM BUGS, VIRUSES, MALICIOUS CODE, INTERRUPTION, ERRORS, THEFT, OR DESTRUCTION. IN THE EVENT THAT THE EXCLUSIONS FOR IMPLIED WARRANTIES DO NOT APPLY TO YOU, ANY APPLICABLE IMPLIED WARRANTIES ARE LIMITED TO 60 DAYS FROM THE EFFECTIVE DATE OF THIS AGREEMENT.
1. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE ENTIRE LIABILITY OF HELMBOT, ITS AFFILIATES, AND SUPPLIERS FOR ALL CLAIMS RELATING TO THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT YOU PAID FOR THE SERVICE DURING THE 12 MONTHS PRIOR TO SUCH CLAIM. SUBJECT TO APPLICABLE LAW, HELMBOT, ITS AFFILIATES, AND SUPPLIERS ARE NOT LIABLE FOR ANY OF THE FOLLOWING: (A) INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES; (B) DAMAGES RELATING TO FAILURES OF TELECOMMUNICATIONS, THE INTERNET, ELECTRONIC COMMUNICATIONS, CORRUPTION, SECURITY, LOSS OR THEFT OF DATA, VIRUSES, MALICIOUS CODE, SPYWARE, PAYMENT INFORMATION, LOSS OF BUSINESS, REVENUE, PROFITS OR INVESTMENT, OR USE OF SOFTWARE OR HARDWARE THAT DOES NOT MEET HELMBOT'S SYSTEMS REQUIREMENTS. THE ABOVE LIMITATIONS APPLY EVEN IF HELMBOT, ITS AFFILIATES, AND SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS AGREEMENT SETS FORTH THE ENTIRE LIABILITY OF HELMBOT, ITS AFFILIATES AND SUPPLIERS AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO THE SERVICE AND ITS USE.
2. Third-Party Products and Services Limitation of Liability. YOU ACKNOWLEDGE AND AGREE THAT WHEN WE OR OUR SUPPLIERS ACCESS AND RETRIEVE YOUR ACCOUNT INFORMATION AND CONTENT FROM PROVIDERS OF THIRD-PARTY PRODUCTS AND SERVICES, WE ARE ACTING AS YOUR AGENT, AND NOT AS THE AGENT OF THE PROVIDER. NEITHER WE NOR OUR SUPPLIERS REVIEW, AND WE ARE NOT RESPONSIBLE FOR, THE ACCURACY OF ANY DATA YOU RECEIVE FROM THE PROVIDERS. YOU UNDERSTAND AND AGREE THAT WE MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING THE QUALITY OF THE THIRD-PARTY PRODUCTS AND SERVICES, OR ANY DATA CONTAINED OR PROCESSED THEREIN. YOU AGREE THAT ANY AND ALL LIABILITY ARISING OUT OF YOUR USE OF THE THIRD-PARTY PRODUCTS AND SERVICES (IF ANY) IS SOLELY BETWEEN YOU AND SUCH PROVIDERS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL WE OR OUR SUPPLIERS BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY FEES, DAMAGES, CLAIMS, LOSSES, COSTS, EXPENSES, OR LIABILITIES ARISING OUT OF OR IN ANY WAY RELATED TO THE THIRD-PARTY PRODUCTS AND SERVICES. IN NO CASE WILL YOU SEEK TO HOLD US OR OUR SUPPLIERS OR ANY OF OUR LICENSORS RESPONSIBLE IN ANY MANNER FOR THE ACTS OR OMISSIONS OF SUCH PROVIDERS, EVEN IF NEGLIGENT OR INTENTIONALLY WRONGFUL.
3. Indemnification. You agree to indemnify, defend, and hold harmless HelmBot, its Affiliates, and Suppliers from any and all claims, liability and expenses, including reasonable attorneys' fees and costs, arising out of: (a) your use of the Service; (b) any breach of this Agreement; or (c) any misuse of Your Content or payment information that you submit to us (collectively referred to as "Claims"). HelmBot reserves the right, in its sole discretion and at its own expense, to assume the exclusive defense and control of any Claims. You agree to reasonably cooperate as requested by HelmBot in the defense of any Claims.
4. Risk of Transmitting Payment Information. YOU AND YOUR CUSTOMERS ACKNOWLEDGE AND AGREE THAT: (a) TRANSMITTING PAYMENT INFORMATION ON THE INTERNET MAY INVOLVE CERTAIN SECURITY RISKS; AND (b) ALTHOUGH HELMBOT WILL USE COMMERCIALLY REASONABLE EFFORTS PROVIDE A SECURE ENVIRONMENT FOR SUCH PAYMENT INFORMATION, WE ARE NOT RESPONSIBLE FOR THE SECURITY OF ANY SUCH PAYMENT INFORMATION UNLESS SUCH BREACH OF SECURITY IS ATTRIBUTABLE TO OUR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. WE SHALL NOT BE RESPONSIBLE FOR ANY DAMAGES OR LOSS CAUSED, OR ALLEGED TO BE CAUSED, AS A RESULT OF THE TRANSMISSION OF PAYMENT INFORMATION, INCLUDING BUT NOT LIMITED TO DAMAGES, FRAUD, EMBEZZLEMENT, THEFT, IDENTITY THEFT, OR INVASION OF PRIVACY.
5. Data Breach Notification. In the case the HelmBot is made aware that a data breach has occurred, and in which sensitive, personally identifying information has been acquired or is reasonably believed to have been acquired by an unauthorized person, and is reasonably likely to cause substantial harm to the individuals to whom the information relates, HelmBot will notify the registered Contact for your HelmBot account via email to inform them of the data breach.
6. Privacy Policy & Terms Notifications to Customers. In the case that HelmBot changes it's privacy policy or visitor terms, it is up to you to deem whether it is necessary to notify your customers of these changes, and to undertake that notification yourself if it is necessary.
You understand and agree that you are the holder of any unredeemed gift certificates and not HelmBot. You understand and agree to ensure that all gift certificates you sell through the Service comply with all laws that govern gift cards, coupons, and gift certificates, including but not limited to the United States Credit CARD Act of 2009, ORS § 646A.276–78, and any laws governing the imposition of expiration dates, service charges or dormancy fees and all fine print related to the gift certificate. You are solely responsible for compliance with any applicable escheat or abandoned or unclaimed property laws.
1. Governing Law & Venue. This Agreement is governed by the laws of the state of Oregon, United States of America, without giving effect to any conflict-of-law principle that would result in the laws of any other jurisdiction governing this Agreement. Any action or proceeding arising out of this Agreement not directed to arbitration shall be litigated in courts located in Multnomah County, Oregon. Each Party consents and submits to the jurisdiction of any local, state, or federal court located in Multnomah County, Oregon for such purposes.
2. Waiver of Jury Trial. Each Party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
3. Export Compliance. The Service, other technology we make available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each Party represents that it is not named on any U.S. government denied-party list. You shall not permit Users to access or use the Service in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan or Syria) or in violation of any U.S. export law or regulation.
4. Relationship of the Parties; Third-Party Beneficiaries. You acknowledge that the relationship between you and HelmBot are of independent contractors and HelmBot does not have any fiduciary relationship with you. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties. There are no third-party beneficiaries to this Agreement.
5. No Professional Advice. We do not provide professional advice, including without limitation, any legal, financial, accounting, tax, investment, healthcare, real estate, or other professional services or advice. You agree that any financial statements or documents provided by HelmBot are for your convenience only and are for informational purposes. Regardless of how these items are described, you understand and agree to seek the services of a competent professional when you need this type of help, and you will not rely on these items in any material transaction or decision.
6. Notices. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (a) personal delivery, (b) the second business day after mailing, (c) the second business day after sending by confirmed facsimile, or (d) the first business day after sending by email. Notices to you shall be addressed to the relevant contact designated by you. Notices to us shall be addressed to the HelmBot, 4530 SE Hawthorne Blvd., Portland, OR 97215 or legal@helmbot.com.
7. Waiver; Severability. Any waiver of any term, provision or obligation of this Agreement shall be in writing and signed by the Party providing such waiver. No delay or failure by any Party in exercising any right, power or privilege hereunder shall operate as a waiver, nor shall any single or partial exercise preclude any other or further exercise or the exercise of any other right, power, or privilege. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
8. Attorney Fees. If any arbitration or litigation is instituted to interpret, enforce, or rescind this Agreement, including but not limited to any proceeding brought under the United States Bankruptcy Code, the prevailing Party on a claim shall be entitled to recover with respect to the claim, in addition to any other relief awarded, the prevailing Party's reasonable attorney's fees, expert witness fees, and other fees, costs, and expenses of every kind, including but not limited to the costs and disbursements specified in ORCP 68 A(2), incurred in connection with the arbitration, the litigation, any appeal or petition for review, the collection of any award, or the enforcement of any order, as determined by the arbitrator or court.
9. Assignment. You may not assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of HelmBot, but we may assign or transfer it without your consent to: (a) an affiliate; (b) another company through a sale of assets or ownership shares, or (c) a successor by merger, acquisition, or divestiture.
10. Arbitration. ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO THE SERVICE OR ANY PART OF THIS AGREEMENT WILL BE RESOLVED BY BINDING ARBITRATION, RATHER THAN IN COURT. Notwithstanding anything to the contrary, any party to the arbitration may at any time seek injunctions or other forms of equitable relief from any court of competent jurisdiction. BY ENTERING INTO THIS AGREEMENT AND AGREEING TO ARBITRATION AND THE CLASS ACTION WAIVER BELOW, YOU AGREE THAT YOU ARE WAIVING YOUR RIGHT TO FILE A LAWSUIT, THE RIGHT TO PARTICIPATE IN A CLASS ACTION OR TO LITIGATE ON A CLASS-WIDE BASIS, AND THE RIGHT TO A TRIAL BY JURY. YOU AGREE THAT YOU HAVE EXPRESSLY AND KNOWINGLY WAIVED THESE RIGHTS.
To begin an arbitration proceeding, send written notice requesting arbitration and describing our claim to HelmBot LLC, in care of our registered agent Jake Marty, 4530 SE Hawthorne Blvd., Portland, OR 97215. The notice must (a) describe the nature and basis of the claim or dispute; and (b) set for the specific relief sought. If you and HelmBot do not reach an agreement to resolve the claim within 30 days after the notice is received, either Party may commence an arbitration proceeding. Arbitration will be conducted according to the Commercial Rules of Arbitration of the Arbitration Service of Portland. Arbitration shall be held before a single arbitrator who may also determine any dispute over the scope or applicability of this agreement to arbitrate and judgment on the award may be entered in any court having jurisdiction. The arbitrator will be a retired judge, or an attorney with at least 10 years of active practice in business transactions. If the Parties cannot agree on an arbitrator, each Party shall select one person to act as arbitrator, and the two so selected shall select a third arbitrator within 30 days of the commencement of the arbitration. The arbitration shall be conducted in Portland, Oregon, or such other mutually convenient location as agreed by the Parties. Payment of all filing, administration and arbitrator fees and costs will be governed by the Commercial Rules of Arbitration.
11. Class Action Wavier. The Parties understand and agree that each Party may bring claims against the other Party only in their individual capacity, and not as a Plaintiff or Class Member in any purported Class or representative Proceeding. Further, unless both Parties agree otherwise, the arbitrator may not consolidate more than one person's claim with your claim, and may not otherwise preside over any form of a representative class or proceeding.
12. Entire Agreement; Waiver. This Agreement, along with the HelmBot Billing Page, Privacy Policy, Cookie Policy and Service Level Guarantee, constitutes the entire agreement between the Parties regarding use of the Service and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the Party against whom the modification, amendment or waiver is to be asserted.
This Service Level Guarantee describes the kinds of levels of service that we offer to ensure maximum availability and performance. Capitalized terms not defined in this Exhibit A shall have the meaning ascribed to such terms as in the HelmBot Terms of Service Agreement.
"Business Hours" means Monday through Friday between 9:00 a.m. and 6:00 p.m. Pacific Time, excluding observed US holidays of: New Year's Day, Presidents Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, and Christmas Day.
"Credits" means credits based upon the actual duration of the interruption of the Service.
"Downtime" means the inability to access the Service due to failure of network equipment managed and owned by us or our subcontractors.
"Downtime Exclusions" means: (a) network outages, equipment failures that are outside of our reasonable control, and denial of service attacks; (b) scheduled maintenance up to an accumulated total of 4 hours per month; (c) changes initiated by you, whether or not you made the changes yourself or the changes were made on your behalf; and (d) any and all force majeure events.
"Problem" means any error, defect, or malfunction.
"Problem Detection" means our detection of any Problem, whether by use of monitoring tools, capturing and confirming the existence of a problem, your notification of such problem, or otherwise.
"Service Levels" means the performance standards for the Service as set forth in this Exhibit A.
"Time to Respond" means the period of time from Problem Detection to the time we actively begin to work on the Problem.
"Time to Notify" means the period of time from Problem Detection to notification to you via email or telephone. The Time to Notify is calculated by the number of minutes elapsed between the Problem Detection and our first attempt to notify you by your designated contact.
"Urgent Priority Problem" means any Problem that prevents or materially impedes your access to or use of the Service or any material functionality thereof.
Except as otherwise provided, the Service will be available 24 hours per day, 7 days a week. HelmBot shall use commercially reasonable efforts to maintain a 99.9% availability of the Service, subject to any Downtime. Developer will use commercially reasonable efforts to schedule maintenance of no more than 60 minutes during non-peak hours and otherwise to minimize any Downtime. We will notify you at least 24 hours in advance of any scheduled maintenance where the Service will be unavailable, and we will use commercially reasonable efforts to coordinate all other maintenance during non-peak hours to minimize any Downtime. The maintenance window will generally be between 2:00 a.m. and 5:00 a.m. Pacific Time, unless otherwise notified.
If we fail to meet any Service Level required under this Agreement, we shall promptly, at no additional charge, (a) investigate, assemble, and preserve pertinent information with respect to, and report on, the causes of the Problem giving rise to such failure, including performing a root cause analysis of such Problem; (b) advise you of the status of the remedial efforts being undertaken with respect to such Problem; (c) use commercially reasonable efforts to minimize the impact of and correct such Problem and to begin meeting the Service Level as soon as practicable; and (d) take appropriate preventive measures to avoid the recurrence of such Problem.
We shall use commercially reasonable efforts to notify your designated contacts of Urgent Priority Problems we detect within 30 minutes of Problem Detection during Business Hours and 2 hours of Problem Detection outside of Business Hours. For all other Problems, we shall use commercially reasonable efforts to notify your designated contacts within 4 hours during Business Hours, or otherwise within 4 hours on the next business day.
We shall use commercially reasonable efforts to respond to Problems we detect and to provide a fix or workaround to the Problem within the time frames set forth below. Although we make no guarantees with respect to the maximum time required to fix Problems, we shall take commercially reasonable efforts to ensure that any fixes are undertaken and performed without delay.
| Level | Description | Maximum Response Time | Maximum Time to Fix or Provide a Workaround |
|---|---|---|---|
| 1 | Urgent | 3 hours | 1 business day |
| 2 | Minor | 1 business day | 3 business days |
| 3 | Requests | 3 business days | Varies by request |
We shall record our Service Level performance on a calendar-month basis, and upon your request, we shall provide Service Level performance information by which you can verify the accuracy of the Service Level measurements.
If we fail to meet the uptime levels as set forth below in any given month, you may request – as our sole obligation and your sole and exclusive remedy – for the failure to meet the foregoing guarantee, and subject to the credit exceptions listed below, credit to be placed on your account as Credits (representing a pro rata portion of the fees paid) to be applied against future monthly fees according to the following assurance schedule:
| Uptime Levels | Credit Percentage of the fee due for that calendar month |
|---|---|
| Uptime of 99.0% or higher | No credit. |
| Uptime of 98.0-98.9% | 10% |
| Uptime of 97.0-97.9% | 20% |
| Uptime of 96.0–96.9% | 30% |
| Uptime of 95.0–95.9% | 40% |
| Uptime of less than 95.0% | 50% |
If no future monthly fees are payable by you, such credit shall be issued as a refund of your payment.
Uptime percentages are calculated using actual minutes of Downtime, rounded down to 1-minute boundaries. Any issue lasting less than 1 minute will not be included in the calculation of availability.
(a) If at any time you are in breach of, or default under the any agreement you have with HelmBot or its Affiliates, you will not be entitled to receive any service credits.
(b) Credit will not be issued under this Exhibit A for any covered outage that, as determined by us in our reasonable judgement, results from:
i. Downtime Exclusions
ii. Any negligence or willful misconduct by you.
iii. Any failures that cannot be corrected because you are inaccessible.
Upon notice of termination or non-renewal of the Service, we shall provide you, or a third-party designated by you, all reasonable termination/expiration assistance and support requested.