This following terms and conditions ("Agreement") governs access to and use of the Caravel Platform (the “Platform”) provided by Afternoon, Inc. d/b/a Caravel (“Caravel”) to you. You may be an individual and/or entity that uses the Platform (collectively “Customer”). Customer may be referred to in this Agreement as “you” and “your” as applicable. This Agreement governs Customer’s use of the Platform in the format provided by Caravel. The Platform is licensed, not sold, to Customer.
BY CLICKING THE "AGREE" BUTTON, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND CUSTOMER TO THIS AGREEMENT; AND (C) ACCEPT THIS AGREEMENT ON BEHALF OF THE CUSTOMER. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT DOWNLOAD THE APPLICATION.
- SERVICE AND SUPPORT
- The Platform gives you the ability to communicate with and gain insights from your end user customers, potential customers, and other users of and visitors to (the “Service”) your desktop and mobile site (the “Site”). Subject to the terms of this Agreement, Caravel will use commercially reasonable efforts to provide Customer the Service.
- Caravel will provide technical support to Customer via electronic mail on weekdays during the hours of 9:00 am through 5:00 pm Pacific time, with the exclusion of Federal Holidays. Contact email@example.com for technical support.
- RESTRICTIONS AND RESPONSIBILITIES
- General Restrictions. Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Service or any software, documentation or data related to the Service (“Software”); modify, translate, or create derivative works based on the Service or any Software (except to the extent expressly permitted by Caravel or authorized within the Service); use the Service or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels.
- Compliance with Laws. Customer represents, covenants, and warrants that Customer will use the Service only in compliance with Caravel’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations. Although Caravel has no obligation to monitor Customer’s use of the Service, Caravel may do so and may prohibit any use of the Service it believes may be (or alleged to be) in violation of the foregoing.
- Equipment. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Service on the Site, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, the Site, Customer account, passwords and files, and for all uses of Customer account, the Equipment or the Site with or without Customer’s knowledge or consent.
- CONFIDENTIALITY; PROPRIETARY RIGHTS; CUSTOMER DATA
- Confidentiality. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any Software, performance information relating to the Service, and the terms and conditions of this Agreement will be deemed Proprietary Information of Caravel without any marking or further designation. The Receiving Party agrees: (a) to take reasonable precautions to protect such Proprietary Information, and (b) not to use (except in performance of the Service or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (i) is or becomes generally available to the public; (ii) was in its possession or known by it prior to receipt from the Disclosing Party; (iii) was rightfully disclosed to it without restriction by a third party; (iv) was independently developed without use of any Proprietary Information of the Disclosing Party; or (v) is required to be disclosed by law. The Receiving Party acknowledges that disclosure of Proprietary Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
- Proprietary Rights. Customer shall own all right, title and interest in and to the Customer Data (as defined below) and subject to the terms of this Agreement, Customer hereby grants to Caravel a non-exclusive, worldwide, royalty-free right to use, copy, transmit, modify, create derivative works of and display the Customer Data solely to the extent necessary to provide the Service to Customer. Caravel shall own and retain all right, title and interest in and to (a) the Service and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with any professional services or support, and (c) all intellectual property rights related to any of the foregoing.
- Customer Data. “Customer Data” means any data of any type that is submitted to the Service by or on behalf of Customer, including without limitation: (a) data submitted, uploaded or imported to the Service by Customer (including from Third Party Platforms) and (b) data provided by or about Customer’s end user customers, potential customers, and other users of and visitors to the Site (including chat and message logs) that are collected from the Site using the Service. Customer is solely responsible for the accuracy, content and legality of all Customer Data. Customer represents and warrants to Caravel that Customer has all necessary rights, consents and permissions to collect, share and use all Customer Data as contemplated in this Agreement.
- Data Analysis. Notwithstanding anything to the contrary, Caravel shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Service and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Caravel will be free (during and after the term hereof) to (a) use such information and data to improve and enhance the Service and for other development, diagnostic and corrective purposes in connection with the Service and other Caravel offerings, and (b) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
- Storage of Customer Data. Caravel does not provide an archiving service. Caravel agrees that it will not intentionally delete any Customer Data from the Service prior to termination of Customer’s applicable Term (as defined below). Caravel expressly disclaims all other obligations with respect to storage.
- Sensitive Personal Information. Customer specifically agrees not to use the Service to collect, store, process or transmit any Sensitive Personal Information. Customer acknowledges that Caravel is not a Business Associate or subcontractor (as those terms are defined in HIPAA) or a payment card processor and that the Service are neither HIPAA nor PCI DSS compliant. Caravel will have no liability under this Agreement for Sensitive Personal Information, notwithstanding anything to the contrary herein. “Sensitive Personal Information” means any of the following: (a) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standards ("PCI DSS"); (b) patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act ("HIPAA"); or (c) any other personal data of an EU citizen deemed to be in a "special category" (as identified in applicable EU General Data Protection Regulation or any successor directive or regulation).
Caravel agrees to use commercially reasonable technical and organizational measures designed to prevent unauthorized access, use, alteration or disclosure of the Service or Customer Data. However, Caravel will have no responsibility for errors in transmission, unauthorized third-party access or other causes beyond Caravel’s control.
- THIRD-PARTY PLATFORMS
The Service may support integrations with certain software, software-as-a-service, data sources or other products or services not provided by Caravel (collectively, “Third-Party Platforms”). In order for the Service to communicate with such Third-Party Platforms, Customer may be required to input credentials in order for the Service to access and receive relevant information from such Third-Party Platforms. By enabling use of the Service with any Third-Party Platform, Customer authorizes Caravel to access Customer's accounts with such Third-Party Platform for the purposes described in this Agreement. Customer is solely responsible for complying with any relevant terms and conditions of the Third-Party Platforms and maintaining appropriate accounts in good standing with the providers of the Third-Party Platforms. Customer acknowledges and agrees that Caravel has no responsibility or liability for any Third-Party Platform or any Customer Data exported to a Third-Party Platform. Caravel does not guarantee that the Service will maintain integrations with any Third-Party Platform and Caravel may disable integrations of the Service with any Third-Party Platform at any time with or without notice to Customer. For clarity, this Agreement governs Customer's use of and access to the Service, even if accessed through an integration with a Third-Party Platform.
- PAYMENT OF FEES
- Fees; Generally. Customer will pay Caravel the then applicable fees for its use of the Service, as calculated on a monthly basis (the “Fees”). If Customer believes that Caravel has billed Customer incorrectly, Customer must contact Caravel no later than thirty (30) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Caravel’s customer support department.
- Credit Card. If Customer chooses to purchase the Service via credit card, debit card or other payment card (“Credit Card”) the following terms apply: by providing Credit Card information and agreeing to purchase the Service, Customer hereby authorizes Caravel (or its designee) to automatically charge Customer's Credit Card on the same date of each calendar month (or the closest prior date, if there are fewer days in a particular month) during the Term for all Fees accrued as of that date (if any). Customer acknowledges and agrees that the amount billed and charged each month may vary depending on Customer's use of the Service and may include subscription fees for the remainder of Customer's applicable billing period and overage fees for the prior month. Customer is responsible for all bank and other fees charged by the Credit Card issuer.
- Invoices; Late Fees; Taxes. Caravel may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Caravel fifteen (15) days after the date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Service other than U.S. taxes based on Caravel’s net income.
- TERM AND TERMINATION
- Term. Subject to earlier termination as provided below, this Agreement is for a period of twelve (12) months (the “Initial Service Term”), and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
- Termination. In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), with or without cause. Customer will pay in full for the Service up to and including the last day on which the Service are provided, as based on Customer usage. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
- LIMITED WARRANTY AND DISCLAIMER
Caravel shall use reasonable efforts consistent with prevailing industry standards to maintain the Service in a manner which minimizes errors and interruptions in the Service and shall perform any professional services in a professional and workmanlike manner. Service may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Caravel or by third-party providers, or because of other causes beyond Caravel’s reasonable control, but Caravel shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, CARAVEL DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICE. Caravel’s sole liability (and Customer's sole and exclusive remedy) for any breach of this warranty will be, at no charge to Customer, for Caravel to use commercially reasonable efforts to correct the reported non-conformity, or if Caravel determines such remedy to be impracticable, either party may terminate the applicable Term. The limited warranty set forth in this Section will not apply: (a) unless Customer makes a claim within thirty (30) days of the date on which Customer first noticed the non-conformity, (b) if the error was caused by misuse, unauthorized modifications or third-party hardware, software or services (including Third-Party Platforms). EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICE IS PROVIDED “AS IS” AND CARAVEL DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
- LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT WITH RESPECT TO EACH PARTY’S CONFIDENTIALITY OBLIGATIONS, NEITHER PARTY NOR THEIR RESPECTIVE SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS AND THIRD-PARTY PLATFORM PROVIDERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICE OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND EITHER PARTY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO CARAVEL FOR THE SERVICE UNDER THIS AGREEMENT DURING THE INITIAL SERVICE TERM.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Neither party may assign this Agreement without the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party's assets or voting securities. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers, amendments and modifications must be in a writing signed by both parties, except as otherwise provided herein. No provision of any purchase order or other business form employed by Customer will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Caravel in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of Delaware without regard to its conflict of laws provisions. This Agreement may be executed in counterparts, each of which will be deemed an original and all of which together will be considered one and the same agreement.