February 8, 2022
1. INTRODUCTION AND ACCEPTANCE OF TERMS
The CountingWorks Service
CountingWorks, Inc. / (“CountingWorks”) is providing a software as a service offering comprising:
(a) a platform with a collection of applications and tools (the availability of which is based on the plan and any add-ons that you select, for more information go to https://www.countingworkspro.com/pricing/ to allow you to automate your sales and marketing processes; and
(b) other supporting products and services (together, the “Service”).
The following terms and conditions (“Terms”) are between you and CountingWorks and constitute a binding legal agreement that governs your use of the Service (“Agreement”). By using the Service or this website you are agreeing to accept and comply with the Terms, which CountingWorks may update at any time without notice. You should visit this page periodically to review the then-current Terms. You understand and agree that your continued use of the Service after the Terms have changed constitutes your acceptance of the Terms as revised.
Notwithstanding these Terms, where your use of the Service includes the processing of personal data (as described in the EU Data Protection Directive 95/46/EC—“GDPR”) within the European Economic Area (EEA), the terms of the data protection addendum (“DPA”) shall apply to such processing, and shall be incorporated into these Terms, provided and from the date that you send to email@example.com a copy of the DPA signed by you in accordance with the instructions therein. In such event, if any provision of the DPA is in conflict with these Terms, the provision in the DPA shall be controlling with respect to that particular subject matter.
To use and/or register for the Service you must be (i) of legal age to form a binding contract with CountingWorks, and (ii) must not be a person barred from receiving the Service under the laws of the United States or other applicable jurisdiction, including the country in which you reside or from where you use the Service. By accepting these Terms you represent that you understand and agree to the foregoing.
2. THE SERVICE
Access to the Service
CountingWorks will provide you access to the Service:
(a) if you register for a free trial use of the Service, on a trial basis at no cost until the earlier of (a) the end of free trial from when you register to use the Service, or (b) if you subscribe to the service, the start date of that subscription (“Trial Period”); or
(b) if you subscribe to the Service, during the Original Contract Term and any Renewal Contract Term(s), as defined in Section 3, below (“Contract Term”).
During the Trial Period CountingWorks reserves the right to limit, suspend or stop the Service (or any part thereof), either temporarily or permanently, at any time or from time to time, with or without prior notice to you. You acknowledge and agree that CountingWorks shall not be liable to you or any third party for any modification or cessation of the Service and that CountingWorks has no obligation (express or implied) to provide, or continue to provide, the Service, or any part thereof, now or in the future. If you registered for a free trial use of the Service you must subscribe to the Service before the end of the Trial Period in order to retain your data on the Service. All of your data will be permanently deleted at the end of the Trial Period.
Limitations on Use
CountingWorks may impose certain limitations on the use of the Service, including, without limitation, allocating certain levels of bandwidth and storage capacity (including number of contacts that may be stored) to your CountingWorks Service and restricting the number of email and SMS communications you may send using the Service, as set out in CountingWorks’s pricing and subscription terms, available https://www.countingworkspro.com/pricing/. You agree to use the Service only for purposes as permitted by these Terms and any applicable law, regulation, or generally accepted practice in the applicable jurisdiction.
Changing the Service
From time to time CountingWorks modifies the Service, including by adding or removing features and functions to enhance your experience. Nothing in this Agreement prohibits CountingWorks from making such changes, provided that no such change to the Service materially reduces the functionality of the Service provided to Customer during the Contract Term.
You can subscribe to additional elements of the Service, as agreed to between the parties. Such additional elements of the Service will be added on to the Service provided and fees due under this Agreement, commencing on the date the parties agree to their addition.
No Resale of Service
You agree that you will not reproduce, copy, duplicate, sell, resell, rent or trade the Service (or any part thereof) for any purpose.
As part of using the Service, CountingWorks will provide you with the opportunity to submit comments, information, feedback and ideas regarding our company, products or services, and any such comments etc that you communicate to us (“Feedback”) will be deemed, at the time of communication to CountingWorks, the property of CountingWorks, and CountingWorks shall be entitled to full rights of ownership, including without limitation, unrestricted right to use or disclose such Feedback in any form, medium or technology now known or later developed, and for any purpose, commercial or otherwise, without compensation to you.
3. CONTRACT TERM AND RENEWAL
If you subscribe to the Service, your “Original Contract Term” will begin on the date that you pay to subscribe and expire at the end of the period selected in the subscription process and specified in the quote form provided to you by CountingWorks (“Quote Form”), unless terminated earlier in accordance with this Agreement.
Unless either party provides notice that it does not intend to renew this Agreement at least 30 days before the end of the Contract Term, this Agreement will be automatically renewed for a “Renewable Contract Term”:
(a) on the terms and conditions of this Agreement then in effect;
(b) subject to the pricing structure and usage levels specified for renewal terms in this Agreement or, if not specified, as then posted at https://www.countingworkspro.com/pricing/; and
(c) for a term equal to the lesser of the Original Contract Term or one year. Except as provided in this Agreement, a Contract Term cannot be canceled prior to its expiration. Fees for each Contract Term are non-cancelable, and fees paid in advance will not be refunded.
General price increases will not affect you during the Original Contract Term. CountingWorks will charge or invoice you under the new price structure at the beginning of each Renewable Contract Term.
Payment against invoice
CountingWorks will invoice you at the beginning of the Initial Contract Term and at the beginning of each subsequent Renewable Contract Term. All quoted fees in the Quote Form are payable in advance and are exclusive of taxes, which CountingWorks will charge or invoice as applicable, and you agree to pay any such taxes applicable to your use of the Service. All amounts invoiced are due and payable within 30 days of the date of the invoice. Payment instructions shall be as set out on CountingWorks’s invoice.
You agree that CountingWorks may identify your company name and/or logo as an CountingWorks customer on client lists, marketing materials and/or press releases. If you wish to be excluded from this program, do so by emailing: firstname.lastname@example.org.
6. CONTENT AND YOUR CONDUCT
“Content” means any information that may be generated or encountered through use of the Service, such as data files, written text, software, music, graphics, photographs, images, sounds, videos, messages and any other like materials. You understand that all Content whether publicly posted or privately transmitted on the Service is the sole responsibility of the person from whom such Content originated. This means that you, and not CountingWorks, are solely responsible for any Content you upload, download, post, email, transmit, store or otherwise make available through your use of the Service. You understand that by using the Service you may encounter Content that you may find offensive, indecent, or objectionable. CountingWorks does not control the Content posted via the Service, nor does it guarantee the accuracy, integrity or quality of such Content. You understand and agree that your use of the Service and any Content is solely at your own legal risk.
You agree that you will NOT use the Service to:
Except as expressly permitted herein, you agree that no materials published, used or offered by CountingWorks as part of the Service or on this website, in whole or in part, may be copied, reproduced, modified, republished, uploaded, posted, transmitted, or distributed in any form or by any means without prior written permission from CountingWorks. The use of any such materials on any other website or networked computer environment or for any other purpose is strictly prohibited and such unauthorized use may violate copyright, trademark and other similar laws.
Removal of Content
Backup Your Content
You are responsible for backing up, to your own computer or other device, any Content that you store or access via the Service. CountingWorks does not guarantee or warrant that any Content you may store or access through the Service will not be subject to inadvertent damage, corruption or loss.
Access to Your Account and Content
You acknowledge and agree that CountingWorks may access, use, preserve and/or disclose your account information and Content if legally required to do so or if we have a good faith belief that such access, use, disclosure, or preservation is reasonably necessary to: (a) comply with legal process or request; (b) enforce these Terms, including investigation of any potential violation thereof; (c) detect, prevent or otherwise address security, fraud or technical issues; or (d) protect the rights, property or safety of CountingWorks, its users or third parties as required or permitted by law.
Copyright Notice Infringement Information – DMCA
If you believe that any Content in which you claim copyright has been infringed by anyone using the Service, please contact CountingWorks. CountingWorks may, in its sole discretion, suspend and/or terminate accounts of users that are found to be infringing.
Violations of Terms
If while using the Service, you encounter Content you find inappropriate, or otherwise believe to be a violation of these Terms, you may report it to CountingWorks here: email@example.com.
7. CONTENT SUBMITTED OR MADE AVAILABLE BY YOU ON THE SERVICE
License from You
Except for material we may license to you, CountingWorks does not claim ownership of the materials and/or Content you submit or make available on the Service. However, by submitting or posting such Content on areas of the Service that are accessible by the public, you grant CountingWorks a worldwide, royalty-free, non-exclusive license to use, distribute, reproduce, modify, adapt, publish, translate, publicly perform and publicly display such Content on the Service solely for the purpose for which such Content was submitted or made available and you consent to the use of the Content by CountingWorks and its related entities to any such use which would, but for your consent, infringe your moral rights. This license will terminate within a commercially reasonable time after you or CountingWorks remove such Content from the public area. By submitting or posting such Content on areas of the Service that are accessible by the public, you are representing that you are the owner of such material and/or have authorization to distribute it.
Changes to Content
You understand that in order to provide the Service and make your Content available thereon, CountingWorks may transmit your Content across various public networks, in various media, and modify or change your Content to comply with technical requirements of connecting networks or devices. You agree that the license herein permits CountingWorks to take any such actions.
8. TRADEMARK INFORMATION
CountingWorks, the CountingWorks logo, CountingWorks.com and other CountingWorks trademarks, service marks, graphics, logos used in connection with the Service are trademarks or registered trademarks of CountingWorks, Inc. in the US and/or other countries. Other trademarks, service marks, graphics, and logos used in connection with the Service may be the trademarks of their respective owners. You are granted no right or license in any of the aforesaid trademarks, and further agree that you shall not remove, obscure, or alter any proprietary notices (including trademark and copyright notices) that may be affixed to or contained within the Service.
CountingWorks’ Proprietary Rights
You acknowledge and agree that CountingWorks and/or its licensors own all legal right, title and interest in and to the Service, and any software (including any Content provided therein) provided by CountingWorks or made accessible to you as a part of and/or in connection with the Service (the “Software”), including any and all intellectual property rights that exist therein, whether registered or not, and wherever in the world they may exist. You further agree that the Service (including the Software or any other part thereof) contains proprietary and confidential information that is protected by applicable intellectual property and other laws.
License From CountingWorks
CountingWorks grants you a personal, non-exclusive, non-transferable, limited license to use the Software as provided or made accessible to you by CountingWorks as a part of the Service and in accordance with these Terms; provided that you do not (and do not permit anyone else to) copy, modify, create a derivative work of, reverse engineer, decompile, or otherwise attempt to discover the source code (unless expressly permitted or required by law), sell, lease, sublicense, assign, grant a security interest in or otherwise transfer any right in the Software or any aspect of the Service.
Use of the Service and Software, including transferring, posting, or uploading data, software or other Content via the Service, may be subject to the export and import laws of the United States and other countries. You agree to comply with all applicable export and import laws and regulations, including the GDPR. In particular, but without limitation, the Software may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Software or Service, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use the Software or Service for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You further agree not to upload to your account any data or software that cannot be exported without prior written government authorization, including, but not limited to, certain types of encryption software. This assurance and commitment shall survive termination of these Terms.
As part of the Service, you may from time to time receive updates to the Software from CountingWorks which may be automatically downloaded and installed to your device or hosted by CountingWorks. These updates may include bug fixes, theme upgrades, feature enhancements or improvements, or entirely new versions of the Software. You agree that CountingWorks may automatically deliver such updates to you or include such updates as part of the Service and you shall receive and install or, as the case may be, utilize, them as required.
You acknowledge and agree that CountingWorks shall not be responsible or liable in any way for any damages you incur or allege to have incurred, either directly or indirectly, as a result of the Software updates described above.
Copyright and Digital Imagery
Termination by You
You may terminate your account and/or stop using the Service upon 30 days’ prior written notice to CountingWorks.
Termination by CountingWorks
CountingWorks may at any time, under certain circumstances and without prior notice, immediately terminate or suspend all or a portion of your account and/or access to the Service. Circumstances under which CountingWorks may affect such termination shall include, but not be limited to: (a) violations of the Terms or any other policies or guidelines that are referenced herein and/or posted on the Service; (b) a request by you to cancel or terminate your account; (c) discontinuance or material modification to the Service or any part thereof; (d) a request and/or order from law enforcement, a judicial body, or other government agency; (e) where provision of the Service to you is or may become unlawful; (f) your participation in fraudulent or illegal activities. Any such termination or suspension shall be made by CountingWorks in its sole discretion, and CountingWorks will not be responsible to you or any third party for any damages that may result or arise out of such termination or suspension of your account and/or access to the Service, including without limitation loss of business contacts, sensitive business information or other data. CountingWorks may, at its sole discretion, terminate your use of the Service or access to this website at any time without notice.
Effects of Termination
Upon termination of your account, you will pay any unpaid and outstanding amounts for the Service to CountingWorks and you will lose all access to the Service and any portions thereof, including, but not limited to, your CountingWorks account and any content, contacts, data or documents generated, published or stored by the Service.
11. LINKS AND THIRD PARTY MATERIALS
Certain Content, components or features of the Service may include materials from third parties and/or hyperlinks to other websites, resources or Content. Because CountingWorks may have no control over such third party sites and/or materials, you acknowledge and agree that CountingWorks is not responsible for the availability of such sites or resources, and does not endorse or warrant the accuracy of any such sites or resources, and shall in no way be liable or responsible for any Content, advertising, products or materials on or available from such sites or resources. You further acknowledge and agree that CountingWorks shall not be responsible or liable in any way for any damages you incur or allege to have incurred, either directly or indirectly, as a result of your use and/or reliance upon any such Content, advertising, products or materials on or available from such sites or resources.
12. DISCLAIMER OF WARRANTIES
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO TO THE EXTENT SUCH EXCLUSIONS ARE SPECIFICALLY PROHIBITED BY APPLICABLE OR MANDATORY LAW, SOME OF THE EXCLUSIONS SET FORTH BELOW MAY NOT APPLY TO YOU.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE LEGAL RISK AND THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. CountingWorks AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, 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. IN PARTICULAR, CountingWorks AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS MAKE NO WARRANTY THAT (I) THE SERVICE WILL MEET YOUR REQUIREMENTS; (II) YOUR USE OF THE SERVICE WILL BE TIMELY, UNINTERRUPTED, SECURE OR ERROR-FREE; (III) ANY INFORMATION OBTAINED BY YOU AS A RESULT OF THE SERVICE WILL BE ACCURATE OR RELIABLE; AND (IV) ANY DEFECTS OR ERRORS IN THE SOFTWARE PROVIDED TO YOU AS PART OF THE SERVICE OR THE SERVICE ITSELF WILL BE CORRECTED.
ANY MATERIAL OR CONTENT TRANSMITTED, STORED, ACCESSED OR OTHERWISE MAINTAINED THROUGH THE USE OF THE SERVICE IS DONE SO AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR LOSS OR CORRUPTION OF DATA THAT RESULTS FROM ANY SUCH USE OF THE SERVICE. YOU FURTHER ACKNOWLEDGE THAT THE SERVICE IS NOT INTENDED OR SUITABLE FOR USE IN SITUATIONS OR ENVIRONMENTS WHERE THE FAILURE OR TIME DELAYS OF, OR ERRORS OR INACCURACIES IN, THE CONTENT, DATA OR INFORMATION PROVIDED BY THE SERVICE COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM CountingWorks OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
13. LIMITATION OF LIABILITY
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO TO THE EXTENT SUCH EXCLUSIONS OR LIMITATIONS ARE SPECIFICALLY PROHIBITED BY APPLICABLE OR MANDATORY LAW, SOME OF THE EXCLUSIONS OR LIMITATIONS SET FORTH BELOW MAY NOT APPLY TO YOU.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT CountingWorks AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF BUSINESS OPPORTUNITIES, GOODWILL, USE, DATA (INCLUDING BUSINESS CONTACTS), COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSSES (EVEN IF CountingWorks HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (I) THE USE OR INABILITY TO USE THE SERVICE; (II) ANY CHANGES MADE TO THE SERVICE OR ANY TEMPORARY OR PERMANENT CESSATION OF THE SERVICE OR ANY PART THEREOF; (III) THE UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE AND/OR SEND OR RECEIVE YOUR TRANSMISSIONS OR DATA ON OR THROUGH THE SERVICE; (V) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; AND (VI) ANY OTHER MATTER RELATING TO THE SERVICE. FURTHER, IN NO EVENT WILL CountingWorks’ TOTAL CUMULATIVE LIABILITY TO YOU OR ANY OTHER PARTY FOR CLAIMS, LOSSES, OR DAMAGES OF ANY KIND, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, INDEMNITY OR OTHERWISE, ARISING OUT OF OR RELATED IN ANY WAY TO THIS AGREEMENT OR THE SERVICES, EXCEED THE ACTUAL FEES CUSTOMER PAID TO CountingWorks FOR THE SERVICES UP TO THE LESSER OF THE AGGREGATE AMOUNT OF FEES PAID TO CountingWorks, OR THE AMOUNT OF FEES PAID OVER A 12-MONTH PERIOD.
You agree to defend, indemnify and hold CountingWorks, its affiliates, subsidiaries, directors, officers, employees, agents, partners and licensors harmless from any claim or demand, including reasonable lawyer’s fees, made by a third party, relating to or arising from: (a) any Content you submit, post, transmit, or otherwise make available through the Service; (b) your use of the Service; (c) any violation by you of these Terms; or (d) your violation of any rights of another. This obligation shall survive the termination or expiration of these Terms and/or your use of the Service.
CountingWorks may provide you with notices regarding the Service, including changes to these Terms, by email, SMS, regular mail, or by postings on its website and/or the Service.
16. GOVERNING LAW; ARBITRATION
This Agreement will be governed by and construed in accordance with the laws of the United States and the State of California, except that body of California law concerning conflicts of law. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. Any dispute or controversy arising under, out of, or in connection with this Agreement shall be resolved by binding arbitration under the commercial rules of the American Arbitration Association before a single arbitrator. Any such arbitration shall be conducted in Newport Beach, California, U.S.A. Judgment upon any award may be entered in any court of competent jurisdiction. The arbitrator shall be designated by mutual agreement of the parties or, if the parties cannot agree on an arbitrator within ten (10) days after a request for arbitration hereunder, each party shall designate one (1) arbitrator and the arbitrators so designated shall designate a third arbitrator who shall conduct the arbitration. The decision of the arbitrator shall be binding and conclusive upon the parties.
These Terms, along with any exhibit or appendix, including any Quote Form, constitutes the entire agreement between you and CountingWorks and govern your use of the Service. You may also be subject to additional terms and conditions that may apply when you use affiliate services, third-party content, or third-party software or services. If any part of these Terms is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. The failure of CountingWorks to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. You agree that, except as otherwise expressly provided in these Terms, there shall be no third-party beneficiaries to this Agreement. Any translation of these Terms is done for local requirements and in the event of a dispute between the English and any non-English versions, the English version of these Terms shall govern. You agree that any claim or cause of action you make arising out of or related to these Terms or the use of the Service must be filed within one (1) year after the cause of action arose or be forever barred.