Welcome to 360 Technologies USA LLC
These terms of service outline the rules and regulations for the use of 360 Technologies USA LLC’s Website.
Effective: January 2nd, 2020
This is an agreement between you (Customer) and 360 Technologies USA, LLC. a Florida corporation (“360 Tech”). The Agreement is effective as of the date the last party signs the purchase order form or the date and time that the Customer completes a purchase on the 360 Tech website (“Effective Date”).
360 TECH is a company dedicated to developing software for small and medium-sized businesses and thus supporting growth with the use of cutting-edge technology
Capitalized terms have the meanings described in this section or in the body of the Agreement.
“Agreement” means this Software as a Service Agreement and all Order Forms (unless otherwise required by context).
“Customer Data” means all electronic data or information that the Customer submits to the Service.
“Order” and/or” Orders” means a Customer purchase using a 360 TECH ordering document (the order form) or through Customer purchases made through the 360 TECH website that reference this Software as a Service Agreement.
“Service(s)” means “Live 360” software, a proprietary customer relationship management (CRM), and “Flash Team 360”, an online project management software based on the Kanban methodology (software as a service), accessible via the Internet.
“Term” means the period of the Customer’s subscription to the Service as specified in an Order, unless terminated earlier under Section 7 (Term and Termination).
“Third Party Products” means any products or services not developed by 360 TECH.
“User” means an employee or independent contractor of Customer that Customer authorizes to use the Service on Customer’s behalf.
“360 TECH” means the 360 TECH website and all associated eCommerce and Customer Relationship Management service software “Live 360” and Flash Team 360 owned by 360 Technologies USA.
Acceptance of terms
- SERVICE AND SUPPORT
2.1. Provision of Service. 360 TECH shall provide the Customer with access to the Service for the number of users specified on the Order during the Term.
2.2. Use of Service. The customer shall use the Service and the data generated by the Service only for its intended purpose and the Customer’s internal business use.
2.3. Support. 360 TECH shall provide Customers with technical support, both telephonic or email (“Customer Support”) between the hours of 9:00 am and 6:00 pm, the United States Eastern Standard Time.
- RESPONSIBILITIES AND RESTRICTIONS
3.1. 360 TECH Responsibilities. 360 TECH shall: (i) provide Customer with access to the Service in accordance with this Agreement and all applicable laws; and (ii) provide the Service with a minimum of 99.0% Uptime during any calendar month, except 360 TECH shall have 2 days to restore availability after any downtime. “Uptime” means the availability of the Service, excluding lack of availability due to Customer or third party causes, downtime for maintenance, or a force majeure event.
3.2. Customer Responsibilities. Customer shall: (i) cause Users to comply with this Agreement; (ii) cooperate with 360 TECH so that 360 TECH can provide the Service, including using reasonable efforts to make people and information available; (iii) be responsible for the Customer Data, except for 360 TECH’s obligations described in Section 5 (Confidentiality); (iv) use reasonable efforts to prevent unauthorized access or use of the Service and promptly notify 360 TECH if Customer discovers any unauthorized access or use; and (v) use the Service in accordance with this Agreement and applicable laws.
3.3 Restrictions. Only Users may use the Service and only with the account credentials issued to that User. Users may not share their account credentials. Customer shall not, and shall not permit any third party to (i) use the Service except as expressly authorized under this Agreement; (ii) interfere with or disrupt the integrity or performance of the Service; (iii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make the Service available; (iv) remove any title, trademark, copyright, or restricted rights notices or labels from the Service; (v) modify or create a derivative work of the Service or any portion of the Service; (vi) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code, object code or underlying structure or algorithms of the Service.
4.1. Fees. The customer shall pay all fees specified in all Orders (“Fees”). Fees are quoted and payable in United States dollars and are non-refundable, except as described in Section 7 (Term and Termination) prior to access to the Service. Credit cards and Amazon Pay™ (“Method”) are the only payment mechanism we will accept for payment of a monthly or yearly subscription fee (“Subscription Fee”) for a Paid Plan. If You select the Monthly Fee, the Method that You provide as part of the Billing Data will be automatically and immediately billed on the select Day of each month. If You select the Yearly Fee, the Method that You provide as part of the Billing Data will be automatically and immediately billed on the day You sign up. As long as Your Account remains active and in good standing, you will be charged the Subscription Fee even if You never use the service. You may, however, cancel Your Paid Plan at any time.
4.2. Taxes. Fees are exclusive of all taxes, including any applicable sales, excise, or use taxes (“Taxes”). 360 TECH shall include any Taxes on an Order or invoice, if applicable. The customer shall pay any Taxes directly or to 360 TECH, as required by law. If Customer is exempt from paying taxes, Customer shall provide 360 TECH with a valid tax exemption certificate. The customer is not responsible for taxes based on 360 TECH’s net income, property, or employees.
4.3. Invoicing and Payment Using Order forms. 360 TECH shall invoice the Customer according to the terms of the Order. Unless the Order states otherwise, Fees are due upon receipt of the invoice. The customer shall provide 360 TECH with complete and accurate billing and contact information and promptly notify 360 TECH of any changes throughout the Term. Access to the Service commences upon receipt of Fees.
4.4. Payment Disputes. If Customer disputes any invoiced amount in good faith, Customer shall give 360 TECH written notice with detailed support of the dispute within 10 business days of Customer’s receipt of the invoice. If Customer fails to do so, Customer waives its right to dispute that invoice, and the invoice 360 Tech be deemed accurate and valid. This section does not waive the Customer’s obligation to pay all undisputed Fees.
5.1. Definition. “Confidential Information” means oral, electronic, or written information disclosed by a party that is designated confidential or that reasonably should be understood to be confidential given its nature and the circumstances of its disclosure. Customer Confidential Information includes Customer Data. 360 TECH Confidential Information includes, but is not limited to, information pertaining to the features, functionality, and performance of the Service, pricing, and this Agreement. Confidential Information does not include information that: (i) is now or becomes generally known or available to the public without breach of this Agreement by 360 TECH ; (ii) was acquired by 360 TECH without restriction on its use or disclosure before the information was received from the disclosing party (the ”Discloser”); (iii) is obtained by 360 TECH without restriction on its use or disclosure from a third party authorized to make the disclosure, or (iv) is independently developed by 360 TECH without using or referring to the Discloser’s Confidential Information.
5.2. Protection of Confidential Information. 360 TECH may only use the Discloser’s Confidential Information in relation to this Agreement. 360 TECH shall maintain the confidentiality of the Discloser’s Confidential Information with at least the same degree of care that it uses to protect its own confidential and proprietary information (including but not limited to maintaining reasonable administrative, physical, and technical safeguards) and no less than a reasonable degree of care. 360 TECH shall not disclose any of the Discloser’s Confidential Information except to 360 TECH’s employees, contractors, and agents who need to know the information to provide the Service or in relation to an event described in Section 12.5 (Assignment), in which case 360 TECH shall cause these recipients to agree to and abide by commercially reasonable confidentiality terms. Each party has the right to obtain an injunction (without having to post a bond) to prevent any breach or continued breach of this section.
5.3. Compelled Disclosure. If 360 TECH is required by law or a valid court or government order to disclose any of the Discloser’s Confidential Information, then (to the extent permitted under the law) 360 TECH shall promptly notify the Discloser in writing of the required disclosure so that the Discloser may seek to protect its Confidential Information. 360 TECH shall cooperate with the Discloser in seeking such protection. If 360 TECH is required to disclose the Discloser’s Confidential Information, it shall disclose only the portion of the Confidential Information legally required and shall use reasonable efforts to obtain reliable assurances that the Confidential Information will be treated confidentially to the maximum extent possible.
- PROPRIETARY RIGHTS
6.1. Customer Ownership and Licenses. Customer owns all rights, title, and interest in and to Customer Data. During the Term, the Customer grants 360 TECH a worldwide, non-exclusive, royalty-free, non-sublicensable (except as needed to provide the Service), non-transferable (except as described in Section 12.5 (Assignment)) right to access and use the Customer Data to provide the Service to Customer and to monitor and improve the Service. Customer shall back up Customer Data during the Term and may not have access to the Customer Data via the Service after the Term.
6.2. Blind Data. 360 TECH may collect, develop, create, extract, compile, synthesize, analyze and commercialize statistics, benchmarks, measures, and other information based on Aggregated Data (collectively, “Blind Data”). Blind Data will be owned solely by 360 TECH and may be used for any lawful business purpose without a duty of accounting to the Customer. “Aggregated Data” means Customer Data that is: (i) anonymized and not identifiable to any person or entity; (ii) combined with the data of other customers or additional data sources; and (iii) presented in a way that does not reveal Customer’s or Customer user identity.
6.3. Feedback. If the Customer provides Feedback, the Customer grants 360 TECH a worldwide, perpetual, irrevocable, sub-licensable, royalty-free, transferable license to use the Feedback in the Service and any intellectual property 360 TECH develops.” Feedback” means recommendations, suggestions, enhancement requests or other feedback or any ideas, technology, developments, derivative works or other intellectual property related to the Service or any services or products provided by 360 TECH.
6.4. Reservation of Rights. 360 TECH and its licensors reserve all right, title, and interest in and to the Service, including all related intellectual property rights, subject to the limited rights expressly granted in this Agreement. No other rights are granted to the Customer by this Agreement.
- TERM AND TERMINATION
7.1. Term. The Term begins on the Effective Date and ends on the Termination Date. ”Termination Date” means the earlier date of (i) the expiration or termination of all Orders under this Agreement; or (ii) termination of this Agreement under this section.
7.2. Termination for Cause. A party may terminate this Agreement or any applicable Order: (i) if the other party is in material breach of this Agreement and fails to cure the breach within 30 days of receiving written notice from the non-breaching party; or (ii) if the other party becomes the subject of a petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Any notice of breach must contain specific information to substantiate the alleged breach. If the Customer terminates due to 360 TECH’s breach, the Customer’s exclusive remedy is a pro-rata reimbursement of prepaid Fees covering the remainder of the Term after the Termination Date. If 360 TECH terminates due to the Customer’s breach, the Customer will pay any unpaid Fees covering the remainder of the Term after the Termination Date. Termination under this section will not relieve the Customer of its obligation to pay any fees owed for the period prior to the Termination Date.
7.3. Effect of Termination. The customer shall immediately cease all use of and access to the Service on the Termination Date. Section 3.3 (Restrictions), Section 5 (Confidentiality), Section 6 (Proprietary Rights), Section 7 (Term and Termination), Section 9 (Limitation of Liability), and Section 11 (General Terms) will survive termination. All other rights and obligations will be of no further force or effect.
- WARRANTIES AND DISCLAIMERS
8.1. Mutual Warranties. Each party represents that it: (i) has the legal power to enter into this Agreement; (ii) will comply with all applicable laws during the Term; and (iii) will use reasonable efforts to avoid transmitting to the other party any harmful or malicious code, files, scripts, agents or programs.
8.2. Warranty Disclaimer. Except as set forth herein, or as noted on the Order, 360 TECH does not make any representations that the functions performed by the Service will meet all of the Customer’s requirements, that the operation of the Service will be uninterrupted or error-free, that all defects in the Service will be corrected, or that the Service will be available in all languages or all countries. THE SERVICE IS PROVIDED ”AS IS.” EXCEPT AS EXPRESSLY PROVIDED HEREIN, 360 TECH MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. SPECIFICALLY, THIRD-PARTY CONTENT AND TEST FEATURES ARE PROVIDED ”AS IS,” EXCLUSIVE OF ANY WARRANTY. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY NETWORKING OR HOSTING PROVIDERS OR THIRD-PARTY PRODUCTS.
- LIMITATION OF LIABILITY
9.1 Limitation of Liability. IN NO EVENT 360 TECH EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY THE CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY. THE FOREGOING LIMITATIONS 360 TECH DO NOT APPLY TO CUSTOMERS’ PAYMENT OBLIGATIONS.
9.2. Exclusion of Consequential and Related Damages. IN NO EVENT 360 TECH EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, COVER, OR PUNITIVE DAMAGES, HOWEVER, CAUSED, WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING 360 TECH DOES NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
- US. GOVERNMENT MATTERS
10.1. Each party represents that it is not named on any United States government list of persons or entities restricted from doing business with any United States company. Customer shall not directly or indirectly access or use the Service in violation of any United States or international export embargo, prohibition, or restriction.
10.2. Terms for U.S. Government Customers. This section applies only to Customers that are U.S. government entities subject to the cited regulations (“U.S. Government Customers”). The Service is a ”commercial item” (as defined in 48 C.F.R. 2.101) and involves the use of ”commercial computer software” and ”commercial computer software documentation” (as used in 48 C.F.R. 12.212). All U.S. Government Customers acquire subscriptions to the Service only as a ”commercial item” and only with those rights that are granted to all other end-users pursuant to the terms and conditions of this Agreement, consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.72021 through 227.72024.
11. CONTENT AND MOBILE TERM
Incorporation of MMA Guidelines: You agree to adhere to the current Mobile Marketing Association’s “U.S. Consumer Best Practices Guidelines” (“MMA Guidelines”) published at http://mmaglobal.com/policies/consumer-best-practices.
In the event of a conflict between terms in this document and the MMA Guidelines, this document shall prevail.
Content: “Content” means the material you are asking 360 TECH to store, process, or transmit to end-users. You represent the following:
1) You own the Content and/or you have obtained all licenses and clearances necessary for the distribution of the Content to mobile devices (and, optionally, websites, flash widgets, or other means of viewing the content that we mutually agree on). The Content does not violate the rights of any person or company protected by copyright, trade secret, patent or other intellectual property or similar laws or regulations.
2) The Content is consistent with standards imposed by mobile aggregators and carriers; specifically, it is not libelous, defamatory, false, misleading, inaccurate, sexually explicit, unlawful, obscene, or racially or ethnically offensive, or objectionable.
3) The Content adheres to the current Mobile Marketing Association “U.S. Consumer Best Practices Guidelines” published at http://mmaglobal.com/policies/consumer-best-practices.
4) The Content (including its storage, transmission, and delivery) does not violate any law or regulation in the United States, your home jurisdiction(s), or any jurisdiction where the Content is stored, transmitted, or delivered.
360 TECH may refuse to transmit or may delete any Content that, in its opinion, violates any of the above. In such case, 360 TECH will inform you of the problem and work with you so that the campaign may be completed.
In order for 360 TECH to fulfill the terms of this agreement and the associated insertion orders, you permit 360 TECH to transform and encode the Content into various formats, store it, and transmit it via third parties to mobile devices (and, optionally, web browsers, flash widgets, and other means of viewing the content that we mutually agree on).
360 TECH may refuse, suspend, or terminate any campaign that, in its opinion, is not in compliance with the then-current MMA Guidelines, (ii) violates any applicable law or regulation, or (iii) is deemed by 360 TECH, in its sole discretion, to present a reputational risk to 360 TECH or its partners, customers or affiliated businesses.
Use of Live 360. You are not to use Live 360 for any unlawful or abusive purpose, including but not limited to any use which disrupts the 360 TECH system or other customers, damages 360 TECH property, or interferes with 360 TECH’s ability to provide service to other users. You agree to comply with all laws while using Live 360and you agree not to transmit any communication that would violate any laws, court order or regulation or would likely be offensive to the recipient. You are responsible for all content you transmit through Live 360. 360 TECH only provides you with the SERVICE. 360 TECH Live 360 is not liable for any consequences that might arise from sending messages by any person that uses the service provided by 360 TECH.
Privacy. 360 TECH will collect, store, process, transmit or otherwise handle private information only with the knowledge and consent of you, our users. Mostly, this is done by completing your online order. 360 TECH will not sell or rent your personally identifiable information or your Customer Data to anyone. 360 TECH will not be liable for any lack of privacy you may experience while using Live 360, 360 TECH has the right to intercept, disclose, or delete any messages sent through Live 360 in order to protect its rights.
Opt-in Guarantee by Client. Clients of 360 TECH guarantee that the phone numbers and emails in their account are 100% opt-in, and Recipients recognize the sender and expect to receive messages from him/her. If for any reason 360 TECH suspects that the numbers may not be 100% opt-in, it reserves the right to request a written explanation from the client including the method of collecting the phone numbers and a guarantee signed by the client that all the people on his/her list agreed to receive text/email messages from the client. 360 TECH reserves the right to take any action it thinks appropriate in such case of suspected non-opt-in list, including but not limited to cancellation of the account.
STOP: At any time, a recipient of a mobile message (SMS or MMS) may have their phone number removed from the distribution list by replying STOP or STOP + KEYWORD.
GDPR – Controller Status: By using the SERVICE, you hereby agree and acknowledge that you are a “data controller” under the terms of the European General Data Protection Regulations (“GDPR”) and, to the extent the GDPR applies to your use of the SERVICE, you further acknowledge and agree that 360 TECH holds information solely on your behalf, (ii) 360 TECH will be acting solely as a “data processor” and, (iii) you are fully compliant with all GDPR rules and regulations relating to your use of the SERVICE (including providing requisite notice and opt-out rights to your users regarding the collection and storage of user data outside of the European Union).
Agreement. You acknowledge that these terms and conditions are a material part of 360 TECH’s decision to provide Live 360 service to you.
12. GENERAL TERMS
12.1. Dispute Resolution; Governing Law. The parties shall use good faith, and reasonable efforts to resolve any dispute before initiating legal action. The laws of the State of Florida, excluding choice of law principles, govern this Agreement.
12.2. Notices. Notices under this Agreement must be in writing and will be considered given upon: (i) delivery by traceable courier or mail (delivery confirmation/ return receipt requested); or (ii) the second business day after sending by email. Notices to 360 TECH should be sent to firstname.lastname@example.org or to 360 TECH’s Legal Department at the address specified above. Billing notices and notices relating to this Agreement will be sent to the contacts designated by the Customer on the Order, or via email to the Customer’s email address associated with their 360 TECH account.
12.3. Customer references. During the Term, 360 TECH may include Customer’s name, logo, and success stories on 360 TECH’s website, press releases, sales, promotional literature, and customer lists..
12.4. Force Majeure. Neither party will be responsible for failure or delay of performance if caused by an event outside the reasonable control of the obligated party, including but not limited to an electrical, internet, or telecommunication change or outage not caused by the obligated party; government restrictions; or illegal acts of third parties. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
12.5. Assignment. Neither party may assign any of its rights or obligations under this Agreement without the other party’s prior written consent (not to be unreasonably withheld), except either party may assign this Agreement in its entirety without the other party’s consent to its affiliate or as part of a merger, acquisition, corporate reorganization, or sale of all or substantially all its assets.
12.6. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
12.7. Waiver. No failure or delay by either party to exercise any right under this Agreement will constitute a waiver of that right unless expressly stated in this Agreement.
12.8. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the provision will be modified to the minimum extent necessary to make it enforceable. The provision will be disregarded only if such modification is not possible or is prohibited by law. The remaining provisions of this Agreement will remain in effect.
12.9. Order of Precedence. If there is a conflict or inconsistency between any physical Order form and this Service Agreement, the Order form will control.
12.10. Entire Agreement. This Agreement is the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter. No change to any provision of this Agreement or any Order will be effective unless in writing and signed by an authorized signatory of the party against whom the change is asserted. No terms in the Customer’s purchase order or other order documents (excluding Order Forms) will be incorporated into this Agreement, regardless of any terms to the contrary, and 360 TECH expressly rejects all such terms.
12.11. Headings. Headings are for reference only and do not affect the meaning or interpretation of this Agreement.
12.12. Signature Authority. The person signing Order forms or agreeing to this Service agreement via purchase on the 360 TECH website represents that they have the authority to bind the Customer to the terms of this Agreement.
12.13 Modification of terms. We reserve the right, at our sole discretion, to modify or replace the terms at any time. If the alterations constitute a material change to the terms, we will notify you by posting an announcement on the site. What constitutes a material change will be determined at our sole discretion. You shall be responsible for reviewing and becoming familiar with any such modifications. Using any of the Services shall constitute your acceptance of the terms as modified.