HEADNOTE USER AGREEMENT
Last Modified: [10/24/17]
BY USING HEADNOTE's SERVICES (EITHER BY SIGNING UP AS A REGISTERED USER OR USING HEADNOTE TO MAKE A PAYMENT), YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS, WHICH CONSTITUTE A LEGALLY ENFORCEABLE SOFTWARE AS A SERVICE (“SaaS”) AGREEMENT GOVERNING YOUR USE OF THE HEADNOTE's SOFTWARE ONLINE SERVICE (THE “SERVICE”). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY, YOU REPRESENT THAT YOU ARE OVER THE AGE OF 18, HAVE REACHED THE AGE OF LEGAL MAJORITY IN YOUR JURISDICTION OF RESIDENCE, YOU HAVE THE COMPLETE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF YOUR COMPANY, AND YOU ARE NOT A DIRECT COMPETITOR OF OURS (OR OTHERWISE REPRESENT, DiRECTLY OR INDIRECTLY, THE INTERESTS OF A DIRECT COMPETITOR). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF YOURSELF, YOU REPRESENT THAT YOU ARE OVER THE AGE OF 18 AND HAVE REACHED THE AGE OF LEGAL MAJORITY IN YOUR JURISDICTION OF RESIDENCE.
AS USED IN THIS AGREEMENT, THE TERM “GRANTEE” MEANS THE ENTITY OR PERSON RESPONSIBLE FOR THE ACCOUNT ESTABLISHED PURSUANT TO THIS AGREEMENT, EACH USER ACCESSING THE SERVICE BY MEANS OF A VALID ACCOUNT ESTABLISHED BY GRANTEE. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY, THE TERM “GRANTEE” MEANS ALL EMPLOYEES OF YOUR COMPANY WHO ARE GIVEN ACCESS TO THE SERVICE. IF YOU DO NOT HAVE THE REQUISITE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF YOUR COMPANY, OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN, OR IF YOU ARE A DIRECT COMPETITOR OF OURS (OR REPRESENT THE INTERESTS, DIRECTLY OR INDIRECTLY, OF A DIRECT COMPETITOR) YOU MAY NOT USE THIS SERVICE.
As used in this Agreement:
” means this User Agreement, the original Sign up Form and associated checkbox, the Payment Terms and Conditions and associated checkbox, any subsequent billing changes, whether written or submitted online via HEADNOTE's service, and any materials available on www.headnote.com
specifically incorporated by reference herein, as such materials, including the terms of this Agreement, may be updated by HEADNOTE from time to time in its sole discretion pursuant to the provisions of this Agreement;
” means the software feature enabling Grantees to have access to edit their billing information, update the number of users, and add/edit payment methods;
“Headnote Order Center
” means the HEADNOTE online application that allows the Authorized Administrator designated by Grantee to, among other things, add additional Users to the Service;
” means the person(s) designated by Grantee to register for the Services online using the HEADNOTE Order Center or by executing written Order Forms and to create User accounts and otherwise administer Grantee’s use of the Service;
means any of the Grantee’s customers or clients, whether an entity, person or individual, or any person or entity that is using HEADNOTE to initiate a payment to a Grantee or HEADNOTE user;
” means any of Grantee’s customer’s or other individual’s personal data, credit data, biometric data, transaction data, system data, other data, information or material that Grantee accepts, utilizes, processes or collects from customers or individuals and/or submits to HEADNOTE in the course of using the Service;
” means the information, documents, software, products and services made available under this Agreement to Grantee and any User in connection with their use of the Service;
means any information, technical data, or know-how considered proprietary or confidential by either party to this Agreement including, but not limited to, any information you upload, create or post to the Service and any information provided by you to Headnote in connection with the Service, including, without limitation, information about your Users, Clients or Authorized Administrators, either party’s research, services, inventions, processes, specifications, designs, drawings, diagrams, concepts, marketing, techniques, documentation, source code, customer information, personally identifiable information, pricing information, procedures, menu concepts, business and marketing plans or strategies, financial information, and business opportunities disclosed by either party before or after the Effective Date of this Agreement, either directly or indirectly in any form whatsoever, including in writing, orally, machine readable form or through access to either party’s premises.
” means Headnote Inc., a Delaware corporation, having its principal place of business at: 450 Townsend Street, San Francisco, CA.
“Headnote SaaS Technology
” means all of the proprietary technology of HEADNOTE (including software, hardware, products, business concepts, and processes, logic algorithms, graphical user interfaces (GUI), techniques, designs and other tangible or intangible technical material or information) made available to Grantee by HEADNOTE in providing the Service;
” means the earlier of either the date this User Agreement is accepted by Grantee as indicated by Grantee’s clicking any of the Signup buttons, including “REQUEST ACCESS”, “REQUEST FREE TRIAL”, or “SIGN UP”, from any page on www.headnote.com
or the date Grantee begins using the Service, or the date Client clicks on a Headnote button, including “VIEW AND PAY INVOICE”, “MAKE A PAYMENT”, “CONTINUE”, “MAKE PAYMENT”, “SUBMIT PAYMENT” or date Client checks Payment Terms & Conditions checkbox;
shall refer to the purchaser of the Services provided by HEADNOTE and shall also include any present or former agent, representative, independent contractor, employee, servant, attorney and any entity or person who had authority to act on your behalf.
“Hosting Server Provider
” means any third party hosting computer server provider(s) where the Services reside.
“Intellectual Property Rights
” means all rights, title and interest in and to the HEADNOTE SaaS Technology, the Content, the Service and all copyrights, patents, trade secrets, trademarks, service marks or other intellectual property or proprietary rights and any corrections, bug fixes, improvements, enhancements, updates, releases, or other modifications, including custom modifications made by HEADNOTE relating thereto, and the media on which same are furnished;
” means the form evidencing the initial designation of Service and any subsequent Order Forms, specifying, among other things, the edition of the Service selected and covered by the Grant (as defined in Section 2.1, below), the Term, the number of Users, the applicable Use Fee (as defined below), the billing period, and other services and Charges (as defined below) including transaction fees, as agreed to between HEADNOTE and Grantee, each such Order Form to be incorporated into and to become a part of this Agreement. In the event of any conflict between the terms of this Agreement and the terms of any such Order Form, the terms of this Agreement shall prevail;
” means the specific edition of HEADNOTE, or other offerings developed, operated, and maintained by HEADNOTE, accessible via www.headnote.com
or www.headnotelaw.com or another designated web site or IP address, or ancillary services rendered to Grantee by HEADNOTE, to which Grantee is being granted access under this Agreement;
” means the period(s) during which a specified number of Users have the right to use the Service pursuant to the Grant and as designated on an Order Form(s);
” means Grantee’s or Client’s employees, representatives, consultants, contractors or agents who are authorized under the Grant made by this Agreement to gain access to and use the Service and who have been supplied User identifications and passwords by Grantee (or by HEADNOTE at Grantee’s request).
2. GRANT OF RIGHTS; TERM AND RESTRICTIONS
2.1 Grant of Rights
. Subject to Grantee’s compliance with the terms and conditions of this Agreement and solely during the Term of this Agreement, HEADNOTE hereby grants Grantee a limited, revocable, non-exclusive, non-sublicensable, non-transferable license to use the Service solely for Grantee’s own internal business purposes (“Grant”).
2.2 Term of Grant
. The Grant shall be for the Term Grantee selects, either the monthly plan or yearly, which shall not be less than one (1) month, and shall commence on the Effective Date (“Initial Term”), and will be automatically renewed for successive terms of the same period of time (each a “Renewal Term”) unless terminated by either party in accordance with the terms of this Agreement.
2.3.1 HEADNOTE and its licensors reserve all rights not expressly granted to Grantee. The Grant cannot be shared or used in any Users other than those referenced in the Order Form referenced above. However, the Grant may be reassigned from time to time to new Users that are replacing former Users which have terminated and no longer use the Service, so long as Grantee obtains the prior written consent of HEADNOTE with respect to any such reassignment, which consent shall not be unreasonably withheld. The Grant is conditional on Grantee’s continued compliance with this Agreement and will terminate if Grantee does not comply with any term or condition of this Agreement.
2.3.2 Grantee shall not, and shall not attempt to, directly or indirectly:
(i) License, grant, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make available to any third party the Service or any part of its Content in any way;
(ii) Use the Service to submit, store, transmit or process malicious code, worms or viruses;
(iii) Use the Service to submit, store, transmit or process Client Data that is or may be:(a) threatening, harassing, degrading, hateful or intimidating; (b) libelous or defamatory; (c) fraudulent, tortious or unlawful; (d) obscene, indecent, pornographic or otherwise objectionable; or (e) infringing of any person’s rights, any applicable laws or Grantee’s obligations to any third party;
(iv) Use the Service to submit, store, transmit, process, or otherwise disclose Client Data.
(v) Use the Service to submit, store, transmit or process Client Data that would violate state or federal privacy laws, or in a way that would give rise to criminal or civil liability or that encourages unlawful activity;
(vi) Use the Service to submit, store, transmit or process User data that would violate state or federal labor laws, or in a way that would give rise to criminal or civil liability or that encourages unlawful activity;
(vii) Gain unauthorized access to the Service or to the systems or networks of HEADNOTE or its customers;
(viii) Except as otherwise expressly permitted by this Agreement, reproduce, duplicate, copy, sell, resell, rent, sublicense, transfer, lease, make available or exploit the Service (or any part of the Service), use of the Service, or access to the Service;
(ix) Publish or disclose any benchmarks of the Service to third parties;
(x) Interfere with or disrupt the integrity or performance of the Service or third-party content contained therein;
(xi) Impersonate any person or entity or misrepresent Grantee’s affiliation with any person or entity in connection with the Service;
(xii) Modify, alter, tamper with, repair, or create derivative works of any Content or any software included in the Service;
(xiii) Reverse engineer, disassemble, or decompile the Service or apply any other process or procedure to derive the source code of any software included in the Service;
(xiv) Access, use or attempt to modify the Service in a way intended to avoid incurring fees or exceeding usage limits or quotas;
(xv) Copy, frame, mirror or link to any part or content of the Service, other than on Grantee’s own intranets or otherwise solely for Grantee’s own internal business purposes;
(xvi) Access the Service in order to (a) build a competitive product or service, (b) build a product or service using ideas, features, functions, or graphics similar to those of the Service, or (c) copy any ideas, features, functions, or graphics of the Service;
(xvii) Remove any copyright, trademark or other proprietary rights notice from the Service; or
(xviii) Provide access to the Service to a third party(-ies) who does or attempts to do any of the foregoing.
3. THE SERVICE
3.1 Use of the Service
. HEADNOTE will provide Grantee with use of the Service, including a browser interface and online payment, data encryption, transmission, access and storage in the edition selected by Grantee in the Order Form.
3.2 Availability of the Service
. HEADNOTE makes no guarantees as to the continuous availability of the Service or of any specific features of the Service. HEADNOTE may change or discontinue the Service or change or remove any features or functionalities of the Service from time to time. If Grantee does not agree to any such change, its only recourse is to terminate this Agreement in accordance with Section 12.
3.3 Access to the Service
3.3.1 HEADNOTE operates a web Portal (“Portal”) to provide you with access to the Service, which will be available to Grantee through the Internet via a secured, password-protected computer interface or access code. Grantee agrees to access the Portal at its own risk and that it is solely responsible for ensuring that the method of access, content and scope, and your use off the Service is compatible with its own business needs and requirements.
3.3.2 Following the Effective Date of this Agreement and Grantee’s completion of any applicable set-up forms and other documents that may be required by HEADNOTE, HEADNOTE will electronically deliver, or otherwise make available, to Grantee instructions on how to establish a connection with the Portal for access to and use of the Service.
3.3.3 Grantee and Client agree that only the designated User(s) will be permitted to access the Services and that Grantee or Client is responsible for any unauthorized access. In addition, Grantee and Client shall assume full responsibility that its Users abide by the terms and conditions of this Agreement and Grantee understands and agrees that any passwords and access codes are for use only by Grantee and its designated User(s) and are strictly prohibited from being shared with other individuals or entities. Finally, Grantee and Client agree that the unauthorized sharing of any passwords and/or User access codes may cause HEADNOTE irreparable harm and that, in addition to HEADNOTE's right to pursue available remedies including, but not limited to injunctive relief and the collection of monetary damages, such breach shall, at HEADNOTE's option, result in the immediate suspension or termination of this Agreement and Grantee’s access to the Services. Grantee and Client agree to defend, indemnify and hold harmless HEADNOTE from any and all losses, costs, damages, liabilities and expenses (including, without limitation, reasonable attorney’s fees) incurred or arising from any claim, demand or cause of action relating to any breach of the promises made to HEADNOTE in Sections, 3.3.1, 3.3.2 and this Section 3.3.3.
3.3.4 HEADNOTE will use commercially reasonable efforts to maintain the active status of the Portal, the Service, and any Hosting Server Provider computer servers, but Grantee agrees that HEADNOTE will not be liable for any loss, cost, damage or expense resulting from or relating to your lack of access to the Portal or the Services including, without limitation: (i) times that we, our Licensor and/or our Hosting Server Provider may be updating or maintaining the Services, the Software, and/or any hardware; and (ii) during such times as the Portal and/or the Services may be inaccessible for any reason (or for no identifiable reason) whatsoever, within or outside of our control.
3.3.5 Grantee agrees that HEADNOTE does not and will not provide Grantee or Client with hardware or software necessary for Grantee or Client to gain access to the Portal and the Services. Rather, Grantee and Client are solely responsible for: (a) obtaining and maintaining such hardware and software (including, but not limited to, acquiring, installing and maintaining all telephone equipment, modems, routers, scanning devices, and other hardware and communication equipment) necessary to gain access to the Services, and the performance and security of such devices; (b) contracting with an internet service provider or telecommunications carrier for services necessary to establish your connection and access to the internet, the Portal, and the Services. In addition, Grantee agrees that it is solely responsible for all costs, charges and expenses associated with the foregoing.
4. INTERNET DELAYS
The Service may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications. HEADNOTE is not responsible for any delays, failures, or other damage resulting from such problems.
HEADNOTE shall provide forum support via direct message with a HEADNOTE representative via any page on HEADNOTE's website www.headnote.com
, by emailing firstname.lastname@example.org
, or by calling (888) 384-3236.
Email and telephonic requests for hard-copy documentation, upgrades, enhancements, and service modifications will not be granted, unless Grantee specifically contracts for such materials and/or services. The Service will be unavailable from time to time for routine maintenance. Other support may be excluded on public holidays, which are New Year’s Day, Thanksgiving Day, Christmas Eve and Christmas Day.
6. GRANTEE’S RESPONSIBILITIES
Grantee and Client are responsible for all activity occurring under Grantee’s or Client’s User accounts and for Users’ compliance with the terms and conditions of this Agreement. Grantee and Client shall fully comply with all applicable local, state, federal, and foreign laws, treaties, rules, and regulations in connection with Grantee’s or Client’s use of the Service, including, without limitation, those related to data privacy, data security, breach notification, international communications, and the collection, transmission, processing, cross-border transfer, and disclosure of Client Data, including technical and personal data. Grantee shall: (i) notify HEADNOTE immediately of any known or suspected violation of any law relating to Client Data, (ii) notify HEADNOTE immediately of any unauthorized use of any password or account or any other known or suspected breach of Service security; and (iii) report to HEADNOTE immediately and use reasonable efforts to stop immediately, any copying or distribution of Content that is known or suspected by Grantee or any User under this Grant.
7. CLIENT DATA
7.1 Client Data
. Grantee shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of any of its Client Data and agrees that any support provided by HEADNOTE in the provision of the Services shall not be construed by grantee of the accuracy, quality, integrity, legality, reliability, or appropriateness of any of its Client Data.
7.2 Grantee Responsibilities
. HEADNOTE shall not be responsible or liable for: (i) the deletion, correction, destruction, and/or damage, to any Client Data; or (ii) Grantee’s or User’s collection, use, storage, cross-border transfer, or disclosure of the Client Data.
7.3 Disclosure and Use of Client Data
7.4 Review of Client Data
. HEADNOTE does not have any obligation to monitor or review Client Data for any purpose. Notwithstanding the foregoing, HEADNOTE reserves the right to take steps it believes are reasonably necessary to enforce and/or verify compliance with this Agreement. Without limiting the foregoing, HEADNOTE may, without notice (unless required by law) or liability to Grantee, access, use and/or preserve Grantee’s account information and/or Client Data and disclose Grantee’s account information and/or Client Data to law enforcement authorities, government officials and/or any other party as HEADNOTE reasonably believes necessary or appropriate: (i) if HEADNOTE is required to do so to comply with legal process or governmental request, (ii) to enforce this Agreement, (iii) to detect or prevent security, fraud or technical issues, (iv) to protect the rights, property and/or safety of HEADNOTE, its users, Grantee, or any other person, or (v) as permitted by law. HEADNOTE also reserves the right to notify the appropriate authorities, without prior notice to Grantee, if HEADNOTE reasonably believes that Grantee’s Client Data violates any applicable law. GRANTEE agrees to HOLD HEADNOTE HARMLESS FROM and against any losses, costs, damages liabilities and expenses, and waives (to the extent permitted by applicable law) any claims, GRANTEE or other third party may have against HEADNOTE, resulting from any disclosure, investigation or act or omission of HEADNOTE in the course of conducting or cooperating with an inspection as set forth in this section. GRANTEE FURTHER AGREES TO KEEP THE FACT AND DETAILS OF ANY SUCH INSPECTION CONFIDENTIAL, UNLESS GRANTEE IS COMPELLED BY APPLICABLE LAW TO DISCLOSE SUCH FACT and/or details.
8. INTELLECTUAL PROPERTY OWNERSHIP
. HEADNOTE (and its licensors, where applicable) owns all rights, title and interest, including all related Intellectual Property Rights, in and to the HEADNOTE SaaS Technology, the Content, the Service, and any suggestions, ideas, improvements, enhancement requests, feedback, recommendations or other information provided by Grantee or any User relating to the Service. The HEADNOTE name, the HEADNOTE logo, and the product names associated with the Service are trademarks of HEADNOTE or third parties, and no right or license is granted to use them. This Agreement is not a sale and does not convey to Grantee any rights of ownership in or related to the Service, the HEADNOTE SaaS Technology, the Content or the Intellectual Property Rights owned by HEADNOTE. Grantee acknowledges that, except as specifically provided under this Agreement, no other right, title, or interest in these items is granted.
8.2 Use of Trademarks and other Intellectual Property.
Grantee agrees that HEADNOTE may use Grantee’s name, trademarks, service marks, and/or logos in any advertising or promotional materials for the Service or HEADNOTE.
9. THIRD PARTY INTERACTIONS AND LINKS
During use of the Service, Grantee or its User(s) may enter into correspondence with, purchase goods and/or services from, or participate in promotions of advertisers or sponsors showing their goods and/or services through the Service. Any such activity, and any terms, conditions, warranties or representations associated with such activity, are solely between Grantee and the applicable third-party. HEADNOTE and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchases or promotions between Grantee and any such third-party. HEADNOTE does not endorse any sites on the Internet that are linked through the Service. HEADNOTE provides these links to Grantee only as a matter of convenience, and in no event shall HEADNOTE or its licensors be responsible for any content, products, or other materials on or available from such sites. The Grant does not provide any license or agreement that may be required by third-party providers of ancillary software, hardware, or services prior to Grantee’s use of or access to such software, hardware, or services.
10. PAYMENT OF FEES AND CHARGES
10.1 Fees Associated With Use of Service
To the extent the Service or any portion thereof is made available for any fee, or you are a Client or Client’s User paying a Lawyer, Legal Service Provider/Vendor for goods or services, or any other entity, person or organization via the Service, you will be required to provide HEADNOTE with information regarding your credit card, banking information, or other payment instrument. You represent and warrant to HEADNOTE that such information is true and that you are authorized to use the payment instrument.
If you have registered for the Services via a subscription plan, you expressly acknowledge and agree that (a) HEADNOTE is authorized to charge your credit card or other payment instrument in accordance with the terms of your subscription plan for as long as your subscription continues, and (b) your subscription is continuous until you cancel it or HEADNOTE suspends or otherwise stops providing access to the site and/or Services in accordance with these terms. You will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur.
As an Attorney, Legal Service Provider/Vendor, or any other entity, person, or organization using HEADNOTE's services, you may also be required to select a payment plan and you agree to pay a pre-selected percentage of money you receive from purchases made by Clients, other Grantees, or any other person, entity or organization of your goods and services (“transaction fees”) through the Service, and you will pay HEADNOTE a percentage of each such transaction, as set forth in further detail on the Service. By signing up for HEADNOTE and agreeing to our Terms of Service you agree to pay the pre-determined transaction fee to HEADNOTE. If you are a Client or Client’s User or any other person using HEADNOTE to make a payment, by agreeing to our Terms of Service you are acknowledging that you understand that when you authorize payment part of those funds will be paid to HEADNOTE as part of the pre-determined transaction fee the Attorney, Legal Service Provider/Vendor, or any other entity, person, or organization using HEADNOTE's services agreed to pay upon signing up to become a HEADNOTE user.
As a User or Grantee, by signing up for HEADNOTE and agreeing to our Terms of Service, you acknowledge and agree that Headnote will be entitled to the predetermined transaction fee that will come out of each payment made to User, Grantee, or any other entity, person, or organization using the Service. If User or Grantee requests a payment be made to an Operating Account, HEADNOTE's transaction fee will be deducted from the payment amount prior to being deposited into the bank account of the User or Grantee. Further, by signing up for HEADNOTE and agreeing to our Terms of Service, User or Grantee acknowledges and agrees that said transaction fees belong to HEADNOTE and authorizes HEADNOTE to deduct said transaction fee from the User or Grantee’s Operating Account funds at the time of the transfer. If User or Grantee requests a payment be made to a Trust or IOLTA Account, HEADNOTE's transaction fees will not be subtracted from the funds themselves at the time of transfer. Rather, those transaction fees will be subtracted from the User or Grantee’s Operating Account to preserve and protect the Trust Account funds. By signing up for HEADNOTE and agreeing to our Terms of Service, User or Grantee agrees that HEADNOTE is entitled to those transaction fees incurred as a result of facilitating a payment to a trust account, and authorizes Headnote to take said transaction fees from User or Grantee’s Operating Account.
If you dispute any payments made or charges incurred using HEADNOTE you must let HEADNOTE know within 3 (three) days after the date that HEADNOTE charges you for a payment made via ACH or 30 (thirty) days after the date of charges for a payment made via credit card, and you must also contact the User or Grantee directly regarding the disputed charge or payment. If User or Grantee agrees to refund any fees procured using HEADNOTE, User or Grantee is responsible and will pay HEADNOTE (and HEADNOTE may retain) any transaction costs associated with such refund, and authorizes HEADNOTE to deduct those fees from User or Grantee’s Operating Account. In the event that a payment made using HEADNOTE is disputed after the funds have already been transferred to a User or Grantee and the dispute is not resolved in User or Grantee’s favor, User or Grantee authorizes HEADNOTE to pull those funds from the User or Grantee’s Operating Account to cover the entire disputed amount including any related transaction fees. If User or Grantee’s Operating Account does not contain the funds necessary to cover reimbursing HEADNOTE for the cost of the disputed funds, User or Grantee agrees to pay HEADNOTE said funds with seven (7) days of being notified of such by HEADNOTE.
We reserve the right to change HEADNOTE's prices. If HEADNOTE does change prices, HEADNOTE will provide notice of the change on the Site or in email to you, at HEADNOTE's option, at least 10 (ten) days before the change is to take effect. Your continued use of the Service after the price change becomes effective constitutes your agreement to pay the changed amount. You shall be responsible for all taxes associated with the Services other than U.S. taxes based on HEADNOTE's net income.
Grantee shall pay all fees or charges in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. The fee for the Grant (“Use Fee”) will be equal to the Use Fee currently in effect under the current HEADNOTE schedule of Use Fees for the edition selected in the Order Form (currently 3.5% for credit card transactions and 1.9% for ACH / eCheck transactions). If Grantee is a monthly subscriber, the initial Use Fee of $27 per user per month will be payable the same day as an order after the free trial membership period has ended, and thereafter, HEADNOTE will automatically bill Grantee’s credit card, debit card or bank account on the same day each month as the day of the first payment and this monthly fee is non-refundable. If Grantee is a yearly subscriber, the fee of $297 per user per year will be billed annually and are non-refundable 30 days after payment. New accounts may be eligible for a seven (14)-day trial period, after which Grantee will be charged according to the terms of this Section. Eligible “new” accounts are those included in new separate accounts in HEADNOTE's subscriptions for HEADNOTE Billing, Online Payment, Account Management, and CRM. Grantee is responsible for paying all User Fees ordered for the entire Term, without regard to whether all Users are active, including responsibility for transaction fees that are charged due to payments made after the Term has ended. Grantee must provide HEADNOTE with a valid credit card, debit card, bank account number or approved purchase order as a condition to signing up for the Service one the free trial membership period has ended. An Authorized Administrator may add additional Users by executing an additional written Order Form or using the HEADNOTE Billing page online. Added Users will be subject to the following:
(i) The use Term of added Users will be contemporaneous with the Term of the existing Grant;
(ii) Users added in the middle of a billing period will be charged in full for that billing month. A prorated credit will be added for the unused days of the previous billing period.
(iii) Users added in the middle of a billing period will be charged in full for that billing month and will reset the billing period (annually/monthly) to start at the date of change. A prorated credit will be added for the unused days of the previous billing period.
The current HEADNOTE User pricing model is based on a flat rate, which per-User fee may be changed from time to time at HEADNOTE's sole discretion. Information is available at www.headnote.com/pricing
. Users are also responsible for paying transaction fees related to every payment made to User over HEADNOTE's platforms as follows: 1.9% for eCheck/ACH transfers and 3.5% for all credit card transactions. These transaction fees may be changed from time to time at HEADNOTE's sole discretion.
HEADNOTE will charge any software customization fees as mutually agreed upon in writing mutually by HEADNOTE and Grantee.
HEADNOTE reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least ten (10) days’ prior notice to Grantee. The Use Fee for a renewal Grant will be equal to the number of total users then in effect, times the User Fee in effect at the time of renewal. Charges for other services (“Charges”) will be made on an as-quoted basis. The Use Fee and Charges are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Grantee shall be responsible for payment of all such taxes, levies, or duties, excluding only federal or state taxes based solely on HEADNOTE's income.
If Grantee updates its payment information, HEADNOTE will charge the latest account provided by Grantee. Grantee represents that Grantee has the legal right to use any payment account that Grantee uses to purchase from HEADNOTE. Grantee agrees to update billing and account information within three (3) business days of any change to applicable payment information, as well as to Grantee’s legal name, street address, e-mail address, and the names and telephone numbers of an authorized billing contact and Authorized Administrator. If the contact information Grantee provides is false or fraudulent, HEADNOTE reserves the right to terminate Grantee’s access to the Service, in addition to any other legal remedies. If Grantee believes that the fees or Charges to Grantee’s account are incorrect, Grantee must contact HEADNOTE in writing within forty-five (30) days of the date of the charge in question, to be eligible for consideration to receive an adjustment or credit. All payments shall be in United States currency and are final. HEADNOTE will not provide full or partial refunds outside of the 30 days refund period after the purchase of an annual membership plan.
In the event of termination of this Agreement, Grantee agrees to pay the balance due on Grantee’s account (plus any applicable late payment charges). Grantee agrees that HEADNOTE may charge such unpaid fees and Charges to Grantee’s credit card, debit card, or bank account, or otherwise bill Grantee for such unpaid fees and Charges.
11. NON-PAYMENT AND SUSPENSION
11.1 Suspension / Termination for Delinquent Accounts.
HEADNOTE reserves the right to suspend or terminate this Agreement and Grantee’s access to the Service immediately if Grantee’s account becomes delinquent or Grantee is otherwise unable to provide proper payment. In the event a Grantee’s account is suspended as a result of non-payment, a $25 reactivation fee will be applied upon the reactivation of the account, plus, to the fullest extent permitted by law, all expenses and legal fees incurred by HEADNOTE while collecting fees and Charges from Grantee. Grantee agrees that, if Grantee’s use of the Service is suspended but not terminated, Grantee will be obligated for and agrees to pay the Use Fee for the number of Users for the balance of the full Term. HEADNOTE reserves the right to impose a reconnection fee in the event Grantee’s rights are suspended and thereafter requests access to the Service. HEADNOTE will charge a $25 reconnection fee for each suspended or deactivated user, should HEADNOTE be asked by Grantee to reactivate a specific user and HEADNOTE so agrees. Grantee agrees and acknowledges that HEADNOTE has no obligation to retain Client Data and that such Client Data may be irretrievably deleted if Grantee’s account is delinquent.
11.2 Late Payment Charges
. Invoices and accounts that are not paid in full within fifteen (15) days of the applicable due date are subject to a late payment charge equal to ten percent (10%) of the aggregate Use Fee then due or the maximum charge permitted by applicable law, whichever is lower.
11.3 Increases in Reactivation, Reconnection and Late Payment Fees.
The foregoing reactivation and reconnection fees and late payment charges are subject to increase by HEADNOTE at any time, with or without prior notice to Grantee, to reflect HEADNOTE's then current policies, procedures and charges.
12.1 Termination for Convenience.
HEADNOTE may terminate this Agreement, or reduce the number of Users, effective upon the expiration of the then current Term, by notifying Grantee in writing at least five (5) business days prior to the end of the current Term. Grantee may terminate this Agreement, update billing information, or reduce the number of users, effective upon the expiration of the then current Term, by contacting HEADNOTE at (888) 384-3236 or emailing email@example.com at least five (5) business days prior to the end of the current Term.
12.2 Termination for Cause
. HEADNOTE may, in its sole discretion, immediately suspend or terminate Grantee’s password, account and use of the Service if HEADNOTE believes in its sole discretion that Grantee or any User has breached any provision of this Agreement.
12.3 Termination of Free Accounts
. HEADNOTE may terminate a free account at any time in its sole discretion, with or without prior notice to Grantee.
12.4 Access to Client Data Upon Termination
. In the event this Agreement is terminated (other than by reason of Grantee’s breach), HEADNOTE will make available to Grantee a file of the Client Data within ninety (90) days of termination if Grantee so requests in writing at the time of termination. Grantee agrees and acknowledges that HEADNOTE has no obligation to retain the Client Data, and may delete, without incurring any liability, such Client Data, on the ninety-first (91st) day after termination. HEADNOTE reserves the right to withhold, remove and/or discard Client Data, without notice or liability, for any breach of this Agreement by Grantee, including, without limitation, Grantee’s non-payment. Upon termination due to Grantee’s breach, Grantee’s right to access or use Client Data shall immediately cease, and HEADNOTE shall have no obligation to maintain or provide any Client Data.
. Sections 2, 6-8, 11-17, 20-21 and 23 shall survive the termination of this Agreement.
13. REPRESENTATIONS & WARRANTIES
13.1 Representations and Warranties
. Each party represents and warrants that it has the legal power and authority to enter into this Agreement. HEADNOTE represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will be capable of performing substantially in accordance with the online HEADNOTE support documentation under normal use and circumstances. In addition to its other representations and warranties contained herein, Grantee and Client represent and warrant that Grantee and Client have not falsely identified Grantee or Client or any User nor provided any false information to gain access to the Service and that Grantee’s and Client’s billing information is correct.
14. DISCLAIMER OF WARRANTIES
14.1 Services provided on an “AS IS” Basis
. THE SERVICE AND ALL CONTENT, INCLUDING, WITHOUT LIMITATION, ANY THIRD-PARTY PRODUCTS OR SERVICES MADE AVAILABLE THROUGH THE SERVICE, ARE PROVIDED TO GRANTEE STRICTLY ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY REPRESENTATIONS, WARRANTIES, OR GUARANTEES OF ANY KIND, OTHER THAN THOSE EXPRESSLY MADE ELSEWHERE IN THIS AGREEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, HEADNOTE AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA, (B) THE SERVICE WILL MEET GRANTEE’S REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY GRANTEE THROUGH THE SERVICE WILL MEET GRANTEE’S REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
. ALL CONDITIONS, REPRESENTATIONS, AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY HEADNOTE AND ITS LICENSORS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. SOLELY TO THE EXTENT SUCH LAW APPLIES TO GRANTEE, SOME OR ALL OF THE EXCLUSIONS SET FORTH ABOVE MAY NOT APPLY TO GRANTEE, AND GRANTEE MAY HAVE ADDITIONAL RIGHTS.
15. LIMITATION OF LIABILITY
15.1 Liability Exclusions
. IN NO EVENT SHALL HEADNOTE, ITS PARENT ORGANIZATION, AFFILIATES, SUBSIDIARIES, AND LICENSORS, OR EACH SUCH ENTITY’S RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS (THE “HEADNOTE ENTITIES”) BE LIABLE TO GRANTEE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY TYPE OR KIND UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER THEORY, (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA, REVENUE, PROFITS, USE, SECURITY OF DATA (INCLUDING BUT NOT LIMITED TO CLIENT DATA) IN THE POSSESSION, CONTROL, OR STORAGE OF GRANTEE, GOODWILL, OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICE OR CONTENT, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE (INCLUDING AS A RESULT OF ANY TERMINATION OR SUSPENSION OF GRANTEE’S ACCOUNT), OR FOR ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE HEADNOTE ENTITIES BE LIABLE FOR NEGLIGENCE, INTENTIONAL MISCONDUCT OR MISHANDLED BUSINESS BY GRANTEE UNDER ANY CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, SUCH CONDUCT BETWEEN GRANTEE AND (1) THE IRS OR ANY GOVERNMENT AGENCY; (2) ANY ACCOUNTING AUDIT SERVICE; (3) ANY EMPLOYEE OF GRANTEE; (4) ANY SUPPLIER OF GRANTEE; (5) ANY END CONSUMERS OR USERS OF GRANTEE (INCLUDING IN CONNECTION WITH REFUNDS AND CHARGEBACKS); AND (6) ANY MERCHANT SERVICES.
15.2 Limit of Liability
. IN ANY CASE, THE AGGREGATE LIABILITY OF THE HEADNOTE ENTITIES UNDER THIS AGREEMENT OR ARISING FROM OR RELATED TO THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY AND DUE FROM GRANTEE IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO ANY SUCH LIABILITY.
15.3 Legal Limitations
. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. SOLELY TO THE EXTENT SUCH LAW APPLIES TO GRANTEE, SOME OR ALL OF THE EXCLUSIONS OR LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO GRANTEE, AND GRANTEE MAY HAVE ADDITIONAL RIGHTS.
16. MUTUAL INDEMNIFICATION
16.1 Grantee Indemnification
. Grantee shall defend, indemnify and hold harmless the HEADNOTE Entities from and against any and all third-party claims, causes of action, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with (i) Grantee’s or any User’s use of the Service or collection, use, disclosure, or cross-border transfer of any Client Data; (ii) Grantee’s or any User’s use of the Service or collection, use, disclosure, or cross-border transfer of any User Data; or (iii) the breach or alleged breach by Grantee or any User(s) of any of Grantee’s obligations, representations, or warranties under this Agreement; provided in any such case, that the HEADNOTE Entity(-ies) (a) gives written notice of the claim promptly to Grantee (except that the HEADNOTE Entity’s failure to promptly notify Grantee will not limit, impair, or otherwise affect the HEADNOTE Entity’s rights under this Section 16 unless Grantee is prejudiced by that failure and then only to the extent of the prejudice); (b) gives Grantee sole control of the defense and settlement of the claim (except Grantee may not settle any claim without the HEADNOTE Entity’s prior written consent, unless the settlement includes a full and final release of all claims against the HEADNOTE Entity and does not impose any obligations on the HEADNOTE Entity); (c) provides to Grantee reasonable assistance (including reasonable access to information in the possession or control of the HEADNOTE Entity); and (d) has not compromised or settled such claim. Grantee also agree to indemnify HEADNOTE in the event of any claim brought against Headnote by HEADNOTE's Financial Institution partner, Stripe, Plaid or any of HEADNOTE's other partners.
16.2 HEADNOTE Indemnification
. HEADNOTE shall defend, indemnify and hold harmless Grantee and its parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents from and against any and all third-party claims, causes of action, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with an allegation that the Service directly infringes a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third party; provided in any such case, that Grantee (a) promptly gives written notice of the claim to HEADNOTE (except that Grantee’s failure to promptly notify HEADNOTE will not limit, impair, or otherwise affect Grantee’s rights under this Section 16 unless HEADNOTE is prejudiced by that failure and then only to the extent of the prejudice); (b) gives HEADNOTE sole control of the defense and settlement of the claim (except HEADNOTE may not settle any claim without Grantee’s consent, unless the settlement includes a full and final release of all claims against Grantee and does not impose any obligations on Grantee); (c) provides to HEADNOTE all available information and assistance; and (d) has not compromised or settled such claim. HEADNOTE shall have no indemnification obligation, and Grantee shall indemnify the HEADNOTE Entities, for claims arising from any infringement alleged to be caused by the combination of the Service with any of Grantee’s products, services, hardware, software, and/or business process.
16.3 Client Indemnification
. Client shall defend, indemnify and hold harmless the HEADNOTE Entities from and against any and all third-party claims, causes of action, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with (i) Client’s or any User’s use of the Service or collection, use, disclosure, or cross-border transfer of any Client Data; (ii) Client’s or any User’s use of the Service or collection, use, disclosure, or cross-border transfer of any User Data; or (iii) the breach or alleged breach by client or any User(s) of any of Client’s obligations, representations, or warranties under this Agreement; provided in any such case, that the HEADNOTE Entity(-ies) (a) gives written notice of the claim promptly to client (except that the HEADNOTE Entity’s failure to promptly notify Client will not limit, impair, or otherwise affect the HEADNOTE Entity’s rights under this Section 16 unless Client is prejudiced by that failure and then only to the extent of the prejudice); (b) gives Client sole control of the defense and settlement of the claim (except Client may not settle any claim without the HEADNOTE Entity’s prior written consent, unless the settlement includes a full and final release of all claims against the HEADNOTE Entity and does not impose any obligations on the HEADNOTE Entity); (c) provides to Client reasonable assistance (including reasonable access to information in the possession or control of the HEADNOTE Entity); and (d) has not compromised or settled such claim. Client also agree to indemnify HEADNOTE in the event of any claim brought against Headnote by HEADNOTE's Financial Institution partner, Stripe, Plaid or any of HEADNOTE's other partners.
17. LOCAL LAWS AND EXPORT CONTROL
The Service provided on the HEADNOTE Service site includes services and uses software and technology that may be subject to United States labor and privacy laws, as well as export controls administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. agencies and the export control regulations of the European Union. Grantee acknowledges and agrees that the Service shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States and/or the European Union maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are maintained and made available to the public by the relevant government agency, and are subject to change without notice. By using the Service, Grantee represents and warrants that Grantee is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. Grantee agrees to comply strictly with all U.S. and European Union export laws and assume sole responsibility for obtaining any necessary licenses to export or re-export. The Service provided on the site may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000. HEADNOTE and its licensors make no representation that the Service is appropriate or available for use in other locations. If Grantee uses the Service from outside the United States of America and/or the European Union, Grantee is solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Content contrary to United States or European Union (including European Union Member States) law is prohibited. None of the Content, nor any information acquired through the use of the Service, is or will be used for nuclear activities, chemical or biological weapons or missile projects, unless specifically authorized by the United States government or appropriate European body for such purposes.
HEADNOTE may give notice to Grantee by means of a general notice on the Service, electronic mail to Grantee’s e-mail address on record in HEADNOTE's account information, or by written communication sent by first class mail or pre-paid post to Grantee’s address on record in HEADNOTE's account information. Such notice shall be deemed to have been given upon the expiration of forty-eight (48) hours after mailing or posting (if sent by first class mail or pre-paid post) or twelve (12) hours after sending (if sent by email). Grantee may give notice to HEADNOTE (deemed given upon receipt by HEADNOTE) at any time by any of the following: letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to HEADNOTE at the following address: HEADNOTE, 450 Townsend Street, San Francisco, CA 94107; addressed to the attention of: Customer Service Department; or by email to firstname.lastname@example.org; or to such other location(s) as may be designated by HEADNOTE from time to time.
19. MODIFICATION TO TERMS
HEADNOTE reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service at any time effective upon posting of an updated version of this Agreement on the Service. Grantee is responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes shall constitute Grantee’s consent to such changes. Notwithstanding the foregoing, any changes to this Agreement shall not apply to any dispute between Grantee and HEADNOTE arising prior to the effective date of any such change(s).
Except as otherwise provided in this Agreement, this Agreement may not be assigned by Grantee or Client without the prior express written consent of HEADNOTE. This Agreement may be assigned without Grantee’s consent by HEADNOTE to (i) a parent or subsidiary, (ii) an acquirer of the HEADNOTE business or assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void.
21. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to its conflict of law’s provisions. Should any provision of this Agreement be declared illegal or unenforceable and cannot be modified to be enforceable, such provision shall immediately become null and void, leaving the remainder of this Agreement in full force and effect.
22. DISPUTE RESOLUTION
In the event of any dispute among the parties under this Agreement, and if the dispute cannot be settled through negotiation between the parties, such dispute shall be submitted to mediation prior to being filed within the courts of the United States in San Francisco County, California. The prevailing party shall be entitled to all attorneys fees and costs from the losing party.
23. FORCE MAJEURE
The HEADNOTE Entities will not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond such entities’ reasonable control, including, without limitation, acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.
No joint venture, partnership, employment, or agency relationship exists between Grantee, Client or any User and HEADNOTE as a result of this Agreement or use of the Service. The failure of HEADNOTE to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by HEADNOTE in writing. This Agreement, together with any applicable Order Form, comprises the entire agreement between Grantee, Client and HEADNOTE and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein. Grantee and Client consents to receiving electronic communications and notifications from HEADNOTE in connection with Grantee’s or Client’s use of the Service and this Agreement. Grantee and Client agree that any such communication will satisfy any legal communication requirements, including that such communications be in writing.
26. NOTICE FOR CALIFORNIA USERS
Under California Civil Code Section 1789.3, users of the Service from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. You may contact us at Headnote, 2225 3rd Street, San Francisco, CA 94107.
27. SOCIAL NETWORKING SERVICES
or www.headnote.com/privacy. However, please remember that the manner in which Social Networking Services use, store and disclose your information is governed solely by the policies of such third parties, and HEADNOTE shall have no liability or responsibility for the privacy practices or other actions of any third party site or service that may be enabled within the Service.
In addition, HEADNOTE is not responsible for the accuracy, availability or reliability of any information, content, goods, data, opinions, advice or statements made available in connection with Social Networking Services. As such, HEADNOTE is not liable for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Social Networking Services. HEADNOTE enables these features merely as a convenience and the integration or inclusion of such features does not imply an endorsement or recommendation.
28. THIRD PARTY WEBSITES
The Service may provide, or third parties may provide, links or other access to other sites and resources on the Internet. HEADNOTE has no control over such sites and resources and HEADNOTE is not responsible for and does not endorse such sites and resources. You further acknowledge and agree that HEADNOTE will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods or services available on or through any such site or resource. Any dealings you have with third parties found while using the Service are between you and the third party, and you agree that HEADNOTE is not liable for any loss or claim that you may have against any such third party.
29. USER CONDUCT
You are solely responsible for all code, video, images, information, data, text, software, music, sound, photographs, graphics, messages or other materials (“content”) that you upload, post, publish or display (hereinafter, “upload”) or email or otherwise use via the Service, whether as a Client, Attorney, Administrator, Legal Service Provider/Vendor. The following are examples of the kind of content and/or use that is illegal or prohibited by HEADNOTE. HEADNOTE reserves the right to investigate and take appropriate legal action against anyone who, in HEADNOTE's sole discretion, violates this provision, including without limitation, removing the offending content from the Service, suspending or terminating the account of such violators and reporting you to the law enforcement authorities. You agree to not use the Service to:
30. ELECTRONIC FUND TRANSFERS (“EFTs”) AND ACCOUNT BALANCES
- email or otherwise upload any content that (i) infringes any intellectual property or other proprietary rights of any party; (ii) you do not have a right to upload under any law or under contractual or fiduciary relationships; (iii) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (iv) poses or creates a privacy or security risk to any person; (v) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” “contests,” “sweepstakes,” or any other form of solicitation; (vi) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful racially, ethnically or otherwise objectionable; or (vii) in the sole judgment of HEADNOTE, is objectionable or which restricts or inhibits any other person from using or enjoying the Service, or which may expose HEADNOTE or its users to any harm or liability of any type;
- interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service; or
- violate any applicable local, state, national or international law, or any regulations having the force of law;
- impersonate any person or entity, or falsely state or otherwise misrepresent your credentials or your affiliation with a person or entity;
- solicit personal information from anyone under the age of 18;
- harvest or collect email addresses or other contact information of other users from the Service by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;
- advertise or offer to sell or buy any goods or services for any business purpose that is not specifically authorized;
- further or promote any criminal activity or enterprise or provide instructional information about illegal activities; or
- obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Service.
(“Fin Partner TOS”) which are incorporated herein by reference and available at https://www.svb.com/terms-use/
31. FINANCIAL INSTITUTION PARTNER DISCLAIMER
Grantee and Client agrees that: (i) HEADNOTE's Financial Institution partner is not liable for any action or inaction by HEADNOTE's or others not under the reasonable control of HEADNOTE's Financial Institution partner ; (ii) HEADNOTE's Financial Institution partner has no duty to monitor HEADNOTE's activities or to report to or inform any Customer, Merchant, Grantee or Client of HEADNOTE's financial condition, compliance with the Service Terms or compliance with Applicable Law, or otherwise; (iii) HEADNOTE's Financial Institution partner shall not be liable except in cases of HEADNOTE's Financial Institution partner’s gross negligence or willful misconduct; (iv) HEADNOTE's Financial Institution partner’s liability, if any, is limited as set forth in Section 11(a) of Master Services Agreement for Payment Processing Services entered into between Headnote and HEADNOTE's Financial Institution partner; and (v) HEADNOTE's Financial Institution partner may rely and act upon Communications relating to a Service that are Headnote Communications (or deemed Headnote Communications under Section 8(a)), without inquiry to or confirmation from the Customer, Merchant, Grantee or Client (as applicable).
32. CONFIDENTIAL INFORMATION
33.1 If Grantee is an attorney licensed to practice law in the United States, he shall have the obligation to adhere to all applicable rules of ethics for attorneys promulgated by both his state of bar admittance and the American Bar Association. Such obligation may include, but is not limited to, the duty to disclose to clients and obtain informed consent from clients regarding: (a) the fact that by making an online payment (credit, debit card or ACH bank transfer), certain information that would otherwise be confidential between attorney and client, such as the client’s identity or the fact that legal services are being performed for the client, will be disclosed in the Client Data provided to HEADNOTE and its financial service and hosting providers; (b) any pass-through by the Grantee to Clients of any transaction fees or HEADNOTE fees. HEADNOTE DISCLAIMS ALL LIABILITY REGARDING COMPLIANCE OF GRANTEE WITH APPLICABLE RULES OF ETHICS OR FAILURE OF GRANTEE TO OBTAIN ANY REQUIRED INFORMED CONSENT FROM CLIENTS.
33.2 Grantee, Client and Authorized Administrators grant to HEADNOTE a non-exclusive, royalty free right during their use of the Service, to use the Confidential Information for the sole purpose of performing HEADNOTE's obligations under the Agreement in accordance with the terms of the Agreement. Such rights shall include permission for HEADNOTE to generate and publish aggregate, anonymized reports on system usage and Content trends and type, provided they do not conflict with Section 33.3.
33.3 Each party agrees to treat all Confidential Information as confidential and not to use or disclose such Confidential Information except as necessary to perform its obligations under this Agreement.
33.4 HEADNOTE and any third party vendors, hosting, banking, payment or identity verification partners it utilizes to provide the Service shall hold Confidential Information in strict confidence and shall not use or disclose it except (a) as required to perform their obligations under this Agreement; (b) in compliance with Section 33.5 of this Agreement, or (c) as otherwise authorized by Grantee, Client or Authorized Administrator in writing.
33.5 HEADNOTE maintains that its primary duty is to protect the Confidential Information to the extent the law allows. HEADNOTE reserves the right to provide the Confidential Information to third parties as required and permitted by law (such as in response to a subpoena or court order), and to cooperate with law enforcement authorities in the investigation of any criminal or civil matter. If HEADNOTE is required by law to make any disclosure of the Confidential Information that is prohibited or otherwise constrained by this Agreement, then HEADNOTE will provide Grantee with prompt written notice (to the extent permitted by law) prior to such disclosure so that the Grantee may seek a protective order or other appropriate relief. Subject to the foregoing sentence, HEADNOTE may furnish that portion (and only that portion) of the Confidential Information that it is legally compelled or otherwise legally required to disclose.
33.6 By signing up for HEADNOTE's Service and agreeing to HEADNOTE's Terms of Service, Grantee acknowledges that they may be required to obtain informed explicit consent from their clients in order to use HEADNOTE's Service to send invoices to Clients or accept payments from Clients using HEADNOTE's Service. Thus, Grantee acknowledges that it is their duty and responsibilty to ensure their Clients understand that by using HEADNOTE's Service certain confidential information may be disclosed to HEADNOTE and that Client consents to these disclosures.
33. PAYMENT TERMS AND CONDITIONS
By clicking the “Payment Terms and Conditions” checkbox when initiating a payment using HEADNOTE's Services, the Client or Grantee agrees and acknowledges that they are agreeing to allow Headnote to facilitate a payment as requested to the Grantee, and that payment will be made by the method selected and only for the amount authorized by the Client. By agreeing to Payment Terms and Conditions, Client also acknowledges and agrees to all of the above terms or service and conditions which constitute a legally enforceable SaaS agreement governing Client’s use of the service. Any dispute by Client about the services described when payment is requested should be brought up directly with Grantee and HEADNOTE is not liable for the performance, non-performance or outcome of any of the services described therein. Client agrees to indemnify and hold harmless HEADNOTE from any and all claims arising from the representation of Client by Grantee, any claim brought by Grantee against Client, or any 3rd party claim brought against Client, Grantee or HEADNOTE.
34. EMAIL, PHONE AND SMS TEXT COMMUNICATION OPT IN
Grantee acknowledges and agrees that by registering for HEADNOTE's platform and Services, HEADNOTE may contact Grantee via email SMS text or phone call to the phone number provided upon registration, and Grantee agrees to pay all 3rd party fees (wireless provider, etc.) associated with such contact.
Grantee acknowledges and agrees that Headnote may send emails (invoices, receipts, marketing materials and follow up messages regarding the status of invoices including but not limited to “Automated Collections”, “Payment Reminders”, “Auto-Reminders” or “Reminders”) to Client on Grantee’s behalf regarding the status of or need for payment for pending, overdue or paid invoices sent over HEADNOTE or using HEADNOTE's Services. Such automated messages will be sent automatically to Client on Grantee’s behalf by HEADNOTE's automated system. Grantee may opt out of these automated messages by emailing email@example.com
or calling (888) 384-3236. Grantee further acknowledges and agrees that Headnote may communicate with Client as necessary to direct Client questions to Grantee or to assist Client in questions or discussions relating to payments or the process required therein to make a payment using HEADNOTE's Services.
BY SIGNING UP AND USING HEADNOTE.COM’S SOFTWARE AS A SERVICE OR INITIATING A PAYMENT USING HEADNOTE's SERVICES, YOU AGREE TO THE ABOVE TERMS AND CONDITIONS WHICH CONSTITUTE A LEGALLY ENFORCEABLE SaaS AGREEMENT GOVERNING GRANTEE’S OR CLIENT’S USE OF THE SERVICE.
ALL NOTIFICATION TELEPHONE NUMBERS AND ADDRESSES, AS SET FORTH ABOVE, MAY BE CHANGED BY HEADNOTE FROM TIME TO TIME, WHICH CHANGES SHALL BE POSTED ON HEADNOTE's WEBSITE.
Questions? Concerns? Suggestions?
Please contact us at firstname.lastname@example.org to report any violations of these Terms of Service or to pose any questions regarding this Terms of Service or the Service.