These Customer Terms of Service (the “
Customer Terms”) describe your rights and responsibilities
when using our online business process management tools and platform (the “
Services”). Please read
them carefully. If you are a Customer (defined below), these Customer Terms govern your access and use of our
Services. If you are being invited to a workspace set up by a Customer, the
User Terms ofService (the “
User Terms”) govern your access and use of the Services.
Introduction
These “Customer Terms” Form a Part of a Binding “Contract”
These Customer Terms (or, if applicable, your written agreement with us) and any Order Form(s) (defined below)
together form a binding “
Contract” between Customer and us. If any terms in the Customer-Specific
Supplement apply to Customer (e.g., if Customer is a U.S. government entity), those terms are also incorporated
herein by reference and form part of the Contract. “We,” “our” and “us” refers to the applicable Tallyfy entity in
the section entitled “Which Tallyfy Entity is Customer Contracting With?” below.
Your Agreement On Behalf of “Customer”
If you purchase subscription(s), create a workspace (i.e., a digital space where a group of users may access the
Services, invite users to that workspace, or use or allow use of that workspace after being notified of a change to
these Customer Terms, you acknowledge your understanding of the then-current Contract and agree to the Contract on
behalf of Customer. Please make sure you have the necessary authority to enter into the Contract on behalf of
Customer before proceeding.
Customer Choices and Instructions
Who is “Customer”?
“Customer” is the single organization that you represent in agreeing to the Contract. If your workspace is being set
up by someone who is not formally affiliated with an organization, Customer is the individual creating the
workspace. For example, if you signed up using a personal email address and invited a couple of friends to work on a
new startup idea but haven’t formed a company yet, you are the Customer.
Signing Up Using a Corporate Email Domain
If you signed up for a plan using your corporate email domain, your organization is Customer, and Customer can modify
and re-assign roles on your workspace (including your role) and otherwise exercise its rights under the Contract. If
Customer elects to replace you as the representative with ultimate authority for the workspace, we will provide you
with notice following such election and you agree to take any actions reasonably requested by us or Customer to
facilitate the transfer of authority to a new representative of Customer.
What This Means for Customer and for Us
Individuals authorized by Customer to access the Services (an “
Authorized User”) may submit content
or information to the Services, such as tasks, messages or files (“
Customer Data”), and Customer
may exclusively provide us with instructions on what to do with it. For example, Customer may provision or
deprovision access to the Services, enable or disable third party integrations, manage permissions, retention and
export settings, transfer or assign workspaces, share content, or consolidate workspaces with other workspaces.
Since these choices and instructions may result in the access, use, disclosure, modification or deletion of certain
or all Customer Data, please contact us for more information about these choices and instructions.
Customer will (a) inform Authorized Users of all Customer policies and practices that are relevant to their use of
the Services and of any settings that may impact the processing of Customer Data; and (b) ensure the transfer and
processing of Customer Data under the Contract is lawful.
Ordering Subscriptions
A subscription allows an Authorized User to access the Services. No matter the role, a subscription is required for
each Authorized User. A subscription may be procured through the Services interface, or in some cases, via an order
form entered into between Customer and us (each, an “
Order Form”). Each Authorized User must agree
to the User Terms to activate their subscription. Subscriptions commence when we make them available to Customer and
continue for the term specified in the Services “check-out” interface or in the Order Form, as applicable. Each
subscription is for a single Authorized User for a specified term and is personal to that Authorized User. We
sometimes enter into other kinds of ordering arrangements, but that would need to be spelled out and agreed to in an
Order Form. During an active subscription term, adding more subscriptions is fairly easy. Unless the Order Form says
otherwise, Customer may purchase more subscriptions or add-ons in the Order Form and all will terminate on the same
date.
Purchasing Decisions
We may share information about our future product plans. Our public statements about those product plans are an
expression of intent, but do not rely on them when making a purchase. If Customer decides to buy our Services, that
decision should be based on the functionality or features we have made available today and not on the delivery of
any future functionality or features.
Choosing to be a Beta Tester
Occasionally, we look for beta testers to help us test our new features or to test new third-party integrations to
Tallyfy. These features will be identified as “beta” or “pre-release,” or words or phrases with similar meanings
(each, a “
Beta Product”). Beta Products may not be ready for prime time so they are made available
“as is,” and any warranties or contractual commitments we make for other Services do not apply. Should Customer
encounter any faults with our Beta Products, we would love to hear about them; our primary reason for running any
beta programs is to iron out issues before making a new feature widely available.
Feedback is Welcome
The more suggestions our customers make, the better the Services become. If Customer sends us any feedback or
suggestions regarding the Services, there is a chance we will use it, so Customer grants us (for itself and all of
its Authorized Users and other Customer personnel) an unlimited, irrevocable, perpetual, sublicensable,
transferable, royalty-free license to use any such feedback or suggestions for any purpose without any obligation or
compensation to Customer, any Authorized User or other Customer personnel. If we choose not to implement the
suggestion, please don’t take it personally.
Non-Tallyfy Products
Our Services include a platform that third parties may use to develop applications and software that complement
Customer’s use of the Services (each, a “
Non-Tallyfy Product”). We also maintain an internal
directory called the Tallyfy Integrations Directory where some Non-Tallyfy Products are available for installation.
THESE ARE NOT OUR SERVICES, SO WE DO NOT WARRANT OR SUPPORT NON-TALLYFY PRODUCTS, AND, ULTIMATELY, CUSTOMER (AND NOT
US) WILL DECIDE WHETHER OR NOT TO ENABLE THEM. ANY USE OF A NON-TALLYFY PRODUCT IS SOLELY BETWEEN CUSTOMER AND THE
APPLICABLE THIRD PARTY PROVIDER.
If a Non-Tallyfy Product is enabled for Customer’s workspace, please be mindful of any Customer Data that will be
shared with the third party provider and the purposes for which the provider requires access. We will not be
responsible for any use, disclosure, modification or deletion of Customer Data that is transmitted to, or accessed
by, a Non-Tallyfy Product.
Privacy Policy
Please review our
Privacy Policy for more information on how we collect and use
data relating to the use and performance of our websites and products.
Customer and Authorized Users
Use of the Services
Customer must comply with the Contract and ensure that its Authorized Users comply with the Contract and the User
Terms. We may review conduct for compliance purposes, but we have no obligation to do so. We aren’t responsible for
the content of any Customer Data or the way Customer or its Authorized Users choose to use the Services to store or
process any Customer Data. The Services are not intended for and should not be used by anyone under the age of 16.
Customer must ensure that all Authorized Users are over 16 years old. Customer is solely responsible for providing
high speed internet service for itself and its Authorized Users to access and use the Services.
Our Removal Rights
If we believe that there is a violation of the Contract that can simply be remedied by Customer’s removal of certain
Customer Data or Customer’s disabling of a Non-Tallyfy Product, we will, in most cases, ask Customer to take direct
action rather than intervene. However, we may directly step in and take what we determine to be appropriate action,
if Customer does not take appropriate action, or if we believe there is a credible risk of harm to us, the Services,
Authorized Users, or any third parties.
Payment Obligations
Payment Terms
For Customers that purchase our Services, fees are specified at the Services interface “check-out” and in the Order
Form(s) — and must be paid in advance. Payment obligations are non-cancelable and, except as expressly stated in the
Contract, fees paid are non-refundable. For clarity, in the event Customer downgrades any subscriptions from a paid
plan to a read-only plan, Customer will remain responsible for any unpaid fees under the paid plan, and Services
under the paid plan will be deemed fully performed and delivered upon expiration of the initial paid plan
subscription term. If we agree to invoice Customer by email, full payment must be received within thirty (30) days
from the invoice date. Fees are stated exclusive of any taxes, levies, duties, or similar governmental assessments
of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction
(collectively, “
Taxes”). Customer will be responsible for paying all Taxes associated with its
purchases, except for those taxes based on our net income. Should any payment for the Services be subject to
withholding tax by any government, Customer will reimburse us for such withholding tax.
Credits
Any credits that may accrue to Customer’s account (for example, from a promotion or application), will expire
following expiration or termination of the applicable Contract, will have no currency or exchange value, and will
not be transferable or refundable. Credits accrued to a workspace on a free trial subscription plan will expire if
the workspace’s plan is not upgraded to a paid plan within ninety (90) days of accrual, unless otherwise specified.
Downgrade for Non-Payment
If any fees owed to us by Customer (excluding amounts disputed reasonably and in good faith) are thirty (30) days or
more overdue, we may, without limiting our other rights and remedies, downgrade any fee-based Services to read-only
plans until those amounts are paid in full, so long as we have given Customer ten (10) or more days’ prior notice
that its account is overdue. Notwithstanding the second paragraph of the “Providing the Services” section below,
Customer acknowledges and agrees that a downgrade will result in a decrease in certain features and functionality
and potential loss of access to Customer Data, as illustrated by the
Pricing page.
\
Our Responsibilities
Providing the Services
We will (a) make the Services available to Customer and its Authorized Users as described in the Contract; and (b)
not use or process Customer Data for any purpose without Customer’s prior written instructions; provided, however,
that “prior written instructions” will be deemed to include use of the Services by Authorized Users and any
processing related to such use or otherwise necessary for the performance of the Contract.
Be assured that (a) the Services will perform materially in accordance with our then-current
support pages; and (b) subject to the “Non-Tallyfy Products” and
“Downgrade for Non-Payment” sections, we will not materially decrease the functionality of a Service during a
subscription term. For any breach of a warranty in this section, Customer’s exclusive remedies are those described
in the sections titled “Termination for Cause” and “Effect of Termination”.
Keeping the Services Available
For some of our Services, we also offer specific uptime commitments paired with credits, if we fall short. In those
cases, the credits will serve as liquidated damages and will be Customer’s sole remedy for the downtime and related
inconvenience. For all Service plans, we will use commercially reasonable efforts to make the Services available 24
hours a day, 7 days a week, excluding planned downtime. We expect planned downtime to be infrequent but will
endeavor to provide Customer with advance notice (e.g., through the Services), if we think it may exceed five (5)
continuous minutes.
Protecting Customer Data
The protection of Customer Data is a top priority for us so we will maintain administrative, physical, and technical
safeguards at a level not materially less protective than as described in our
Security page. Those safeguards will include measures for preventing
unauthorized access, use, modification, deletion and disclosure of Customer Data by our personnel. Before sharing
Customer Data with any of our third party service providers, we will ensure that the third party maintains, at a
minimum, reasonable data practices for maintaining the confidentiality and security of Customer Data and preventing
unauthorized access. Customer (not us) bears sole responsibility for adequate security, protection and backup of
Customer Data when in Customer’s or its representatives’ or agents’ possession or control. We are not responsible
for what Customer’s Authorized Users or Non-Tallyfy Products do with Customer Data. That is Customer’s
responsibility.
Note – If you are using Tallyfy and have agreed to our terms of service, you do not need to sign an additional
Data Processing Addendum with relation to GDPR, as it is incorporated herein by reference.
If you are a paying subscriber to the Service, to the extent that Tallyfy processes any Personal Information (as
defined in the DPA) contained in User Content that is subject to the GDPR (as defined in the DPA), on your behalf,
in the provision of the Service, the terms of the data processing addendum at https://tallyfy.com/legal/dpa/
(“DPA”), which are hereby incorporated by reference, shall apply and the parties agree to comply with such terms.
For the purposes of the Standard Contractual Clauses attached to the DPA, when you are the data exporter, your
agreeing to these Terms of Service shall be treated as signing of the DPA, including, without limitation, the
Standard Contractual Clauses and their Appendices.
The Tallyfy Extended Family
We may leverage our employees, those of our corporate affiliates, third party contractors and Tallyfy Ambassadors
(the “
Tallyfy Extended Family”) in exercising our rights and performing our obligations under the
Contract. We will be responsible for the Tallyfy Extended Family’s compliance with our obligations under the
Contract.
Ownership and Proprietary Rights
As between us on the one hand, and Customer and any Authorized Users on the other, Customer will own all Customer
Data. Subject to the terms and conditions of the Contract, Customer (for itself and all of its Authorized Users)
grants us and the Tallyfy Extended Family a worldwide, non-exclusive, limited term license to access, use, process,
copy, distribute, perform, export and display Customer Data, and any Non-Tallyfy Products created by or for
Customer, only as reasonably necessary (a) to provide, maintain and update the Services; (b) to prevent or address
service, security, support or technical issues; (c) as required by law; and (d) as expressly permitted in writing by
Customer. Customer represents and warrants that it has secured all rights in and to Customer Data from its
Authorized Users as may be necessary to grant this license.
Our Rights
We own and will continue to own our Services, including all related intellectual property rights. We may make
software components available, via app stores or other channels, as part of the Services. We grant to Customer a
non-sublicensable, non-transferable, non-exclusive, limited license for Customer and its Authorized Users to use the
object code version of these components, but solely as necessary to use the Services and in accordance with the
Contract and the User Terms. All of our rights not expressly granted by this license are hereby retained.
Term and Termination
Pricing Changes
We are evolving quickly, as a company – and reserve the right to change pricing during any given billing term.
Contract Term
As further described below, a free trial subscription continues until the trial expires, while a paid subscription
has a term that may expire or be terminated. The Contract remains effective until all subscriptions ordered under
the Contract have expired or been terminated or the Contract itself terminates. Termination of the Contract will
terminate all subscriptions and all Order Forms.
Auto-Renewal
Unless an Order Form says something different, (a) all subscriptions automatically renew (without the need to go
through the Services-interface “check-out” or execute a renewal Order Form) for additional periods equal to one (1)
year or the preceding term, whichever is shorter; and (b) the per-unit pricing during any automatic renewal term
will be at the prevailing pricing rates (which are subject to change) from the prior term. Either party can give the
other notice of non-renewal at least thirty (30) days before the end of a subscription term to stop the
subscriptions from automatically renewing.
Termination for Cause
We or Customer may terminate the Contract on notice to the other party if the other party materially breaches the
Contract and such breach is not cured within thirty (30) days after the non-breaching party provides notice of the
breach. Customer is responsible for its Authorized Users, including for any breaches of this Contract caused by its
Authorized Users. We may terminate the Contract immediately on notice to Customer if we reasonably believe that the
Services are being used by Customer or its Authorized Users in violation of applicable law.
Termination Without Cause
Customer may terminate its free trial subscriptions immediately without cause. We may also terminate Customer’s free
trial subscriptions without cause.
Effect of Termination
Upon any termination for cause by Customer, we will refund Customer any prepaid fees covering the remainder of the
term of all subscriptions after the effective date of termination. Upon any termination for cause by us, Customer
will pay any unpaid fees covering the remainder of the term of those subscriptions after the effective date of
termination. In no event will any termination relieve Customer of the obligation to pay any fees payable to us for
the period prior to the effective date of termination.
Data Portability and Deletion
We are custodians of Customer Data. During the term of a workspace’s subscriptions, Customer will be permitted to
export or share certain Customer Data from the Services; provided, however, that because we have different products
with varying features and Customer has different retention options, Customer acknowledges and agrees that the
ability to export or share Customer Data may be limited or unavailable depending on the type of Services plan in
effect and the data retention, sharing or invite settings enabled. Following termination or expiration of a
workspace’s subscriptions, we will have no obligation to maintain or provide any Customer Data and may thereafter,
unless legally prohibited, delete all Customer Data in our systems or otherwise in our possession or under our
control. In addition – we reserve the right to automatically delete Customer accounts that have not had any usage
from any member for over 60 days. Upon deletion – any pricing coupons or incentives in effect will also be
terminated.
Representations Disclaimer of Warranties
Customer represents and warrants that it has validly entered into the Contract and has the legal power to do so.
Customer further represents and warrants that it is responsible for the conduct of its Authorized Users and their
compliance with the terms of this Contract and the User Terms.
EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, THE SERVICES AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN
“AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND WE EXPRESSLY DISCLAIM ANY AND ALL
WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A
PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CUSTOMER ACKNOWLEDGES THAT WE DO NOT WARRANT THAT THE SERVICES WILL BE
UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE.
Limitation of Liability
OTHER THAN IN CONNECTION WITH A PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT WILL EITHER CUSTOMER’S OR
THE TALLYFY EXTENDED FAMILY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE CONTRACT OR THE USER TERMS
(WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER
HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE LAST EVENT GIVING RISE TO LIABILITY. THE FOREGOING WILL NOT LIMIT
CUSTOMER’S PAYMENT OBLIGATIONS UNDER THE “PAYMENT TERMS” SECTION ABOVE.
IN NO EVENT WILL EITHER CUSTOMER OR ANY MEMBER OF THE TALLYFY EXTENDED FAMILY HAVE ANY LIABILITY TO THE OTHER PARTY
OR TO ANY THIRD PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL,
COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND
WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT
APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
The Services support logins using two-factor authentication (“
2FA”), which is known to reduce the
risk of unauthorized use of or access to the Services. We therefore will not be responsible for any damages, losses
or liability to Customer, Authorized Users, or anyone else if any event leading to such damages, losses or liability
would have been prevented by the use of 2FA. Additionally, Customer is responsible for all login credentials,
including usernames and passwords, for administrator accounts as well the accounts of your Authorized Users. We will
not be responsible for any damages, losses or liability to Customer, Authorized Users, or anyone else, if such
information is not kept confidential by Customer or its Authorized Users, or if such information is correctly
provided by an unauthorized third party logging into and accessing the Services.
The limitations under this “Limitation of Liability” section apply with respect to all legal theories, whether in
contract, tort or otherwise, and to the extent permitted by law. The provisions of this “Limitation of Liability”
section allocate the risks under this Contract between the parties, and the parties have relied on these limitations
in determining whether to enter into this Contract and the pricing for the Services.
For the sake of clarity – Tallyfy is in no way liable for PII, sensitive data or any material that’s entered into the system, by any means.
PII, or personally identifiable information, could include social security numbers, credit scores, credit card and payment info, birth dates, health information, etc.
Our Indemnification of Customer
We may defend Customer from and against any and all third party claims, actions, suits, proceedings, and demands
alleging that the use of the Services as permitted under the Contract infringes or misappropriates a third party’s
intellectual property rights (a “
Claim Against Customer”), and may indemnify Customer for all
reasonable attorney’s fees incurred and damages and other costs finally awarded against Customer in connection with
or as a result of, and for amounts paid by Customer under a settlement we approve of in connection with, a Claim
Against Customer; provided, however, that we will have no liability if a Claim Against Customer arises from (a)
Customer Data or Non-Tallyfy Products; and (b) any modification, combination or development of the Services that is
not performed by us, including in the use of any application programming interface (API). Customer must provide us
with prompt written notice of any Claim Against Customer and allow us the right to assume the defense and control,
and cooperate with any reasonable requests assisting our defense and settlement of such matter. This section states
our sole liability with respect to, and Customer’s exclusive remedy against us and the Tallyfy Extended Family for,
any Claim Against Customer.
Customer’s Indemnification of Us
Customer will defend Tallyfy and the members of the Tallyfy Extended Family (collectively, the “
Tallyfy
Indemnified Parties”) from and against any and all third party claims, actions, suits, proceedings, and
demands arising from or related to Customer’s or any of its Authorized Users’ violation of the Contract or the User
Terms (a “
Claim Against Us”), and will indemnify the Tallyfy Indemnified Parties for all reasonable
attorney’s fees incurred and damages and other costs finally awarded against a Tallyfy Indemnified Party in
connection with or as a result of, and for amounts paid by a Tallyfy Indemnified Party under a settlement Customer
approves of in connection with, a Claim Against Us. We must provide Customer with prompt written notice of any Claim
Against Us and allow Customer the right to assume the exclusive defense and control, and cooperate with any
reasonable requests assisting Customer’s defense and settlement of such matter. This section states your sole
liability with respect to, and the Tallyfy Indemnified Parties’ exclusive remedy against Customer for, any Claim
Against Us.
Limitations on Indemnifications
Notwithstanding anything contained in the two preceding sections, (a) an indemnified party will always be free to
choose its own counsel if it pays for the cost of such counsel; and (b) no settlement may be entered into by an
indemnifying party, without the express written consent of the indemnified parties (such consent not to be
unreasonably withheld), if (i) the third party asserting the claim is a government agency, (ii) the settlement
arguably involves the making of admissions by the indemnified parties, (iii) the settlement does not include a full
release of liability for the indemnified parties, or (iv) the settlement includes terms other than a full release of
liability for the indemnified parties and the payment of money.
Confidentiality
Confidential Information
Each party (“
Disclosing Party”) may disclose “
Confidential Information” to the
other party (“
Receiving Party”) in connection with the Contract, which is anything that reasonably
should be understood to be confidential given the nature of the information and the circumstances of disclosure
including all Order Forms, as well as non-public business, product, technology and marketing information.
Confidential Information of Customer includes Customer Data. If something is labeled “Confidential,” that’s a clear
indicator to the Receiving Party that the material is confidential. Notwithstanding the above, Confidential
Information does not include information that (a) is or becomes generally available to the public without breach of
any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the
Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party
without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving
Party.
Protection and Use of Confidential Information
The Receiving Party will (a) take at least reasonable measures to prevent the unauthorized disclosure or use of
Confidential Information, and limit access to those employees, affiliates and contractors who need to know such
information in connection with the Contract ; and (b) not use or disclose any Confidential Information of the
Disclosing Party for any purpose outside the scope of this Contract. Nothing above will prevent either party from
sharing Confidential Information with financial and legal advisors; provided, however, that the advisors are bound
to confidentiality obligations at least as restrictive as those in the Contract.
Compelled Access or Disclosure
The Receiving Party may access or disclose Confidential Information of the Disclosing Party if it is required by law;
provided, however, that the Receiving Party gives the Disclosing Party prior notice of the compelled access or
disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the
Disclosing Party wishes to contest the access or disclosure. If the Receiving Party is compelled by law to access or
disclose the Disclosing Party’s Confidential Information, the Disclosing Party will reimburse the Receiving Party
for its reasonable cost of compiling and providing access to such Confidential Information as well as the reasonable
cost for any support provided in connection with the Disclosing Party seeking a protective order or confidential
treatment for the Confidential Information to be produced.
Survival
All relevant sections (unless stated otherwise) as well as all of the provisions under the general heading “General
Provisions,” will survive any termination or expiration of the Contract.
General Provisions
Publicity
Customer grants us the right to use Customer’s company name and logo as a reference for marketing or promotional
purposes on our website and in other public or private communications with our existing or potential customers,
subject to Customer’s standard trademark usage guidelines as provided to us from time-to-time. We don’t want to list
customers who don’t want to be listed, so Customer may send us an email to hey@tallyfy.com stating that it
does not wish to be used as a reference.
Force Majeure
Neither us nor Customer will be liable by reason of any failure or delay in the performance of its obligations on
account of events beyond the reasonable control of a party, which may include denial-of-service attacks, botnets, a
failure by a third party hosting provider or utility provider, strikes, shortages, riots, fires, acts of God, war,
terrorism, and governmental action.
Relationship of the Parties; No Third Party Beneficiaries
The parties are independent contractors. The Contract does not create a partnership, franchise, joint venture,
agency, fiduciary or employment relationship between the parties. There are no third party beneficiaries to the
Contract.
Email and Tallyfy Messages
Except as otherwise set forth herein, all notices under the Contract will be by email, although we may instead choose
to provide notice to Customer through the Services. Notices to Tallyfy will be sent to support at-sign tallyfy.com. Notices will be deemed to have been duly given (a)
the day after it is sent, in the case of notices through email; and (b) the same day, in the case of notices through
the Services.
Modifications
As our business evolves, we may change these Customer Terms and the other components of the Contract (except any
Order Forms). If we make a material change to the Contract, we will provide Customer with reasonable notice prior to
the change taking effect, either by emailing the email address associated with Customer’s account or by messaging
Customer through the Services. Customer can review the most current version of the Customer Terms at any time by
visiting this page and by visiting the most current versions of the other pages that are referenced in the Contract.
The materially revised Contract will become effective on the date set forth in our notice, and all other changes
will become effective upon posting of the change. If Customer (or any Authorized User) accesses or uses the Services
after the effective date, that use will constitute Customer’s acceptance of any revised terms and conditions. In all
cases where not specified, the effective date will be January 1, 2018.
Waiver
No failure or delay by either party in exercising any right under the Contract will constitute a waiver of that
right. No waiver under the Contract will be effective unless made in writing and signed by an authorized
representative of the party being deemed to have granted the waiver.
Severability
The Contract will be enforced to the fullest extent permitted under applicable law. If any provision of the Contract
is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and
interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by
law, and the remaining provisions of the Contract will remain in effect.
Assignment
Except with respect to the Tallyfy Extended Family, neither party may assign or delegate any of its rights or
obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other
party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign the Contract in its
entirety (including all Order Forms), without consent of the other party, to a corporate affiliate or in connection
with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Customer
will keep its billing and contact information current at all times by notifying Tallyfy of any changes. Any
purported assignment in violation of this section is void. A party’s sole remedy for any purported assignment by the
other party in breach of this section will be, at the non-assigning party’s election, termination of the Contract
upon written notice to the assigning party. In the event of such a termination by Customer, we will refund Customer
any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination.
Subject to the foregoing, the Contract will bind and inure to the benefit of the parties, their respective
successors and permitted assigns.
Which Tallyfy Entity is Customer Contracting With?
All references to ‘Tallyfy,’ ‘we,’ or ‘us’ under the Contract, what law will apply in any dispute or lawsuit arising
out of or in connection with the Contract, and which courts have jurisdiction over any such dispute or lawsuit,
depend on where Customer is domiciled.
| Domicile | Tallyfy Contracting Entity | Governing Law | Venue |
| Worldwide | Tallyfy, Inc. | Missouri | St. Louis City, MO |
The Contract, and any disputes arising out of or related hereto, will be governed exclusively by the applicable
governing law above, without regard to conflicts of laws rules or the United Nations Convention on the International
Sale of Goods. The courts located in the applicable venue above will have exclusive jurisdiction to adjudicate any
dispute arising out of or relating to the Contract or its formation, interpretation or enforcement. Each party
hereby consents and submits to the exclusive jurisdiction of such courts.
Each party also hereby waives any
right to jury trial in connection with any action or litigation in any way arising out of or related to the
Contract. In any action or proceeding to enforce rights under the Contract, the prevailing party will
be entitled to recover its reasonable costs and attorney’s fees.
Entire Agreement
The Contract, including these Customer Terms and all referenced pages and Order Forms, if applicable, constitutes the
entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or
representations, written or oral, concerning its subject matter. Without limiting the foregoing, the Contract
supersedes the terms of any online agreement electronically accepted by Customer or any Authorized Users. However,
to the extent of any conflict or inconsistency between the provisions in these Customer Terms and any other
documents or pages referenced in these Customer Terms, the following order of precedence will apply: (1) the terms
of any Order Form (if any), (2) the portions of the Customer-Specific Supplement that apply to Customer (if any),
(3) the Customer Terms and (4) finally any other documents or pages referenced in the Terms. Notwithstanding any
language to the contrary therein, no terms or conditions stated in a Customer purchase order, vendor onboarding
process or web portal, or any other Customer order documentation (excluding Order Forms) will be incorporated into
or form any part of the Contract, and all such terms or conditions will be null and void.
Customer Specific Supplement
The terms of the Customer-Specific Supplement (
“Customer-Specific Supplement”) below supplement and
amend Customer’s Contract as defined within Customer Terms of Service, if Customer falls into the corresponding
category of Customer. If there is any conflict between the Customer-Specific Supplement and the Contract, the
applicable terms in the Customer-Specific Supplement will prevail. Nothing in this Customer-Specific Supplement
makes us a government contractor for any federal, state, local, or foreign government.
- U.S. Government Customers
- State or Local Government Customers
- Healthcare Customers
- Education Professional Customers
- Patent Assertion Entities
I. U.S. Government Customers
If Customer is a U.S. government or U.S. public entity (or use of the Services is for the U.S. Government), the
terms of the Customer-Specific Supplement in this Section I apply.
- A. Use By or For the U.S. Government. The Services are a “commercial item,” as defined at 48
C.F.R. §2.101, and constitute “commercial computer software” and “commercial computer software documentation,”
as used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202 to §227.7204. This commercial computer software and related
Documentation is provided to end users for use, by and on behalf of the U.S. Government, with only those rights
as are granted to all other end users pursuant to the terms and conditions herein.
- B. Indemnification, Auto-Renewal, Venue, Legal Fees: The sections in the Contract titled
“Governing Law,” “Auto-renewal,” “Venue; Waiver of Jury Trial; Fees,” and “Customer’s Indemnification of Us” are
hereby waived to the extent they are inconsistent with federal law.
- C. No Endorsement: We agree that Customer’s seals, trademarks, logos, service marks, trade
names, and the fact that Customer has a presence on one of our Sites and uses our Services, will not be used by
us in such a manner as to state or imply that our products or services are endorsed, sponsored or recommended by
Customer or by any other element of the U.S. Government, or are considered by Customer or the U.S. Government to
be superior to any other products or services. Except for pages whose design and content is under the control of
the Customer, or for links to or promotion of such pages, we agree not to display any Customer or government
seals, trademarks, logos, service marks, and trade names on our homepage or elsewhere on one of our hosted sites
unless permission to do so has been granted by Customer or by other relevant federal government authority. We
may list Customer’s name in a publicly available customer list on a Site or elsewhere so long as the name is not
displayed in a more prominent fashion than that of any other third party name.
II. State or Local Government Customers
This Section II applies to Customer if Customer is a state or local government, but only to the extent the Services
are being used in an Authorized User’s official capacity as a state or local government official. The sections in
the Contract titled “Governing Law,” “Venue; Waiver of Jury Trial; Fees,” and “Customer’s Indemnification of Us”
will not apply to Customer only to the extent Customer’s jurisdiction’s laws prohibit Customer from accepting the
requirements in those sections.
III. Healthcare Customers
Unless Customer has entered into a written agreement with Tallyfy to the contrary, Customer acknowledges that
Tallyfy is not a “Business Associate” as defined in the Health Insurance Portability and Accountability Act and
related amendments and regulations as updated or replaced (
“HIPAA”), and that the Services are not
HIPAA compliant. Customer must not use, disclose, transmit or otherwise process any “Protected Health Information”
as defined in HIPAA (
“PHI”) through the Services. Customer agrees that we cannot support and have
no liability for PHI received from Customer, notwithstanding anything to the contrary herein.
IV. Education Professional Customers
If Customer is a school or educator in the United States and wants its students, who are over the age of 13, to use
the Services, Customer is responsible for complying with the U.S. Family Educational Rights and Privacy Act
(
“FERPA”). This means Customer must notify those students’ parents/guardians of the personally
identifiable information that it will collect and share with us and obtain parental/guardian consent before its
students sign up or use the Services. When obtaining such consent, Customer should provide parents/guardians with a
copy of our
Privacy Policy. Customer must keep all consents on file and provide them to
us if we request them. If Customer is located outside of the United States, we will rely upon Customer to obtain any
required consents or approvals from the parent or guardian of any student covered by similar laws and, as a
condition to Customer’s and its students’ use of the Services, Customer will comply with such laws.
V. Patent Assertion Entities
You agree that if Customer is a Patent Assertion Entity or is acting on behalf of, or for the benefit of a Patent
Assertion Entity, Customer will not assert, or authorize, assist, encourage, or enable any third party to assert,
any claim, or pursue any actions, suits, proceedings, or demands, against Tallyfy or its affiliates that allege that
the Services infringe, misappropriate, or otherwise violate any intellectual property rights (including patents). A
“Patent Assertion Entity,” sometimes referred to as a ‘non-practicing entity’ or a ‘patent troll,’
is (a) any entity that derives or seeks to derive most of its revenue from the offensive assertion of patent rights,
or (b) directly or indirectly controls, is controlled by, or is under common control with an entity described in
(a). This section will survive any termination or expiration of the Contract.
Contacting Tallyfy
Please also feel free to contact us if you have any questions.
You may email us at support at-sign tallyfy.com or at our mailing address
below:
Tallyfy, Inc.911 Washington Avenue, Suite 500
St Louis, MO 63101
United States