1. PRIVACY & SECURITY
Curogram shall abide by all applicable privacy laws in connection with the operation of the Application, including but not limited to HIPAA regulations. Curogram’s IT security and compliance program includes the following industry standards generally adopted by U.S. based SaaS providers: (i) reasonable and appropriate technical, organizational and security measures against the destruction, loss, unavailability, unauthorized access or alteration of Client Data in the possession or under the control of Curogram, including to ensure the availability of information following interruption to, or failure of, critical business processes; and (ii) a third party audit of its security controls. This Agreement is subject to your acceptance of the terms and conditions set forth in Curogram’s Privacy Policy, located at https://curogram.com/privacy. The terms and conditions set forth in the Privacy Policy may be changed by Curogram in its sole discretion and those changes become effective within thirty (30) days following posting or immediately following Curogram providing you with an in-Application alert the first time you use the Application after we make the change. It is your responsibility to review the Privacy Policy for revisions thereto. Privacy Policy will always have an effective date stated within the policy so that you know when it has been updated last.
You agree to abide by all applicable privacy laws in connection with your use of the Application, including but not limited to HIPAA, HITECH, and Gramm-Leach-Bliley, as applicable. To the extent you are deemed a Business Associate of Curogram, you agree to execute a separate Business Associate Agreement with Curogram located at https://curogram.com/baa.
2. COLLECTION AND USE OF YOUR INFORMATION
You acknowledge that when you download, install or use the Application, Curogram may use automatic means (including, for example, cookies and web beacons) to collect information about your desktop computer, mobile device, and about your use of the Application. You also may be required to provide certain information about yourself as a condition to downloading, installing or using the Application or certain of its features or functionality, and the Application provide you with opportunities to share information about yourself with others. All information we collect through or in connection with this Application is subject to our Privacy Policy, as referred above. By downloading, installing, using and providing information to or through the Application, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy. You may provide information to be shared with other users of the Service you are using or another Service. (We cannot control the actions of third parties with whom you may choose to share your User Messages. Therefore, we cannot and do not guarantee that your User Messages will not be viewed by unauthorized persons. We offer enterprise versions of the Application for businesses and other entities (each an “Entity Purchaser”). The employees, contractors, or other agents affiliated with that Entity Purchaser (each, an “Entity User”) may obtain a version of the Application through the Entity Purchaser. If your User Messages are sent to an Entity User, the Entity Purchaser will be able to view certain information, including all communications between you and that Entity User, and all data associated with those communications, such as your name, the time and date of each communication, and whether each communication was a text message, image transfer, audio file, video file, or phone call. Likewise, if you are an Entity User, your affiliated Entity Purchaser will be able to view certain information, including all communications between you and other users of the Application, and all data associated with those communications, such as the name of the individuals you communicate with, the time and date of each communication, and whether each communication was a text message, image transfer, audio file, video file, or phone call. Entity Purchasers may access and view the content of such communications with Entity Users if you use Curogram. By communicating as an Entity User or with an Entity User, you expressly understand and agree to disclose your User Messages with the affiliated Entity Purchaser.
3. CHILDREN UNDER THE AGE OF 13
The Application is not intended for children under 13 years of age, and we do not knowingly collect personal information from children under 13. If we learn we have collected or received personal information from a child under 13 without verification of parental consent, we will delete that information. If you believe we might have any information from or about a child under 13, please contact us at info@curogram.com.
4. SUPPORT, IMPLEMENTATION AND PROFESSIONAL SERVICES
A subscription for Application entitles you to the level of support included in your subscription, which shall include at a minimum, standard Curogram customer support via email and standard customer training, including a self-onboarding email and limited implementation email support thereafter. Additional support, implementation and professional services may be purchased by you. All such additional services delivered by Curogram shall be subject to the terms and conditions of this Agreement or your Client Services Agreement, as applicable.
5. APPLICATION UPDATES
Curogram may from time to time in its sole discretion develop and provide Application updates, which may include upgrades, bug fixes, patches and other error corrections and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that Curogram has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality, except as otherwise provided in a Client Services Agreement. Based on your mobile device settings, when your mobile device is connected to the internet either: (a) the application for the Application will automatically download and install all available Updates; or (b) you may receive notice of or be prompted to download and install available Updates. If you are using a web client version the Update will occur automatically. You shall promptly download and install all Updates and acknowledge and agree that the Application or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Application and be subject to all terms and conditions of this Agreement.
6. YOUR DATA
As between you and Curogram, you shall own all data, text, information, screen names, graphics, photos, profiles, audio and video clips, links and other content and materials that you submit, post, display and transmit using the Application, (collectively, “Client Data”), and Curogram acknowledges that it will not acquire any rights in Client Data. Curogram shall only use Client Data to fulfill its contractual obligations and as provided in this Agreement. You shall be fully liable and responsible to ensure that your Client Data does not violate any law, regulation or the terms herein.
You agree that Client Data received by Curogram in connection with the download, installation, configuration, maintenance, support and use of the Application may be transferred, stored and processed in the United States of America or any other country where Curogram or its Service Providers (as defined below) maintain facilities. By downloading, installing or using the Application or by receiving customer support assistance, you authorize Curogram and its Service Providers to collect, store and process your data, including personal data, subject to the terms of this Agreement. “Service Providers” shall mean communications carriers, data centers, and hosting services providers, short messaging services (“SMS”) providers and content and data management providers that Curogram uses in providing the Application and services. You agree that Curogram and its Service Providers may process your personal contact data and usage data to send service related notifications, enforce compliance with this Agreement, facilitate the provision of software updates, improve the Application, better understand client needs, and to comply with our contractual obligations and applicable law. Curogram is U.S.-EU Safe Harbor certified, and will remain certified (or will adopt a solution which achieves compliance with Article 25 of Directive 95/46/EC or any replacement regulation) during the term of this Agreement.
7. INDEMNIFICATION
You agree to defend, indemnify and hold harmless Curogram, its officers, shareholders, predecessors, successors in interest, directors, employees, agents, subsidiaries, affiliates, licensors and suppliers from and against any and all claims, charges, complaints, damages, losses, liabilities, costs and expenses (including attorneys’ fees) due to, arising out of or relating in any way to your use of, or access to, the Application.
8. DISCLAIMER
TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE APPLICATION ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND Curogram, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND LICENSORS AND SERVICE PROVIDERS, HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE APPLICATION, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, TITLE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. WE DO NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE APPLICATION, THAT THE FUNCTIONS CONTAINED IN OR PERFORMED BY THE APPLICATION WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE APPLICATION WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ANY UPDATE WILL CONTINUE TO BE MADE AVAILABLE, THAT DEFECTS IN THE APPLICATION WILL BE CORRECTED, OR THAT THE APPLICATION WILL BE COMPATIBLE OR WORK WITH ANY THIRD PARTY SERVICES OR APPLICATIONS. INSTALLATION OF THE APPLICATION MAY AFFECT THE USABILITY OF THIRD PARTY SERVICES OR APPLICATIONS. WE RECOMMEND THAT YOU NOT INSTALL THE APPLICATION ON ANY “JAILBROKEN” OR “ROOTED” DEVICES. YOU FURTHER ACKNOWLEDGE THAT THE APPLICATION ARE NOT INTENDED OR SUITABLE FOR USE IN SITUATIONS WHERE THE FAILURE OR TIME DELAY OF, OR ERRORS OR INACCURACIES IN, THE CONTENT, DATA OR INFORMATION PROVIDED BY THE APPLICATION COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR PROPERTY DAMAGE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY US OR AN APPROVED REPRESENTATIVE SHALL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
9. LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL Curogram OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APPLICATION OR THE CONTENT AND SERVICES FOR: (a) PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, OR (b) DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE APPLICATION DURING THE PRECEDING 12 MONTHS. THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR Curogram WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE APPLICATION MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
10. ENTIRE AGREEMENT; MODIFICATIONS
This Agreement constitutes the entire agreement between the parties with respect to the terms and conditions governing your use and access to the Application. This Agreement supersedes and cancels all previous written or oral communications, proposals, representations, and agreements relating to the subject matter contained herein, except a Client Services Agreement as applicable. This Agreement prevails over any pre-printed, conflicting or additional terms of any purchase order, ordering document, acknowledgement or confirmation or other document issued by you. This Agreement may be modified by a “click wrap” or “click accept” agreement that Curogram incorporates into or as a condition of downloading Application after initial delivery or otherwise by notice to you through the Application. If you do not agree to the terms and conditions to any amendment or other changes to this Agreement, please immediately remove and delete the Application. The effective date of any changes to this Agreement will immediately follow the Agreement terms. Except as expressly provided herein, this Agreement may be amended, or any term or condition set forth herein waived, only in writing signed by both parties, or with respect to a waiver, the party waiving such condition.
11. WAIVER
The failure of either party hereto to enforce at any time any of the provisions or terms of this Agreement shall in no way be considered to be a waiver of such provisions. If any provision of this Agreement is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision shall, to the extent required, be deemed deleted or revised, and the remaining provisions shall continue in full force and effect to the maximum extent possible so as to give effect to the intent of the parties.
12. NOTICE
Legal notices to be provided under this Agreement shall be delivered in writing. Notices to Curogram shall be sent by personal delivery, registered or certified mail (return receipt requested, postage prepaid) or commercial express courier (with written verification of receipt) to: Curogram, Inc., 929 S. Bedford St., Los Angeles, CA 90035, Attention: Legal Department. For contractual purposes, you consent to receive communications from Curogram electronically. Notices sent to you shall be sent by personal delivery, electronic mail, registered or certified mail (return receipt requested, postage prepaid) or commercial express courier (with written verification of receipt) to the address listed on your account. All notices will be deemed given: (i) when delivered personally; (ii) 24 hours after electronic mail is sent, unless Curogram is notified that the email address is invalid; (iii) three (3) business days after being deposited in the mail; or (iv) one (1) day after deposit with a commercial express courier specifying next day delivery. Either party may change its address for receipt of notice by notice to the other party in accordance with this section.
13. EQUITABLE RELIEF
The parties agree that a material breach of this Agreement adversely affecting Curogram’s intellectual property rights in the Application or its Confidential Information may cause irreparable injury to Curogram for which monetary damages would not be an adequate remedy and Curogram shall be entitled to equitable relief (without a requirement to post a bond) in addition to any remedies it may have hereunder or at law.
14. ASSIGNMENT
You may not assign or transfer this Agreement, in whole or in part, by operation of law or otherwise without our prior written consent. Any attempted assignment or transfer without such consent will be void. Subject to these limits, this Agreement will inure to the benefit of the parties and their respective successors and assigns.
15. EXPORT REGULATION.
The Application may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export or release the Application to, or make the Application accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation. You shall comply with all applicable federal laws, regulations and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing or otherwise making the Application available outside the US.
16. GEOGRAPHIC REGULATION.
The Content and Services is based in the United States. You acknowledge that you may not be able to access all or some of the Content and Services outside of the United States and that access thereto may not be legal by certain persons or in certain countries. If you access the Content and Services from outside the United States, you are responsible for compliance with local laws.
17. US GOVERNMENT RIGHTS.
The Application are commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if you are an agency of the US Government or any contractor therefore, you receive only those rights with respect to the Application as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
18. CONTROLLING LAW AND SEVERABILITY
This Agreement shall be governed and construed in accordance with the laws of the State of Delaware, without regard to its conflicts of laws rules. The parties submit to the exclusive jurisdiction and venue of the state and federal courts located in Delaware, in each case located in the city of Dover and county of Kent. The United Nations Convention on Contracts for the International Sale of Goods shall not apply. The prevailing party in any action arising out of this Agreement shall be entitled to its reasonable attorneys’ fees and costs.
Last Update: June 23, 2017
