TERMS OF SERVICE
These Terms of Service (“Agreement”) govern the relationship between you (“Customer,” “you” or “your”) and Cireson, LLC, and its subsidiaries (“Cireson,” “we,” “us” or “our”) with respect to your use of the Tikit app (the “Service”).
Please read this Agreement carefully before using the Service, as access to the Service is conditioned on your acceptance and compliance with this Agreement.
1. THE SERVICE
1.1 Subject to the terms of this Agreement, we will provide you with a web-based ticketing solution integrated within Microsoft Teams which utilizes Microsoft Office 365 authentication, including its original content, features and functionality (collectively, the “Service”). Different tiers of the Service are available at different price points and with different packages of features. We reserve the right to add and remove features and create additional tiers of Service, or both, at any time. This Agreement also applies to any updates and supplements to the Service. You will identify an administrator to install and login to the application using Microsoft Office 365 authentication and then authorize the Service to access certain Microsoft Office 365 data. You will have the option to set access authorizations for your organization.
1.2 We grant you a revocable, non-exclusive, non-transferable, limited license to download, install and use the Service strictly in accordance with this Agreement. You agree not to, and will not permit others to, remove, alter or obscure any proprietary notice or mark of Cireson or our affiliates, partners, or suppliers that we have included in the Service.
2.1 Cireson will use commercially reasonable efforts to meet a Service Uptime of 99.95% in a given calendar month. All availability calculations will be based on Cireson’s system records. Notwithstanding anything to the contrary in this Agreement, as Customer’s sole and exclusive remedy for failure to meet availability or support commitments, in the event there are two (2) or more consecutive calendar months during which the Service Uptime falls below 99.95%, Customer will be entitled to receive a credit equal to the prorated amount of fees applicable to the downtime as measured within two (2) or more consecutive months during which the Service Uptime fell below 99.95%, which credit shall be applied against an invoice or charge for the following month, provided Customer requests such credit within twenty (20) days of the end of the relevant calendar month. For the purposes of this Agreement, the following definitions shall apply:
“Service Uptime” means (total hours in a calendar month less unscheduled maintenance which causes unavailability less Priority 1 issue durations less scheduled maintenance less Excluded) divided by (total hours in calendar month less scheduled maintenance less Excluded) multiplied by 100%.
“Excluded” means (i) unavailability caused by circumstances beyond Cireson’s reasonable control, including, without limitation, acts of God, acts of government, emergencies, pandemics, natural disasters, flood, fire, civil unrest, acts of terror, strikes or other labor problems (other than those involving Cireson’s employees), or any other force majeure event or factors; (ii) any problems resulting from Customer combining or merging the Service with any hardware or software not supplied by Cireson; (iii) interruptions or delays in accessing the Service resulting from telecommunications or internet service provider failures outside of our datacenter; and (iv) any interruption or unavailability resulting from the misuse, improper use, alteration, or damage of the Service.
“Priority 1” means a critical full outage or severe issue that constitutes a catastrophic problem that causes complete inability to use the Service across a significant portion of the production environment (e.g. crash or hang), resulting in production downtime and where there is no workaround or solution to the problem.
2.2 For paid Subscriptions, you will receive technical support as follows:
2.2.1 Self-Service and Email Support.
Self-Service resources can be accessed through the help center. Email support questions are accepted 24 hours per day x 7 days per week. Questions can be submitted to firstname.lastname@example.org or through the help center. Responses are provided Monday through Friday from 8am to 5pm PST (Pacific Standard Time), with reduced hours during holidays in the US. Cireson will attempt to respond to questions within one business day; however, Cireson does not promise or guarantee any specific response time; and may limit or deny Customer’s access to support if Cireson determines, in its reasonable discretion, that Customer is acting, or has acted, in a way that results or has resulted in misuse of support or abuse of Cireson representatives.
2.2.2 Support Limitations.
If Cireson determines, in Cireson’s reasonable discretion, that an issue is the result of Customer’s use of API’s or modification to code in the Service, or use of the Service for unintended purposes, the issue may be outside the scope of support.
2.2.3 Free or Trial Service.
If Customer has not paid the Subscription fee due, or is engaged in a free promotional trial, support is available only through the Tikit Help Center available at: help.tikit.ai.
3. RESTRICTIONS AND RESPONSIBILITIES
3.1 Customer will not, directly or indirectly do any of the following: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Service or any software, documentation or data related to the Service; modify, translate, or create derivative works based on the Service; use the Service for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels. To the extent that the Service is distributed or provided to Customer for use on Customer premises or devices, Cireson hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to use Service only during the Term.
3.2 Customer may not remove or export from the United States or allow the export or re-export of the Service or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227‑7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
3.3 Customer represents, covenants, and warrants that Customer will use the Service only in compliance with Cireson’s standard policies and documentation then in effect, as well as all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless Cireson against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Service. Although Cireson has no obligation to monitor Customer’s use of the Service, Cireson may do so and may prohibit or limit access it believes may be in violation of the foregoing.
3.4 Customer shall be responsible for obtaining and maintaining any equipment, software, and ancillary services needed to connect to, access or otherwise use the Service, including, without limitation, Microsoft Office 365 subscription, Microsoft Teams subscription, cellular devices, computers, modems, other hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer’s account, passwords (including but not limited to administrative and user passwords) and files, and for all use of Customer account or the Equipment with or without Customer’s knowledge or consent.
3.5 Customer is solely responsible for its data, including, without limitation, the accuracy, quality, integrity, legality, reliability, appropriateness, and necessary legal rights to use all of the content, data and other information inputted by Customer.
3.6 Customer is solely responsible for its End Users and all activity of all End Users conducted through each End User account. For purposes of this Agreement, an “End User” means any of Customer’s employees or contractors who establish an account for purposes of accessing and utilizing the Service.
4. CONFIDENTIALITY; PROPRIETARY RIGHTS
4.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information includes non-public information regarding pricing, discounts, features, functionality and performance of the Service, as well as your non-public data provided to Cireson to enable the provision or utilization of the Service (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Service or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years after the termination of this Agreement (unless such information constitutes a trade secret in which case the obligation shall last until such information no longer constitutes a trade secret as defined or determined by applicable law), or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of or reference to any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
4.2 Customer shall own all right, title and interest in and to the Customer Data. Cireson shall own and retain all right, title and interest in and to (a) the Service, all improvements, enhancements or modifications thereto regardless of source of any ideas or suggestions for such improvements, enhancements or modifications, (b) any software, applications, inventions or other technology developed in connection with setup, implementation or support, (c) any data that is based on or derived from the Customer Data whether or not provided to Customer as part of the Service, and (d) all intellectual property rights related to any of the foregoing.
4.3 Notwithstanding anything to the contrary, Cireson shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Service and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Cireson will be free (during and after the Term hereof) to (i) use such information and data to improve and enhance the Service and for other development, diagnostic and corrective purposes in connection with the Service and other Cireson offerings, and (ii) disclose such data solely in aggregate or in such other de-identified form as it deems appropriate in connection with its business. No rights or licenses are granted except as expressly set forth herein.
5. SUBSCRIPTION, PAYMENT AND RENEWAL
5.1 You authorize Cireson to charge your credit card in advance the subscription fees due for each Billing Cycle based on the subscription tier you select when subscribing to the Service (“Subscription”). The Subscription fees will be automatically charged to your credit card on file at the beginning of each Billing Cycle. The term “Billing Cycle” means either monthly or annually depending on the Subscription chosen.
5.2 Your Subscription will automatically renew at the end of each Billing Cycle unless terminated pursuant to Section 5 below.
5.3 Customer shall keep a current and valid credit card on file with Cireson at all times during the Term. If Customer’s Credit Card is declined, Cireson will notify Customer and Customer shall have ten (10) business days to update the credit card information on file (“Due Date”). Customer shall be responsible for all taxes associated with the Service.
5.4 In the event that Subscription fees are not received by the Due Date, we may suspend your access to the Service until such time as payment is received.
5.5 Cireson reserves the right to change the Subscription fee or applicable charges and to institute new charges or fees upon thirty (30) days prior notice to Customer which shall apply to the next Billing Cycle. If Customer believes Cireson has invoiced Customer incorrectly, Customer must contact Cireson no later than 60 days receipt of the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to email@example.com. Any disputed amounts resolved in favor of Customer will be promptly credited to Customer’s account. Any disputed amounts resolved in favor for Cireson that are unpaid must be promptly paid to Cireson, plus interest at a rate of 1.5% per month.
5.6 You may change your Billing Cycle at any time from annual to monthly, or vice versa. If you change your Billing Cycle from monthly to annual, you will be charged the prorated annual Subscription fee, less the monthly fee paid for the current Billing Cycle. If you change your Billing Cycle from annual to monthly, you will be credited a prorated amount which will be automatically used to pay monthly Subscription fees until exhausted. You are not entitled to a refund if you change from annual to monthly, and then terminate your Subscription.
5.7 You may upgrade or downgrade your Subscription tier at any time. If you downgrade your Subscription tier part way into a Billing Cycle, you will be given a prorated credit equal to the price difference between Subscription tiers which will be automatically used to pay Subscription fees for subsequent Billing Cycles until exhausted. You are not entitled to a refund if you downgrade Subscription tiers and then terminate your Subscription. If you upgrade your Subscription tier part way into a Billing Cycle, you will be charged the prorated amount based on the price difference between the Subscription fee for the new Subscription tier and the Subscription fee paid for the old Subscription tier.
6. TERM AND TERMINATION
6.1 This Agreement and the Service begins on date your payment is received and shall continue either on a month-to-month basis or an annual basis until terminated by either party as set forth in this Section (the “Term”). Either party may terminate a month-to-month Subscription at any time but not without at least thirty (30) days prior notice by emailing Cireson at firstname.lastname@example.org, except that you may terminate only if all Subscription fees are paid in full through date of termination. You may terminate an annual Subscription at any time for convenience. You are not entitled to a refund if you terminate your Subscription early.
6.2 Upon termination, Cireson will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter Cireson may, but is not obligated to, delete stored Customer Data. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, confidentiality obligations, warranty disclaimers, and limitations of liability.
7. WARRANTY AND DISCLAIMER
Cireson shall use reasonable efforts consistent with prevailing industry standards to maintain the Service in a manner which minimizes errors and interruptions. The Service may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Cireson or by third-party providers, or because of other causes beyond Cireson’s reasonable control. However, NOTWITHSTANDING THE FOREGOING, Cireson does not warrant that ACCESS TO THE SERVICE will be uninterrupted or THAT THE SERVICE will be error free; nor does CIRESON make any warranty as to the results that may be obtained from use of THE SERVICE. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICE IS PROVIDED “AS IS” AND CIRESON DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
Cireson shall hold Customer harmless from liability to third parties resulting from (a) a data breach resulting from Cireson’s gross negligence or willful misconduct in the provision of Services under this Agreement; (b) infringement by the Services of any United States patent or any copyright, provided Cireson is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement. Cireson will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Services (i) not supplied by Cireson, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Cireson, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Cireson to be infringing, Cireson may, at its option and expense (A) replace or modify the Services to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (B) obtain for Customer a license to continue using the Services, or (C) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any unearned portion of any prepaid fees for the Services.
9. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, CIRESON AND ANY OF ITS CURRENT OR FUTURE MANAGERS, OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO THE SERVICE OR ANY OTHER SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, TORT, STRICT LIABILITY OR OTHER THEORY FOR: (A) ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICE OR TECHNOLOGY OR LOSS OF BUSINESS; (B) ANY INDIRECT, EXEMPLARY, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND CIRESON’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE AMOUNTS ACTUALLY PAID TO CIRESON BY CUSTOMER OVER THE PREVIOUS TWELVE (12) MONTH PERIOD, IN EACH CASE, WHETHER OR NOT CIRESON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. Data Collection and Processing
To the extent that Customer or its staff are located in the European Union, the following applies:
Processing Aggregated Data. Customer agrees and acknowledges that Cireson will collect a count of the number of users in Customer’s organization including first name, last name and email address. Cireson collects user counts in order to better understand its customers and how they use the Software across their businesses which assists Cireson with monitoring compliance, product improvement and development. Cireson requires the user’s name and email address to facilitate access and user administration in the Services. Cireson will not share this data with third parties and will not collect any personal information. Customer may opt out of any or all information collection at any time by providing Cireson with written notice.
Processing Personal Data on behalf of Customer. If Cireson processes personal data on behalf of Customer, this will occur when tickets within the Customer’s service instance contain personal data. Typically, the type of personal data processed by Cireson includes name and email address of Customer’s staff. Additionally, Cireson may process personal data that includes monitoring data about software and license usage such as name, individual identifier, email address, IP address, device data, frequency of log in and other usage activities). The categories of data subjects are the Customer’s staff.
Processor Obligations. Where Cireson processes personal data as a processor on behalf of Customer which is subject to the Data Protection Law as notified to Cireson by Customer in writing, Cireson shall: (i) process the personal data to provide the Software and Services only on the documented instructions from the Customer contained in this Agreement; (ii) implement appropriate technical and organizational measures designed to prevent unauthorised or unlawful processing of the personal data and accidental loss or destruction of, or damage to, the personal data (including where appropriate and agreed pseudonymisation and encryption of the personal data and, measures designed to enable the ongoing confidentiality, integrity, availability and resilience of processing systems and services and restore the availability and access to the personal data in a timely manner in the event of a physical or technical incident and/or a process for regularly testing, assessing and evaluating the effectiveness of technical and organizational measures); (iii) not transfer any personal data outside the European Economic Area (EEA), the European Union (EU) or the UK (to the extent that the UK is no longer in the EEA or the EU) unless the Customer consents to such transfer, it is on the basis of a European Commission adequacy decision or appropriate safeguards are in place in accordance with Data Protection Law; (iv) ensure that staff authorized to process personal data are bound by confidentiality obligations; (v) provide commercially reasonable assistance to enable the Customer to fulfill data subjects’ rights to the extent that the Customer does not have the ability to fulfill its obligations without assistance from Cireson; (vi) delete the personal data at the choice of the Customer after the termination of this Agreement and delete copies unless applicable law requires continued storage of the personal data; and (vii) assist the Customer in complying with its obligations under the General Data Protection Regulation by promptly notifying the Customer of any relevant communications from data subjects or a regulator, notifying the Customer of personal data breaches without undue delay and making available to the Customer the information necessary to demonstrate its compliance with the General Data Protection Regulation including, and subject to confidentiality obligations and reasonable notice requirements, allowing for audits (at Customer’s cost) no more than annually during the term of this Agreement or where required by a regulator to comply with the Data Protection Law.
Controller Obligations. Customer as controller, as that term is defined by the Data Protection Law, is in control of the personal data shared with Cireson and can limit the personal data shared with Cireson by not allowing Customer staff to add personal data in tickets stored in their service instance. Aside from name and email of each Customer user, no other personal data is required to be processed by Cireson for Customer to utilize the Services. Customer should not include any additional personal data in support tickets. Customer shall ensure that the processing of personal data as envisaged in this Agreement is conducted in accordance with the Data Protection Law (if applicable), including without limitation, by maintaining all necessary registrations, providing all necessary notices and procuring all necessary consents in order for Cireson’s processing of personal data to comply with the Data Protection Law.
“Data Protection Law” means as applicable the Data Protection Act 1998, EU Data Protection Directive (95/46/EC), Regulation (EU) 2016/679 (the “General Data Protection Regulation”) or any equivalent or replacement law in the UK, the Regulation of Investigatory Powers Act 2000 and the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 (SI 2000/2699) and the terms “controller”, “data subject”, “personal data”, “personal data breach”, “processing” (and “process” shall be interpreted accordingly) and “processor” shall have the meaning given in the Data Protection Law.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Cireson’s prior written consent. Cireson may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Cireson in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions and all disputes shall be brought exclusively in the federal or state courts located in San Diego County, California. Each party agrees that exclusive forum for the resolution of disputes shall not prohibit the enforcement of any judgment in any other appropriate forum. The parties shall work together in good faith to issue at least one mutually agreed upon press release within 90 days of the Effective Date, and Customer otherwise agrees to reasonably cooperate with Cireson to serve as a reference account upon request.
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