Terms & Conditions
This agreement is between you and cogneto.io, an Irish registered company, of Dogpatch Labs Europe, The CHQ Building, Custom House Quay, Dublin 1. We are the owner of the StillAlive Software as a Service (the Service).
You wish to use the Service for your personal or organizational purposes. If you are agreeing to this Agreement on behalf of a company, or other legal entity, you represent that you have the authority to bind that entity to this Agreement. If this is the case, then "you" and "your" in this document are references to your company or legal entity.
By using our service, you agree in full to the terms and conditions set out in this agreement and also confirm that you have the authority mentioned above.
Unless the context otherwise requires, the following expressions shall have the following meanings:
- means this terms and conditions document.
- Authorized User(s)
- means the user or users authorized by you to access and use the Service under your subscription to the service.
- Billing Period
- means the period of one calendar month starting and ending on the Renewal date.
- Confidential Information
- means information that is or has been disclosed by one party to the other, but does not include any information that is; on receipt, in the public domain, or that subsequently enters the public domain without any breach of this Agreement; on receipt, already known by the party receiving it; at any time after the date of receipt, received in good faith from a third party; or required by law to be disclosed.
- Heroku service
- means the software hosting service provided by Heroku, Inc of 321 11th Street, San Francisco, CA provided through the website at http://heroku.com/.
- AppHarbor service
- means the software hosting service provided by AppHarbor, Inc of 120 Kearny Street, 28. floor, San Francisco, CA 94108 provided through the website at http://appharbor.com/.
- Intellectual Property
- means copyright, patents, designs, trademarks, trade names, goodwill rights, trade secrets, confidential information and any other intellectual proprietary right or form of intellectual property, and the right to apply to register and enforce the foregoing rights.
- Reasonable Use
means that the volume of data, frequency of use and concurrency of use does not interfere with any other
user of the Service.
- Renewal Date
means the monthly anniversary of your initial account creation date. If you purchased your access to the
Service through the Heroku service, your Renewal Date is the first of every calendar month.
- StillAlive Site
means the website available at http://stillalive.com/.
- Subscription Fee
means the fee we charge you for your use of the Service as details on the StillAlive Site.
- the Service
means the StillAlive software as a service as described on the StillAlive Site.
- Your Data
means any information, data or files that any Authorised User has input or uploaded to the Service
or that is imported from a third party as part of the Service (this could include for example the
results of checks performed against your web application).
If you have paid your subscription fee, and are complying with this Agreement, we grant you and any Authorised User a non-exclusive, non-transferrable, non-assignable, non-sublicensable, revocable right to access and use the Service.
Your use of our service must be for your own lawful organisational or personal purposes in the manner that we make it available to you as set out in this Agreement.
You can access the Service through the sign in page on our website. This is accessible via our home page at http://stillalive.com/
Except as laid out below, you are not permitted to assemble, reverse engineer, copy, adapt, modify or try to obtain the source code that makes up the Service. You may not also create derivative works based on the Service without us giving you express written consent.
We may, at our sole discretion, change any part of the Service at any time. Should we make a large change to the Service that impacts negatively on your use of the service, we will give you seven (7) days notice via an email to our user email list.
It is your responsibility to be subscribed to our user list. All users of the Service are automatically subscribed, but should you unsubscribe from this list, then you are waiving your right to receive any change notification detailed above or any other notice detailed in this Agreement. If you have unsubscribed from our list, and wish to resubscribe, please visit your Account page within the service, and enable the subscribe option.
Your use of the Service and access to the Service is limited to reasonable use. We may revoke your right to access the Service if you violate this reasonable use provision. user.
3. Subscription Fees and Payment
The subscription fee is charged monthly at the anniversary of your initial sign up date with the Service. Every account comes with a 30 day free trial. You may cancel your account at any time within this 30 day period and not be charged for your use of the service.
Your subscription will automatically renew on the renewal date for a new billing period at the end of your current billing period. At this time your account will be charged for the new subscription fee for the next billing period.
You may also, in addition to the monthly fee, purchase additional messages. These messages are non refundable should you choose to cancel your account.
We reserve the right to change our fees and charges and introduce new charges at any time. You will be notified of any such change via an email to our user subscription list.
You may upgrade or downgrade your account plan with StillAlive at any time via the Accounts dashboard panel within your StillAlive account.
If you are using StillAlive via the Heroku service, then your charges for the Service will be controlled through the Heroku service.
Any change to your account will take effect immediately and apply to all future invoices.
If you are upgrading your account, we will charge you immediately for the remaining time of your billing period for your new account plan.
If you are downgrading your account, we will charge you the new plan amount at your next renewal date of your billing period.
4. Refunds and Cancellations
Once you start paying for the service, you can cancel at any time. Your subscription fee is a monthly access fee paid and is not refundable.
If you have purchased a number of additional SMS or Voice messages in the month that you cancel your account, you may apply for a refund of these messages by emailing us at firstname.lastname@example.org providing your account name, and how many SMS or Voice messages you purchased, and when you purchased them within the current billing period.
5. Your Warranties, Obligations and Acknowledgements
You warrant and acknowledge that you will:
- you will not attempt to replicate the paid service by creating a large number of free accounts;
- ensure the email address you provide us for your account is valid;
- ensure that you and all Authorised Users on your subscription comply with the terms and responsibilities set out in this agreement;
- provide the information, access and any cooperation reasonably required of you so that we can provide you with the Service;
- not have relied on any representations made by us not laid out in this agreement;
- not to sell, charge or otherwise encumber the Service in any way without explicit approval by us;
- ensure that your password(s) and any other access information be kept safe and secure and ensure that the Service is at all times protected from access, misuse and damage by anyone using the Service through your passwords(s) or access information;
- contact us immediately should you believe that your password(s) or access information is no longer secure or you have become aware of any unauthorized use of the Service;
- comply with any directions we give you and restrictions we place on you regarding your use of the Service;
- pay the Subscription Fee and any other usage charges in relation to your use of the Service at the times and means we specify;
- not to use the service in any way that is illegal or may be offensive, or causes damage to any other party.
6. Our Warranties and Limitations of Liability
All warranties and guarantees (including, without limitation, warranties, guarantees and conditions as to fitness for purpose and merchantability), whether express or implied by statute, common law or otherwise, are excluded to the extent permitted by law.
If we breach any condition, guarantee or warranty implied by law which cannot lawfully be excluded, to the extent permitted by law the liability of us is limited, at our option, to the resupply of, or payment of the cost of resupplying, the Service.
We shall not have any liability or responsibility to you for any loss, damage or injury whether arising in contract, tort, equity or otherwise which does not flow directly or naturally (i.e. in the ordinary course of things) from a breach of this Agreement including, in each case consequential loss of business or profits, loss of anticipated savings, loss of business opportunity, loss of data, or loss of goodwill or other loss, even if you were advised that any such loss was foreseeable. Unless and to the extent that such liability is not otherwise limited or excluded, we shall only be liable for losses (excluding loss of business or profits) which flow directly from a breach of this Agreement up to a maximum of the aggregate sum paid by you to us under this Agreement, which sum shall be the total combined aggregate liability of us for all breaches occasioned.
The exclusions in this clause shall apply to the fullest extent permissible at law, but we do not exclude liability which may not be excluded by law.
7. Term and Termination
You agree that the term of this agreement shall be for the period of time that you have paid, or continue to pay the subscription fee details above.
Notwithstanding payment of the Subscription fee, and without right of refund, we (at our absolute discretion) may terminate or suspend this agreement, and so your right to access and use the Service in the event that you breach any of the terms laid out herein.
On termination of this Agreement you agree that all rights granted to you under this Agreement cease immediately and you will return any software or materials provided to you (if any) under this Agreement. The following sections survive termination of this agreement: Limitation of Liability, Indemnity, Confidential Information, Intellectual Property, Severability, Dispute Resolution and Governing Law.
8. Use of Your Name and Organization Name
We reserve the right to use your name or your company, organization or legal entity's name as a reference for marketing and promotional purposes on the StillAlive site. This includes use of your company, organization or legal entity's logo on the StillAlive site.
If you wish to decline us this right, you need to email us at telling us that you do not wish to be used as a reference.
9. Electronic Messages from Us
You consent to receiving from time to time, electronic messages from us which market or promote our goods and services. We will cease to send you electronic messages if at any time you instruct us to cease sending such electronic messages. We will provide a functional unsubscribe facility in any electronic messages sent to you which market or promote our goods or services.
You release and indemnify us, our servants and agents against all actions, claims and demands (including the cost of defending or settling any action, claim or demand) which may be instituted against us arising out of a breach of this Agreement by you or the negligence of you, your agents, employees, sub-contractors, authorized users or of any other person for whose acts or omissions you are vicariously liable for.
We release and indemnify you, your servants and agents against all actions, claims and demands (including the cost of defending or settling any action, claim or demand) which may be instituted against you arising out of a breach of this Agreement by us or the negligence of us, our agents, employees, sub-contractors or of any other person for whose acts or omissions we is vicariously liable.
The liability of us under this clause shall be limited per this Agreement.
11. Force Majeure
We may suspend our obligations to perform this Agreement if we are unable to perform as a direct result of a Force Majeure Event by notifying you giving details of the Force Majeure Event. Any such suspension of performance must be limited to the period during which the Force Majeure Event continues.
When we have been suspended our obligations pursuant to the above for a period of 30 days or more, either party may immediately terminate this Agreement by giving notice in writing to the other party.
We may assign our right or novate our obligations under this Agreement at any time at our sole discretion. You may not assign your rights or novate your obligations under this Agreement.
13. Waiver and Non-Merger
No exercise or failure to exercise or delay in exercising any right or remedy by a party shall constitute a waiver by that party of that or any other right or remedy available to it.
The agreements, obligations and warranties contained in this Agreement shall not merge on completion of the transactions contemplated by it but will remain in full force until satisfied.
This Agreement may be executed in any number of counterparts each of which will be an original but such counterparts together will constitute one and the same instrument once exchanged. Counterparts exchanged by email or facsimile shall be treated as originals for all evidentiary purposes.
15. Partial Invalidity
If any provision of this Agreement or its application to any party or circumstance is or becomes invalid or unenforceable to any extent, the remainder of this Agreement and its application shall not be affected and shall remain enforceable to the greatest extent permitted by law.
Any notice or other communication in connection with this agreement shall be via email to the email address provided by you on your account. Any notice shall be deemed to have been received by you once it has been sent to the email address provided by you on your account.
It is your responsibility to ensure the email address on your account is current and correct and that you can reliably receive emails on this account.
17. Dispute Resolution
Where any dispute arises between the parties concerning this Agreement, or the circumstances, representations, or conduct giving rise to the Agreement, no party may commence any court or arbitration proceedings relating to the dispute (other than for injunctive relief) unless that party has complied with the procedures set out in this clause.
The party initiating the dispute (“the first party”) must provide written notice of the dispute to the other party (“the other party”) and nominate in that notice the first party’s representative for the negotiations. The other party must within seven days of receipt of the notice give written notice to the first party naming its representative for the negotiations. Each representative nominated shall have authority to settle or resolve the dispute.
If the parties are unable to resolve the dispute by discussion and negotiation within 14 days of receipt of the written notice from the first party, then the parties must immediately refer the dispute to mediation.
The mediation must be conducted in accordance with the procedures adopted by the Australian Commercial Disputes Centre. The mediation must be conducted by a mediator at a fee agreed by the parties. Failing agreement between the parties, the mediator shall be selected and his/her fee determined by the President for the time being of the Law Society of New South Wales.
18. Governing Law
This Agreement shall be governed by the laws of New South Wales and the Commonwealth of Australia, and the parties submit to the exclusive jurisdiction of the courts of New South Wales.
The Client agrees that any and all disputes arising out of or in connection with this Agreement, including disputes as to the interpretation or validity of this Agreement, will be subject to the exclusive jurisdiction of the courts of New South Wales and courts with jurisdiction to hear appeals from those courts.
19. Interpretation in this Agreement
This agreement shall be interpreted through the following:
- headings and underlinings are for convenience only and do not affect the interpretation of this agreement;
- a reference to currency is to US dollars unless otherwise explicitly stated;
- a reference to time is to Australian Eastern Standard Time;
- a provision of this agreement will not be interpreted against a party just because that party prepared or was responsible for the preparation of the provision;
- a word or expression in the singular includes the plural, and the other way around;
- words importing a gender include any gender;
- other parts of speech and grammatical forms of a word or phrase defined in this agreement have a corresponding meaning;
- a reference to a Statute includes an amendment or re-enactment to that legislation and includes subordinate legislation in force under it;
- a reference to a document includes an amendment or supplement to, or replacement or novation of, that document;
- a reference to a party to this or any other agreement includes that party's successors and permitted assignees;
- a reference to an agreement other than this agreement includes an undertaking, agreement or legally enforceable arrangement or understanding whether or not in writing;
- a reference to a recital, a clause, a Schedule or an Annexure is a reference to a recital, a clause, a Schedule or an Annexure to this agreement;
- a reference to a clause includes a reference to a sub clause; and
- a reference to a person or words denoting a person includes a company, statutory corporation, partnership, joint venture, association, board, government or semi-government agency or authority and that person's successors and permitted assigns.
20. Changes to this Agreement
This agreement may be updated from time to time without prior notice. The current Agreement is always available at http://stillalive.com/terms_and_conditions.