Terms of Service

1. Access to the Services

The “www.sekond.co” website and domain name and any other linked pages, features, content, and/or application services (including without limitation any mobile application services) offered from time to time by Company in connection therewith (collectively, the “Website”) are owned and operated by Company. Subject to the terms and conditions of this Agreement, Company may offer to provide certain services, as described more fully on the Website, to you (such services together with the Website, the “Services”), solely for your own use, and not for the use or benefit of any third party.

The Services can be accessed (i) as a free-to-the-user service, or (ii) through paid service options for which you pay certain monthly or annual fees (the “Paid Versions”). With respect to both the Free Version and the Paid Versions, the specifications applicable to your particular version (the “Specifications”) are set forth in a subscription quote that has been agreed to by you and Company (as agreed, a “Subscription Plan”). You will be deemed to have agreed to the Subscription Plan for the Paid Versions upon your payment of fees after receipt of the subscription quote. You will be deemed to have agreed to the Subscription Plan for the Free Version by using the services in any manner. Each such Subscription Plan is governed by the terms of this Agreement.

You acknowledge that the Free Version is provided at no charge, and therefore, the terms that govern use of the Free Version are different, in part, from the terms that govern use of the Paid Versions. The specific provisions that relate only to the Paid Versions are set forth in Sections 6.A (Paid Versions Limited Warranty), 10.A (Paid Versions Limitation of Liability), 11 (Fees and Payment for Paid Versions), and 15.A (Termination of Paid Versions), and the specific provisions that relate only to the Free Version are set forth in Sections 10.B (Free Version Limitation of Liability) and 15.B (Termination of the Free Version). All other non-specified terms shall apply to both the Paid Versions and Free Version.

If you upgrade from the Free Version to any Paid Versions, you acknowledge and agree that the terms that govern the use of the Paid Versions shall automatically apply to you upon such upgrade. Company may provide the Services to you directly or indirectly using contractors or other third party vendors or service providers.

2. Modifications to Services

Company may change, suspend or discontinue any of the Services, in whole or in part, at any time. If your Subscription Plan for the Paid Versions is updated in the middle of a term, you will be deemed to have accepted the updated Subscription Plan upon your payment of fees after receipt of the updated Subscription Plan. If your Subscription Plan for the Free Version is updated in the middle of a term, your continued use of the Services following such changes will constitute affirmative acceptance of the new updated Subscription Plan.

3. Modifications to Agreement

Company reserves the right, in its sole discretion, to modify this Agreement at any time by posting a notice on the Website or by sending you a notice via email to your email address in Company's records. You shall be responsible for reviewing and becoming familiar with any such modifications. Modifications will not apply retroactively and will become effective no sooner than thirty (30) days after they are posted on the Website or communicated to you via email. Notwithstanding the foregoing, modifications related to new Services functionalities and modifications made for legal reasons will be effective immediately.

Your continued use of the Services following such notification constitutes your affirmative acceptance of the terms and conditions of this Agreement as modified and your agreement to abide and be bound by the Agreement, as amended. With respect to the Free Version, if at any time you choose not to accept the modifications, then please terminate your subscription to the Services through your Services account.

With respect to Paid Versions, you may terminate the Services (i) if any modification to this Agreement materially degrades your access to information or Services and you provide written notice of such material impact (a “Material Impact Notice”) to Company within ten (10) days of receiving Company's email informing you of such modification, and (ii) Company and you fail to come to mutual agreement on an amendment to the Agreement within 30 days following Company's receipt of your Material Impact Notice.

4. Website and Services Content

A. Intellectual Property Rights

The Website, the other Services, and their content are owned by Company or Company's licensors and are intended to be used by you solely for your personal use and in accordance with the terms of this Agreement. All data, materials, and information displayed or performed on the Website and/or other Services (including, but not limited to text, graphics, articles, photographs, images, illustrations (also known as the “Content”)) are protected by copyright and other proprietary rights and are the confidential information of Company.

You shall abide by all copyright notices, trademark rules, and restrictions contained in any Content accessed through the Services, and, unless otherwise expressly permitted in this Agreement, shall not use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purposes whatsoever any Content not owned by you: (i) without the express prior written consent of the respective owners, and (ii) in any way that violates any third party right.

B. Content Disclaimer; Links

Under no circumstances will Company be liable in any way for any Content or User Submissions (as defined below), including, but not limited to, any errors or omissions in any Content or User Submissions or any loss or damage of any kind incurred in connection with use of or exposure to any Content posted, emailed, accessed, transmitted, or otherwise made available via the Services. Additionally, Company cannot guarantee the authenticity of any data, which users may provide about themselves. You acknowledge that all Content accessed by you using the Services is at your own risk and you will be solely responsible for any damage or loss to any party resulting therefrom. Company reserves the right to remove any Content, in whole or in part, from the Services at any time, for any or no reason. If you link to the Website, Company may revoke your right to so link at any time, at Company's sole discretion. Company reserves the right to require prior written consent before linking to the Website.

C. User Submissions

In the course of using the Services, you may provide data, materials and/or information to Company which Company will need to use in connection with providing Services, for example, user information (“User Submissions”). You acknowledge and agree that by providing User Submissions to Company, including, without limitation, by transmitting into your Company account data, materials and/or information from or through a third party site or service that you have linked to your Company account, Company hereby is and shall be granted a non exclusive, worldwide, royalty free, perpetual, irrevocable, sub-licensable and transferable right to use, reproduce, reformat, modify, create and use derivative works based on, excerpt, translate, publish, broadcast, transmit, perform, upload, or display such User Submissions (including all related intellectual property rights) solely to provide the Services, provided that Company will not make available User Submissions to other third parties unless to comply with any applicable laws or regulations.

You acknowledge and agree that you determine, in your sole discretion, the User Submissions that are provided to the Company by you and as a result, you, not Company, remain solely responsible for all of your User Submissions. You represent and warrant that you possess all rights and authority necessary to provide such User Submissions to Company and to grant Company the rights to use such information as provided in this Agreement. Company will only share your personally identifiable information in accordance with Company's Privacy Policy in effect from time to time and posted on the Website.

D. Trademarks

The Sekond trademark, and all other trademarks, service marks, graphics and logos used in connection with the Website and/or Services are trademarks or registered trademarks of the Company or Company's licensors. Other trademarks, service marks, graphics and logos used in connection with the Website and/or Services may be the trademarks of third parties.

E. Data Security

Company will use commercially reasonable efforts to safeguard your User Submissions in its possession from any (a) unauthorized disclosure, access, use or modification; or (b) misappropriation, theft, destruction, or loss.

5. Obligations and Restrictions

A. Registration Information; Selection of Services

You represent and warrant to Company that: (i) all registration information, including, without limitation, any credit card or billing information, you submit is accurate, complete and truthful; and (ii) you will maintain the accuracy of such information. You also certify that you take full responsibility for the selection and use of and access to the Services.

B. Systems

You shall obtain and operate all Systems (as defined below) needed to connect to, access or otherwise use the Services, and you shall provide all corresponding backup, recovery and maintenance services. You shall ensure that all Systems are compatible with the Services, and you shall maintain the integrity and security of your Systems (physical, electronic and otherwise). For the purposes of this Section, “Systems” means modems, servers, software, network and communications equipment and ancillary services that are owned, controlled or procured by you.

C. Code of Conduct

You represent, warrant and agree that you will not directly or indirectly, or permit any third party to, contribute any Content or User Submission or use the Services in a manner that (i) infringes or violates the intellectual property rights or proprietary rights, rights of publicity or privacy, or other rights of any third party; (ii) violates any law, statute, ordinance or regulation; (iii) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable; (iv) involves commercial activities and/or sales without Company's prior written consent such as contests, sweepstakes, barter, advertising, or pyramid schemes; (v) impersonates any person or entity; (vi) contains a virus, trojan horse, worm, time bomb, or other harmful computer code, file, or program; (vii) intends to obtain the password, account, or private information from any other user of the Services unless otherwise permitted through the Services; (viii) violates the security of any computer network, cracks passwords, or security encryption codes, or transfers or stores illegal material; (ix) runs Maillist, Listserv, any form of auto-responder, or “spam” on the Services; (x) uses manual or automated software, devices, or other processes to “crawl,” “scrape,” or “spider” any page of the Website; (xi) decompiles, disassembles, reverse engineers, or otherwise attempts to obtain the source code of the Services; (xii) uses any of the Company's confidential information to create any software, documentation or service that is similar to any of the Services; (xiii) modifies, translates, or otherwise creates derivative works of any part of the Services; (xiv) copies, licenses, sublicenses, sells, resells, encumbers, rents, leases, time-shares, distributes, transfers or otherwise uses or exploits or makes available any of the Services for the benefit of any third party without the prior written consent of the Company; or (xv) is not authorized by your Subscription Plan.

D. Restrictions on Access

Company may impose limits on certain features and Services or restrict or suspend your access to parts or all of its Services at any time if it reasonably suspects that you have breached any of the terms, conditions or restrictions set forth in Section 5.C (Code of Conduct). Company shall provide notice of any such limits, restrictions or suspensions by providing notice to your email address in Company's records.

6. Limited Warranty and Disclaimers

A. Paid Versions Limited Warranty

Company warrants that it will use commercially reasonable efforts to ensure that the Services are available 24 hours a day, seven days a week. Notwithstanding the foregoing, the Paid Versions may be temporarily unavailable, for example, when deemed reasonably necessary or prudent by Company to repair, maintain or upgrade the Services, or for causes beyond Company's reasonable control.

B. Warranty Disclaimer

The Website, other Services and Content provided by Company are provided for informational use only and do not constitute and should not be construed as: (i) a solicitation or offer; (ii) a recommendation to acquire or dispose of any investment or to engage in any other transaction; or (iii) advice or recommendations of any nature whatsoever, including but not limited to investment or legal advice. For the avoidance of doubt, Company in no way serves as a registered investment advisor or broker dealer and does not serve to assist any party in raising or acquiring financing. Company has no special relationship with or fiduciary duty to you.

WITHOUT LIMITING ANY OF THE FOREGOING DISCLAIMERS PROVIDED IN THIS SECTION 6, THE WEBSITE, OTHER SERVICES AND CONTENT ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

7. Privacy Policy

For information regarding Company's treatment of personally identifiable information (“Personal Data”), including, without limitation, the treatment of credit card and billing information, please review Company's current Privacy Policy, which is hereby incorporated by reference; your acceptance of this Agreement constitutes your acceptance and agreement to be bound by Company's Privacy Policy.

8. Registration and Security

As a condition to using some aspects of the Services, you may be required to register with Company and select a password and user name (“Company User ID”). Company reserves the right to refuse registration of or cancel a Company User ID in its discretion. You shall be responsible for maintaining the confidentiality of your password, and you shall be solely responsible for all use of the Services through your user name and password. You agree to immediately notify Company of any unauthorized use of any of the Services of which you become aware.

9. Indemnity

You will indemnify and hold Company, its parents, subsidiaries, affiliates, officers, and employees harmless (including, without limitation, from all damages, liabilities, losses, settlements, costs and attorneys' fees) from any claim or demand made by any third party due to or arising out of your unauthorized access to or use of the Services, reliance on any Content provided through the Services, use or disclosure of any of your User Submissions in accordance with this Agreement, or the infringement by you or any third party using your account of any intellectual property or other right of any person or entity.

10. Limitation of Liability

A. Paid Versions Limitation of Liability

EXCEPT FOR DEATH, BODILY INJURY OR FRAUD, AMOUNTS OWED TO THIRD PARTIES PURSUANT TO THE INDEMNIFICATION OBLIGATIONS HEREIN, ANY BREACHES OF SECTION 5.C (CODE OF CONDUCT) OR SECTION 11 (FEES AND PAYMENT FOR PAID VERSIONS), OR ANY EXCLUSION OR LIMITATION OF LIABILITY THAT IS VOID, PROHIBITED OR UNENFORCEABLE BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY OR ITS LICENSORS, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE WITH RESPECT TO THE WEBSITE OR ANY OTHER SERVICES OR CONTENT OR THE SUBJECT MATTER OF THIS AGREEMENT, UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, (I) FOR ANY AMOUNT IN THE AGGREGATE IN EXCESS OF THE AMOUNTS PAID TO COMPANY HEREUNDER WITH RESPECT TO THE SERVICES THAT GAVE RISE TO THE CLAIM DURING THE TWELVE (12)-MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE; (II) FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER; (III) FOR DATA LOSS OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; OR (IV) FOR ANY MATTER BEYOND COMPANY'S REASONABLE CONTROL.

B. Free Version Limitation of Liability

TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT SHALL COMPANY OR ITS LICENSORS, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE WITH RESPECT TO THE WEBSITE OR ANY OTHER SERVICES OR CONTENT OR THE SUBJECT MATTER OF THIS AGREEMENT, UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, (I) FOR ANY AMOUNT IN EXCESS OF $100; (II) FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER; (III) FOR DATA LOSS OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; OR (IV) FOR ANY MATTER BEYOND COMPANY'S REASONABLE CONTROL.

11. Fees and Payment for Paid Versions

You agree to pay Company the fees, in amounts and at the times specified in your Subscription Plan. In its sole discretion, Company may permit two methods of payment: (i) payment by credit card on a month-to-month or annual basis or (ii) payment by check or wire on an annual basis. If you choose to pay by check or wire, you will receive an invoice for the applicable annual fee. All invoices must be paid within 30 days after the date of the invoice.

You must provide Company with, and ensure that Company always has, accurate and complete billing information. By submitting credit card information to the Company, you give Company permission to charge all fees incurred through your account to the designated credit card. All payments, whether by check or credit card, are nonrefundable. For monthly and annual Subscription Plans, upgrades will be prorated for the remainder of the term as calculated at the next billing date.

Company reserves the right to terminate this Agreement in accordance with Section 15 hereto if you do not pay the fees owed hereunder by the applicable due date. All payments are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments, and you agree to bear and be responsible for the payment of all such charges, excluding taxes based upon Company's net income.

A. Storage and Use of Credit Card Information

In accordance with Company's Privacy Policy, you hereby acknowledge and agree to permit Company to use and store any credit card and billing information that you provide in connection with any payment for the Paid Versions as described above. Be advised that we may employ other third parties/agents to perform tasks on our behalf, including processing credit card payments, which may require us to provide your credit card information to third parties. Unless we tell you differently, the third parties/agents do not have any right to use the credit card information we share with them beyond what is necessary to assist us.

12. Support

Company will use commercially reasonable efforts to provide you with support and maintenance for the Services in accordance with its standard practices (as may be amended from time to time). You agree that Company will have the right to charge, in accordance with its then current policies, for any support services resulting from problems, errors or inquiries relating to systems or any other network, equipment, service or software not owned, controlled or procured by Company. Company shall have no obligation to provide updates (for example, patches or revisions to the Services), except that Company will provide you with any update that it makes generally available without charge to its similar customers.

13. Interaction with Third Parties

The Website and/or other Services may contain links to third party websites or services (“Third Party Websites”) that are not owned or controlled by Company. When you access Third Party Websites, you do so at your own risk. You hereby represent and warrant that you have read and agree to be bound by all applicable policies of any Third Party Websites relating to your use of the Services and that you will act in accordance with those policies, in addition to your obligations under this Agreement.

Company has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, or practices of or opinions expressed in any Third Party Websites. In addition, Company will not and cannot monitor, verify, censor or edit the content of any Third Party Websites. By using the Services, you expressly relieve and hold harmless Company from any and all liability arising from your use of any Third Party Website.

14. Publicity

Except in order to identify you as a customer on its website and marketing materials for the Services, Company is not permitted to use your name and logo without your prior written consent.

15. Termination

A. Termination of Paid Versions

With respect to the Paid Versions, this Agreement may be terminated by either party, in whole or in part, (i) if the other party materially breaches a provision of this Agreement and fails to cure such breach within 10 days (5 days in the case of non-payment) after receiving written notice of such breach from the non-breaching party, or (ii) immediately upon written notice, if the other party makes any assignment for the benefit of creditors, or the other party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding or such a proceeding is instituted against the other party and is not dismissed within 90 days.

B. Termination of the Free Version

This Agreement shall remain in full force and effect while you use the Services. You may terminate your use of the Services at any time through your Services account. Company may also terminate or suspend any and all Services and access to the Website immediately, without prior notice, at any time, including, without limitation, if you breach any of the terms or conditions of this Agreement.

C. Effect of Termination

Upon termination of your account, your right to use the Services and access the Website and any Content will immediately cease. All provisions of this Agreement, which, by their nature, should survive termination, shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, intellectual property related restrictions, indemnification obligations and limitations of liability.

16. Miscellaneous

The failure of either party to exercise, in any respect, any right provided for herein shall not be deemed a waiver of any further rights hereunder. Company shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Company's reasonable control. If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sub-licensable by you except with Company's prior written consent. Company may transfer, assign or delegate this Agreement and its rights and obligations without consent. Both parties agree that 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.

17. Arbitration; Governing Law

This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts without regard to the conflict of laws provisions thereof. Any dispute arising from or relating to the subject matter of this Agreement shall be finally settled by arbitration in the Commonwealth of Massachusetts, using the English language in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. (“JAMS”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes. Judgment upon the award so rendered may be entered in a court having jurisdiction. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the United States Federal Courts located in the Commonwealth of Massachusetts.

18. Copyright Dispute Policy

Company has adopted the following general policy toward copyright infringement in accordance with the Digital Millennium Copyright Act or DMCA. It is Company's policy to (1) block access to or remove material that it believes in good faith to be copyrighted material that has been illegally copied and distributed by any of our advertisers, affiliates, content providers, or users; and (2) remove and discontinue service to repeat offenders.

A. Procedure for Reporting Copyright Infringements

If you believe that material or content residing on or accessible through the Services infringes a copyright, please send a notice of copyright infringement containing the following information to the Designated Agent listed below:

1. A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed;
2. Identification of works or materials being infringed;
3. Identification of the material that is claimed to be infringing, including information regarding the location of the infringing materials that the copyright owner seeks to have removed, with sufficient detail so that Company is capable of finding and verifying its existence;
4. Contact information about the notifier including address, telephone number and, if available, email address;
5. A statement that the notifier has a good faith belief that the material identified in (3) is not authorized by the copyright owner, its agent, or the law; and
6. A statement made under penalty of perjury that the information provided is accurate and the notifying party is authorized to make the complaint on behalf of the copyright owner.

B. Once Proper Bona Fide Infringement Notification is Received

It is Company's policy:

1. to remove or disable access to the infringing material;
2. to notify the content provider or user that it has removed or disabled access to the material; and
3. that repeat offenders will have the infringing material removed from the system and that Company will terminate such content provider's or user's access to the Services.

C. Procedure to Supply a Counter-Notice

If the content provider or user believes that the material that was removed (or to which access was disabled) is not infringing, the content provider or user must send a counter-notice containing the following information to the Designated Agent listed below:

1. A physical or electronic signature of the content provider or user;
2. Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or disabled;
3. A statement that the content provider or user has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material; and
4. Content provider's or user's name, address, telephone number, and, if available, email address, and a statement that such person or entity consents to the jurisdiction of the Federal Court for the judicial district in which the content provider's or user's address is located.

D. Designated Agent

Sekond, Inc., Attn: DMCA Designated Agent, 10 Fan Pier Blvd, 3rd Floor, Boston, MA 02210 USA. Email: notice@sekond.co.

19. Contact

If you have any questions, complaints, or claims with respect to the Services, you may contact us at: Sekond, Inc., 10 Fan Pier Blvd, 3rd floor, Boston, MA 02210 USA or at notice@sekond.co.