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FUNMENTUM TERMS OF SERVICE

Updated August 31, 2023

Please read these terms of service (“Terms”) carefully. These Terms are between you and Funmentum Labs, Inc. (“Funmentum,” “we,” “us,” or “our”) and govern your access to and use of (a) any services made available to you as set forth in an Order Form that references these Terms, (b) any free services provided by Funmentum to you, in its sole discretion, in connection with these Terms, and (c) the Funmentum website located at https://funmentum.com, or such other website as Funmentum may maintain from time to time (the “Website”), including any access to or use of the Funmentum's web client available through the Funmentum Website that allows individuals to join meetings or sessions in a web browser, and any related software, applications, add-ons, plug-ins, components, functionalities, or programs (collectively, the “Services”). 

The “Agreement” shall consist of these Terms, price schedule, if any, and any online registration or order form(s) for the Funmentum Services executed by Funmentum and you that reference these Terms (“Order Form”).  These Terms include the Funmentum Privacy Policy (“Privacy Policy”), Funmentum [Data Processing Addendum] (“Data Processing Addendum”), and any other documents that specifically incorporate these Terms. You may only use the Services in accordance with the terms and subject to the conditions of this Agreement.

By executing an Order Form, taking an action to indicate acceptance, or by using any of the Funmentum Services, with or without registration, you agree to these Terms with Funmentum.  In the event you are agreeing to these Terms on behalf of a company or other legal entity, you certify that you are an authorized representative of such entity.  All references to “you” and “your” in this Agreement mean the person accepting this Agreement as an individual or the legal entity for which the representative is acting. If you do not have such legal authority, or you do not agree with these Terms, do not accept, access or use the Services in any manner.

PLEASE READ THESE TERMS CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. YOUR ACCEPTANCE OF THIS AGREEMENT CREATES A LEGALLY BINDING CONTRACT BETWEEN YOU AND FUNMENTUM.

  • Registration.

You may be required to provide information about yourself to register for and to access or use the Services.  When registering an account with Funmentum or otherwise providing information about yourself, you agree to: (a) provide true, accurate, current and complete information about yourself (such information being the “Registration Data”), and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. To use our Services, you must be at least 18 years of age.  You represent and warrant that you meet the applicable age requirements and are competent to agree to this Agreement.  If you provide any information that is untrue, inaccurate, not current or incomplete, or Funmentum has grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Funmentum may suspend or terminate your account and refuse any and all current or future use of the Funmentum Services (or any portion thereof). Funmentum shall have no liability whatsoever for errors and omissions in your Registration Data. If you are a group or organization owner or administrator (“Account Administrator”), you represent and warrant that you are authorized to make decisions on behalf of the group or organization and agree that Funmentum is entitled to rely on your instructions.

You may not authorize any third party to access or use the Funmentum Services or your account on your behalf.  You are responsible for maintaining the confidentiality of the user ID and password that you choose and are fully responsible for all activities that occur under your account.  You agree to immediately notify Funmentum of any unauthorized use of your account or any other breach of security.  Funmentum cannot and will not be liable for any loss or damage arising from any unauthorized use of your account.  By providing us with your email address, you agree to receive all required notices electronically, to that email address. 

  • Services, Restrictions and Your Obligations.

Conditioned on your compliance with this Agreement, Funmentum grants you and your Authorized Users (defined below) a limited, non-exclusive, non-transferable, non-assignable, non-sublicensable, revocable right to use and access the Services during the Subscription Term for such Services (as applicable), in accordance with all applicable local, state, national and international laws, rules and regulations (collectively “Laws”) and only for your internal business purposes.  You acknowledge and agree that your access to and use of the Services under this Agreement is revocable in Funmentum's sole discretion. Additionally, Funmentum may, in its sole discretion, discontinue the Services or modify the features or functionality of the Services at any time.

Except to the extent a restriction is prohibited by Law, you agree not to do, and not to assist, permit or enable any third party, including any Authorized Users, to do, any of the following:

  1. disassemble, reverse engineer, decode or decompile any part of the Services;
  2. use any robot, spider, scraper, data mining tool, data gathering or extraction tool, or any other automated means, to access, collect, copy or record the Services;
  3. copy, rent, lease, sell, loan, transfer, assign, sublicense, resell, distribute, modify, alter or create derivative works of any part of the Services or any of our Proprietary Rights (defined below);
  4. use the Services in any manner that impacts (i) the stability of our servers, (ii) the operation or performance of the Services or any user's use of the Services, or (iii) the behavior of other applications using the Services;
  5. use the Services in any manner or for any purpose that (i) violates or promotes the violation of any applicable Law, contractual obligation or right of any person including, but not limited to, intellectual property rights, rights of privacy, or rights of personality, (ii) is fraudulent, false, deceptive or defamatory, (iii) promotes hatred, violence or harm against any individual or group, or (iv) otherwise may be harmful or objectionable (in our sole discretion) to us, our providers, our suppliers/licensors, our users, or any other third party; 
  6. use or display the Services in competition with us, to develop competing products or services, for benchmarking or competitive analysis of the Services, or otherwise to our detriment or disadvantage; 
  7. attempt to interfere with, compromise the system integrity or security of, or decipher any transmissions to or from, the servers running the Services; 
  8. transmit viruses, worms or other software agents through the Services; 
  9. impersonate another person or misrepresent your affiliation with a person or entity, hide or attempt to hide your identity, or otherwise use the Services for any invasive or fraudulent purpose; 
  10. share passwords or authentication credentials for the Services, or otherwise circumvent the measures we may use to prevent or restrict access to the Services or enforce limitations on use of the Services; 
  11. identify or refer to us or the Services in a manner that could reasonably imply an endorsement, relationship or affiliation with or sponsorship between you (or a third party) and us, without our prior express written consent; or
  12. make available the Services, or any features or functionality thereof, to any third party for any reason or by any manner, unless expressly permitted by this Agreement or otherwise expressly agreed to in writing by you and Funmentum.

You will, and you will cause your Authorized Users to, abide by and ensure compliance with, all the terms and conditions of this Agreement. Use of the Services is void where prohibited. You are responsible for the activities of all your Authorized Users, including their access to and use of the Services, and ensuring that all Authorized Users will comply with the terms and conditions of this Agreement and any applicable Funmentum policies. You acknowledge that Funmentum assumes no responsibility or liability, and you remain liable for the acts and omissions of any Authorized User or third party that you allow, enable, or otherwise provide access to the Services, whether or not such access was expressly permitted by Funmentum. If you become aware of any violation of this Agreement in connection with the use of the Services by any person, you must contact Funmentum at support@funmentum.com. Under no circumstances will Funmentum be liable in any way for any data or other content viewed while using the Services, including any errors or omissions in any such data or other content, or any loss or damage of any kind incurred as a result of the use of, access to, or denial of access to any data or other content. Funmentum may investigate any complaints and violations that come to our attention and may take any action, in its sole discretion, including issuing warnings, suspending or disconnecting the Services, removing the applicable data or other content, terminating accounts or Authorized User profiles, or taking other reasonable actions in its sole discretion.

  • Term and Termination.

These Terms will commence when you first use our Services or as of the Effective Date of the Order Form, as applicable, and will continue until expiration or termination by either party in accordance with the provisions set out in these Terms. Unless otherwise provided herein, any Order Form executed hereunder remains governed by these Terms for its applicable Subscription Term (as defined below), irrespective of any earlier termination or expiration of any other Order Form. Termination or expiration of these Terms or an Order Form does not automatically terminate any other Order Form.

You may terminate these Terms and/or any Order Form upon thirty (30) days’ written notice if Funmentum is in material breach of these Terms or such Order Form and fails to cure such breach within the notice period.

If in Funmentum's sole judgment you fail, or if Funmentum suspects that you have failed, to comply with any provision of these Terms or any Order Form, Funmentum may terminate these Terms and the Order Forms at any time without notice.  For clarity, any such termination will terminate any and all of your existing Order Forms.  

Upon any termination of these Terms and/or an Order Form, you must cease any further use of the Services granted to you under the terminated Order Form and these Terms, except for any access rights granted in this Section 3, and delete, destroy, or return all copies of the Funmentum Proprietary Rights and Confidential Information, and certify in writing to Funmentum that such Proprietary Rights and Confidential Information has been deleted or destroyed. No expiration or termination of these Terms or an Order Form will affect your obligation to pay all Subscription Fees that may have become due before such expiration or termination, including that Funmentum may retain any Subscription Fees previously paid by you under an Order Form if such Order Form is terminated, unless prohibited by applicable Law.

For thirty (30) calendar days following expiration or termination of this Agreement, Funmentum will provide you access to retrieve your User Content, after which time your User Content will not be accessible. All access during the period set forth in this Section 3 is provided to you subject to and governed by this Agreement.

The following provisions will survive any termination of these Terms: Section 3 (“Term and Termination”), Section 4 (“Intellectual Property Rights”) (except as expressly provided therein), Section 5 (“Feedback”), Section 6 (“Confidentiality”), Section 7 (“Fees”), Section 8(A) (“Privacy”), Section 9 (“Representations & Warranties”), Section 10 (“Indemnity; Liability”), Section 11 (“Changes to Agreement”), Section 14 (“Evaluation”), and Section 15 (“General Provisions”).

  1. Intellectual Property Rights.
    1. User Data and Content. You or your Authorized Users may provide, upload, or originate data, content, files, documents, or other materials (collectively, “User Input”) in accessing or using the Services, and Funmentum may provide, create, or make available to you, in its sole discretion or as part of the Services, certain derivatives, transcripts, analytics, outputs, visual displays, or data sets resulting from the User Input (together with User Input, “User Content”); provided, however, that no User Content provided, created, or made available by Funmentum results in any conveyance, assignment, or other transfer of Funmentum's copyrights, patents, trade secrets, know-how, trademarks, servicemarks, trade names, rights of publicity, or other intellectual property or proprietary rights (collectively “Proprietary Rights”) contained or embodied in the Services or other technology used to provide, create, or make available any User Content in any way, and Funmentum retains all Proprietary Rights therein. You further acknowledge that any User Content provided, created, or made available to you by Funmentum is for your or your Authorized Users’ use solely in connection the Services, and that you are solely responsible for User Content. You are solely responsible for compliance with all Laws pertaining to the User Content, including Laws requiring you to obtain the consent of a third party to use, license or generate User Content and to provide appropriate notices of third party rights. Funmentum may delete any User Content, at any time without notice to you if Funmentum becomes aware that it violates any provision of this Agreement or any applicable Laws. You retain all ownership rights in your User Content subject to any license or other rights granted herein.

You hereby grant Funmentum a non-exclusive, transferable, royalty-free, worldwide license to process, host, copy, display, distribute,  access, store, modify, and otherwise use the User Content: (a) to perform our obligations under this Agreement and provide the Services to you; (b) as authorized or instructed by you; or (c) as required by Law.

User Content does not include any data or information related to you or your Authorized Users’ use of the Services that is used by Funmentum in an aggregated and anonymized manner, including to compile statistical and performance information related to you and your Authorized Users’ use of the Services (“Funmentum Generated Data”). As between you and Funmentum, all right, title, and interest in and to Funmentum Generated Data, and all Proprietary Rights therein, belong to and are retained solely by Funmentum. You agree that Funmentum compiles and may compile Funmentum Generated Data based on User Content and use of the Services. You consent to Funmentum's access, use, collection, creation, modification, distribution, processing, sharing, maintenance, and storage of Funmentum Generated Data for any purpose, to the extent and in the manner permitted under applicable Law, including for the purpose of product and service development, marketing, analytics, quality assurance, training, testing, improvement of the Services, or Funmentum's other products, services, and software, or any combination thereof, and as otherwise provided in this Agreement. 

You agree to not, and to not permit any Authorized User to, post, modify, distribute, or reproduce in any way in connection with your or your Authorized Users' use of the Services any copyrighted material, trademarks, or other proprietary material that may infringe, misappropriate, or otherwise violate another's Proprietary Rights without obtaining the prior written consent of the owner of the Proprietary Rights. You represent and warrant that you have all required rights to submit User Content and Feedback without violation or infringement of any third-party rights. You understand that Funmentum does not control, and is not responsible for, User Content or Feedback (as defined below), and that by using the Services, you may be exposed to User Content or Feedback from other users that is offensive, indecent, inaccurate, misleading, or otherwise objectionable.

  1. Ownership of Services. You acknowledge that, notwithstanding anything to the contrary herein, the Services may be provided to you on a subscription basis, and that the Services have not been sold to you. You also acknowledge that you have neither obtained nor will obtain any ownership or other right, title, or interest in or to the Services, or any Proprietary Rights relating thereto. Any copies of Services will remain the exclusive property of Funmentum. The Services may include code that is licensed to you under third party license agreements, including open source software made available or provided with the Services. Without limiting the generality of the foregoing, Funmentum owns all right, title, and interest in and to all Services, any underlying or other technology and intellectual property embodied or contained in, used to provide or support, or otherwise associated or provided in connection with, the Services, including all Proprietary Rights related thereto, and all upgrades, enhancements, new releases, changes, and modifications to the Services, together with all ideas, architecture, algorithms, models, processes, techniques, user interfaces, database design and architecture, and “know-how” embodying the Services. Under no circumstances will you be deemed to receive, have, or be granted title to all or any portion of the Services, title to which at all times vests exclusively in Funmentum. None of the Services or any component thereof, is or shall be deemed to be a “work made for hire,” as that term is defined in 17 U.S.C. § 101.
  2. Reservation of Rights. Funmentum reserves all rights not expressly granted to you in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to you or any third party, any Proprietary Rights or other right, title, or interest in or to any Funmentum Services, Funmentum Generated Data or other intellectual property provided in connection with this Agreement or the Services.
  • Feedback.

If you or any of your employees, contractors, agents, or Authorized Users send, transmit, or otherwise provide any feedback, comments, suggestions, questions, or the like, regarding the Services, including any ideas, know-how, concepts, enhancements, recommendations, or other information relating to the Services, including suggesting or recommending changes to the Services such as new features or functionality relating thereto (collectively, “Feedback”), you acknowledge that Funmentum owns and shall retain ownership of, all right, title, and interest in and to such Feedback, including any Proprietary Rights therein, and Funmentum may use the Feedback, including any Proprietary Rights therein, for any purpose whatsoever without any attribution, financial compensation, or reimbursement of any kind to you or any third party. You hereby unconditionally and irrevocably assign to Funmentum on your behalf, and you shall cause your employees, contractors, agents, and Authorized Users to unconditionally and irrevocably assign to Funmentum, all right, title, and interest in and to the Feedback, including all Proprietary Rights relating thereto. All Feedback is and will be treated as Funmentum Confidential Information.

  • Confidentiality.

The parties acknowledge and agree that each party (the “Receiving Party”) may have access to certain confidential information (“Confidential Information”) of the other party (the “Disclosing Party”).  “Confidential Information” means all information provided by the Disclosing Party to the Receiving Party hereunder that is (a) proprietary and/or non-public information related to the business activities of the Disclosing Party, including any business plans, strategy, pricing, or financial information; (b) the terms of any Order Form; and (c) any other information that is designated as confidential by the Disclosing Party.  Confidential Information of Funmentum shall also include the Services.  Confidential Information does not include any information that is or was, at the time of the disclosure: (i) generally known or available to the public; (ii) rightfully disclosed to the Receiving Party by a third party; (iii) already in Receiving Party's possession prior to the date of receipt from Disclosing Party without restriction; or (iv) independently developed by the Receiving Party without reference to or use of Disclosing Party’s Confidential Information, provided in each case that such information was not obtained by the Receiving Party as a result of any unauthorized or wrongful act or omission, or breach of this Agreement, or breach of any legal, ethical or fiduciary obligation owed to the Disclosing Party.

At all times the Receiving Party shall: (1) use the same standard of care to protect the Confidential Information as it uses to protect its own confidential information of a similar nature, but not less than a commercially reasonable standard of care, (2) not use the Disclosing Party's Confidential Information other than as permitted under this Agreement, and (3) not disclose, distribute, or disseminate the Confidential Information to any third party, except to its employees, consultants, subcontractors, or advisors who have a need to know such Confidential Information for the purpose of performing under this Agreement and only to those who are obligated to maintain the confidentiality of such Confidential Information upon terms at least as protective as those contained in this Agreement. The Receiving Party may disclose Confidential Information to the extent required by law or court order. However, subject to applicable Law, the Receiving Party will give the Disclosing Party prompt notice, to allow the Disclosing Party a reasonable opportunity to obtain a protective order. In the event of a breach of this Section 6 (Confidentiality), the Disclosing Party may seek appropriate equitable relief in addition to any other remedy. 

  • Fees.
    1. Subscription Fees.  You will pay the fees in the amount and at the time specified in Order Form that incorporates or references this Agreement. Funmentum may make portions of the Services available on an automatically renewing subscription, per user, per product, basis (each, a “Subscription” for the Services) for recurring fees (“Subscription Fees”), as further set forth in the applicable Order Form.  We may add or amend Subscription Fees at our sole discretion by providing thirty (30) days' notice of such change to you; provided, however, unless prohibited by the Order Form, we agree that any changes to such Subscription Fees will be effective upon commencement of your next renewal term for such Subscription.  Your Subscription will automatically renew at the end of the term identified in your Order Form for subsequent terms equal in length to the initial term (the initial such term and each renewal term, a “Subscription Term”) unless and until you cancel your Services or it is suspended, discontinued or terminated in accordance with this Agreement.
    2. Payments.  When you purchase a Subscription to the Services, you acknowledge and agree that we and/or our third-party payment processors are authorized to charge you for, and that you are responsible for: (a) the Subscription Fees identified in the applicable Order Form; (b) sales, use, value-added withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of Funmentum; and (c) any other charges you may incur in connection with your purchase and use of the Services.  Any fees charged to you are exclusive of taxes. You acknowledge and agree that the amount billed may vary due to promotional offers, changes in the Subscription Fees in accordance with this Agreement, and/or changes in applicable taxes, and you authorize us to charge your payment method for the changed amounts. Funmentum uses a third party payment processor to process your payments for the Services. Your access to or use of certain payment services of a third party payment processor may be subject to, or require you to accept, additional terms and conditions. You should review those terms and conditions carefully. Funmentum is not responsible for the acts or omissions of the payment processor.

Except as otherwise set forth in an applicable Order Form, all Subscription Fees are immediately due and payable in advance at the start of each Subscription Term.  You agree to pay all Subscription Fees with your credit card, debit card, or other payment method.  You must provide us with a current, valid, accepted payment method.  When you initiate a payment transaction, you authorize us to provide your payment information to third parties so we can complete your transaction and charge your payment method in United States dollars. Any late payments shall be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less (plus the costs of collection).  If your payment is not successfully settled for any reason within fourteen (14) days after payment has been initiated for your transaction, your Subscription and access to the Services may be canceled or suspended in our sole discretion.

  1. Cancellation Procedure.  You may cancel your Subscription(s) at any time by emailing us at support@funmentum.com, however you remain liable for the Subscription Fees until the Subscription terminates at the end of the Subscription Term.  In order to cancel your Subscription, you must notify us in writing at least thirty (30) days before the start of the next Subscription Term. You will continue to have access to the Services through the end of the Subscription Term but without any right to a refund or credit for such remaining period of the Subscription Term.
  2. No Refunds.  SUBSCRIPTION FEES ARE NON-REFUNDABLE EXCEPT AS OTHERWISE EXPRESSLY AGREED IN WRITING.  YOU ACKNOWLEDGE AND AGREE THAT YOU WILL NOT BE REFUNDED FOR ANY UNUSED TIME IN YOUR SUBSCRIPTION TERM OR ANY PRE-PAYMENTS MADE FOR SERVICES IN THE EVENT THAT: (I) YOU CANCEL OR TERMINATE YOUR SUBSCRIPTION OR (II) WE SUSPEND OR TERMINATE YOUR SUBSCRIPTION OR THIS AGREEMENT FOR YOUR BREACH OF THIS AGREEMENT.
  1. Privacy and Security.  
    1. Privacy.  Your access to the Services is via the Funmentum website, which is owned and operated by Funmentum.  As such, your interaction with the Services and website, and any information that may be collected by the Services and website, is governed by the Privacy Policy and Data Processing Addendum, which may be updated from time to time.  You may choose to opt out of data collection and cookies in accordance with the Privacy Policy. You agree to receive announcements from Funmentum regarding the operation of the Services as well as marketing and other non-critical Service-related communications from time to time.
    2. Security of User Content.  Without limiting the following, Funmentum shall maintain commercially reasonable technical and organizational safeguards for protection of the security, confidentiality and integrity of User Content and Registration Data. Funmentum personnel will only access User Content and Registration Data subject to the confidentiality restrictions in Section 6 (“Confidentiality”) hereof, and with your consent or to the extent reasonably required (a) to perform the Services on your behalf; (b) to investigate or correct a system error or otherwise improve the Services; (c) to respond to duly authorized information requests of police, law enforcement, or other governmental authorities; (d) to comply with any applicable law, regulation, subpoena, discovery request or court order; (e) to investigate and help prevent security threats, fraud, or other illegal, malicious, or inappropriate activity; (f) to verify compliance with the provisions hereof; or (g) to enforce/protect the rights and properties of Funmentum.
  2. Representations & Warranties.  

Each party represents and warrants that this Agreement constitutes a valid and binding obligation and is enforceable against it in accordance with this Agreement.  

EXCEPT FOR THE EXPRESS WARRANTIES STATED IN THIS SECTION 9, FUNMENTUM DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER IMPLIED BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ERROR-FREE OR UNINTERRUPTED OPERATION, AND ANY REPRESENTATIONS OR WARRANTIES ARISING FROM A COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE.  WITHOUT LIMITING THE FOREGOING, FUNMENTUM MAKES NO WARRANTY THAT (I) THE SERVICES, THE USER CONTENT, OR ANY OTHER SERVICES OR DELIVERABLES PROVIDED HEREUNDER WILL MEET YOUR REQUIREMENTS OR OPERATE IN COMBINATION WITH ANY HARDWARE, SOFTWARE OR DATA NOT PROVIDED BY FUNMENTUM, (II) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE, RELIABLE OR ERROR-FREE, OR (IV) ANY ERRORS IN THE SERVICES, USER CONTENT, OR ANY OTHER SERVICES OR DELIVERABLES PROVIDED HEREUNDER WILL BE CORRECTED.  THE SERVICES, USER CONTENT, AND ANY OTHER SERVICES OR DELIVERABLES PROVIDED HEREUNDER ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITH ALL DEFECTS.  NO ORAL OR WRITTEN INFORMATION OR COMMUNICATIONS GIVEN BY FUNMENTUM, ITS EMPLOYEES, OR AGENTS WILL INCREASE THE SCOPE OF THE ABOVE WARRANTY OR CREATE ANY NEW OR ADDITIONAL WARRANTIES.

FUNMENTUM EXPRESSLY DISCLAIMS ALL LIABILITY IN RESPECT OF ACTIONS TAKEN OR NOT TAKEN BASED ON ANY USER CONTENT, MATERIAL, OR DATA OF OR IN CONNECTION WITH THE SERVICES.  ANY USER CONTENT, MATERIAL, OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOU RESULTING FROM THE USE OF THE SERVICES. THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE SERVICES REMAINS WITH YOU. FUNMENTUM DOES NOT ASSUME ANY RESPONSIBILITY FOR RETENTION OF ANY DATA, INCLUDING USER CONTENT AND USER DATA, USER INFORMATION, OR COMMUNICATIONS BETWEEN USERS. 

  1. Indemnity; Liability. 

You agree to indemnify, defend, and hold Funmentum and its officers, directors, employees, shareholders, members, consultants, licensors, suppliers and agents (“Indemnified Parties”) harmless from any and all losses, damages, liabilities, expenses, fines, penalties, and costs (including reasonable attorneys’ fees) (“Losses”) arising out of or resulting from any third-party claim, suit, action, or proceeding (“Third Party Claim”) arising from or related to (a) your or your Authorized User's use of the Services, (b) your or your Authorized User's actual or alleged breach of this Agreement or violation of applicable Law, (c) your or your Authorized User's actual or alleged infringement or violation of any Proprietary Rights or other right of any person or entity, (d) your relationship with your authorized User or any dispute between you and your authorized User, or (e) actual or alleged personal injury or property damage to a third party relating to your or your Authorized User's acts or omissions.

Funmentum shall indemnify, defend, and hold you harmless from and against any and all Losses incurred by you resulting from any Third Party Claim that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party's US intellectual property rights, provided that you promptly notify Funmentum in writing of such Third Party Claim, cooperate with Funmentum, and allow Funmentum sole authority to control the defense and settlement of such Third Party Claim. 

If a Third Party Claim is made or appears possible, you agree to permit Funmentum, at Funmentum's sole discretion, to (i) modify or replace the Services, or component or part thereof, to make it non-infringing, or (ii) obtain the right for you to continue use. If Funmentum determines that neither alternative is reasonably available, Funmentum may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to you. 

Funmentum's obligation under this Section will not apply to the extent that the alleged infringement arises from: (A) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Funmentum or authorized by Funmentum in writing; (B) modifications to the Services not made by Funmentum; or (C) User Content. THIS SECTION SETS FORTH YOUR SOLE REMEDIES AND FUNMENTUM'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.

TO THE EXTENT PERMITTED BY LAW, FUNMENTUM WILL NOT BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF PROFITS, LOSS OF REVENUES, DATA LOSS OR USAGE, OR LOSS OF OPPORTUNITIES, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL OR EQUITABLE THEORY, EVEN IF FUNMENTUM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES WERE FORESEEABLE.

TO THE EXTENT PERMITTED BY LAW, FUNMENTUM'S TOTAL LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT AND/OR THE SERVICES, IN THE AGGREGATE, REGARDLESS OF CAUSE OR THEORY OF RECOVERY, SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY YOU FOR THE SERVICES (IF ANY) IN THE TWELVE (12) MONTHS PRECEDING THE FIRST EVENT GIVING RISE TO SUCH LIABILITY OR CLAIMS.  

  1. Changes to Agreement.  

Funmentum may amend these Terms from time to time by posting the revised Terms on Funmentum's website and/or by providing written notice of such amendment to you (which notice may be provided via email to your contact listed is the Registration Data).  Any revisions to these Terms will take effect from the date of posting or notice to you, unless otherwise specified in such posting or notice.  You should check Funmentum's website frequently for any such revisions.  By continuing to access or use the Services after the posted effective date or notice of modifications to these Terms, you agree to be bound by the revised Terms. 

  1. Third Party Websites.  

The Funmentum Services may have links to third-party websites, content providers, advertisers, services, special offers, or other events or activities that are not owned or controlled by us.  We do not endorse or assume any responsibility for any of these third party websites, materials, products, or services.  If you access a third-party website from Funmentum Services, you do so at your own risk, and you understand that these Terms and our Privacy Policy and Data Processing Addendum do not apply to your use of those sites.  You relieve Funmentum from any and all liability arising from your use of third-party websites, services, or content.

  1. Export Control and Economic Sanctions Compliance.  

Each party represents that it is not named on any U.S. government list of prohibited or restricted parties, nor is it owned or controlled by or acting on behalf of any such parties. You agree that neither you or your Authorized Users will access or use the Services in any manner that would cause any party to violate any U.S. or international embargoes, economic sanctions, or export controls laws or regulations.

  1. Evaluation.  

If you are using the Funmentum Services during a proof of concept or other product trial (“Evaluation”), your use of the Services during the Evaluation period is governed by these Terms.  Notwithstanding any other provisions in these Terms, access to the Services during an Evaluation period is on an “as-is” basis without any representations, warranties and/or conditions of any kind.  Any data or content uploaded to the Services by you may be permanently lost upon expiry of the Evaluation period.  If you continue to use the Services after the conclusion of the Evaluation period, you understand that these Terms will also govern your ongoing use of those Services.  Funmentum will have no liability for any harm or damage arising out of or in connection with Evaluation of the Services.

  1. General Provisions.  
    1. Relationship of the Parties.  The relationship of the parties under these Terms is one of independent contractors and does not create an agency, partnership, franchise, joint venture, fiduciary or employment relationship between the parties. 
    2. Force Majeure.  Neither party shall be in default if its failure to perform or delay in performing any obligation under these Terms (other than payment obligations) is caused by any condition beyond the party's reasonable control, including but not limited to governmental action or acts of terrorism, earthquake, fire, flood, or other acts of God, labor conditions, power failures, equipment failures, or Internet disturbances.
    3. Assignment.  Neither party may assign this Agreement, in whole or in part, without the other party's prior written consent, not to be unreasonably withheld; provided, however, that Funmentum may assign this Agreement without your consent to any entity that acquires all or substantially all of the business or assets of Funmentum, whether by merger, reorganization, acquisition, sale, operation of law, change in control or otherwise.  Any assignment made in conflict with this provision shall be void.  This Agreement is binding upon and will inure to the benefits of each of the parties and their respective successors and assigns.  Nothing in these Terms is intended or shall be construed to give any person, other than the parties hereto, their successors and permitted assigns, any legal or equitable right, remedy or claim under or in respect to this Agreement.
    4. Waiver.  No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right unless expressly acknowledged and agreed to by both parties in writing.  A waiver of rights under this Agreement will not be effective unless it is in writing and signed by an authorized representative of the party that is waiving the rights.  Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
    5. Execution; Severability.  If any provision of this Agreement, or portion thereof, is found to be invalid, unlawful or unenforceable to any extent, such provision shall be replaced with another provision consistent with the purpose and intent of this Agreement, and the remaining provisions of this Agreement shall remain in effect.  In the case of any conflict or inconsistency between the provisions of an Order Form authorized and agreed to by Funmentum and the provisions of these Terms, the applicable Order Form controls and governs over these Terms, to the extent necessary to resolve the particular conflict or inconsistency only.
    6. Governing Law and Jurisdiction.  Both parties agree to (a) the application of the laws of the State of California, United States, without regard to conflict of law principles and (b) the exclusive jurisdiction and venue in the state or Federal courts located in San Francisco, California. The United Nations Convention on Contracts for the International Sale of Goods does not apply to transactions under the Agreement.
    7. Jury Trial Waiver.  YOU AND FUNMENTUM HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. YOU AND FUNMENTUM ARE INSTEAD ELECTING THAT ALL DISPUTES SHALL BE RESOLVED PURSUANT TO THE TERMS OF THIS AGREEMENT.
    8. Copyright Policy. Funmentum respects the intellectual property of others and asks that users of our Services do the same.  In connection with our Services, we have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of users of our online Services who are repeat infringers of intellectual property rights, including copyrights.  If you believe that one of our users is, through the use of our Services, unlawfully infringing the copyright(s) in a work, and wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c)) must be provided to our designated Copyright Agent:
  1. your physical or electronic signature;
  2. identification of the copyrighted work(s) that you claim to have been infringed;
  3. identification of the material on our services that you claim is infringing and that you request us to remove;
  4. sufficient information to permit us to locate such material;
  5. your address, telephone number, and e-mail address;
  6. a statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and
  7. a statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner.

 

Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement.

 

The designated Copyright Agent for Funmentum is: Support

Address of Agent:1839 Ygnacio Valley Rd., #123, Walnut Creek, CA 94598

Telephone: 415.378.2263

Email:  support@funmentum.com

 

  1. Notice. Funmentum may give notice to you by (a) electronic mail to your email address on record in your account information, (b) written communication sent by letter delivered by a nationally recognized overnight delivery service, or (c) first-class postage prepaid mail to your address on record in your account information. You are responsible for ensuring that your email address and property address on record are current. You agree that any notice sent to the then-current email or property address in our systems is adequate and binding notice upon you. You will provide notice to us (such notice is deemed given when received by Funmentum) by letter delivered by a nationally recognized overnight delivery service or first-class postage prepaid mail to Funmentum at “Funmentum Labs, Inc., 2645 San Benito Dr., Walnut Creek, CA 94598.”
  2. Publicity Rights.  Funmentum may include your name and logo in Funmentum's online customer list and in print and electronic marketing materials.
  3. Entire Agreement.  This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes and replaces any prior or contemporaneous representations, understandings and agreements, whether written or oral, with respect to its subject matter. Notwithstanding any language to the contrary therein, no terms or conditions stated in a purchase order, vendor onboarding process and documentation, or web portal shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
  4. Contact.  If you have any questions about these Terms, please contact us at  support@funmentum.com.