Date of Last Revision: November 7, 2018
PLEASE READ THESE TERMS CAREFULLY. By clicking “I AGREE” or otherwise accessing or using any of AnswerDash’s online services, including the AnswerDash Offering (defined below) you or the organization you represent is entering into a binding, legally enforceable agreement with us. If you do not agree to these terms, click "I DO NOT AGREE" or exit this web page and do not access or use any of AnswerDash’s online services. By entering into an agreement with us you represent and warrant that you are of legal age to form a binding contract with us.
1. ANSWERDASH OFFERING.
1.1 Product Description. AnswerDash, Inc., a Delaware corporation (including its successors, assigns, affiliated companies and/or licensors, all collectively referred to as "AnswerDash," "we," "our," or "us"), offers proprietary online services that, among other things, (a) support contextual "question and answer" interaction on third-party websites and (b) enable third-party web administrators to monitor, manage, curate and create content to enhance user experience on their websites. For purposes of these TOU, such AnswerDash services are referred to, collectively, as the "AnswerDash Offering."
1.3 Additional Services. Technical support services beyond those typically provided to activate and support your Account (e.g., Account customization) are outside the scope of this Agreement. If you request, and we agree to provide, additional support services, such services will be memorialized in a separate written agreement and subject to additional, mutually agreed upon terms.
2. RIGHTS, LICENSES AND USE RESTRICTIONS.
2.1 AnswerDash Proprietary Rights. You acknowledge and agree that the AnswerDash Offering, collectively and each of its individual components, are proprietary to AnswerDash and protected under applicable intellectual property and related laws.
2.2 License to AnswerDash Offering. The AnswerDash Offering is licensed, not sold. AnswerDash grants you a limited, non-exclusive, non-transferable, non-sublicensable right and license under its intellectual property rights in and to the AnswerDash Offering to:
1. internally access and use your Account for the sole purpose of supporting end user interaction on those website(s) or web application(s) you own, operate or control ("Your Site");
2. publicly perform, reproduce and display the "Question & Answer" user interface overlay ("Q&A Overlay") on Your Site;
3. publicly perform, reproduce and display the AnswerDash proprietary trademarks, service marks, logos, images and any other attribution of AnswerDash ownership ("Marks") as displayed in the Q&A Overlay or as otherwise provided as part of the AnswerDash Offering;
4. enable end users of Your Site to interact with the Q&A Overlay; and
5. use any additional AnswerDash tools (including any updates or bug fixes thereto) that may be made available by AnswerDash from time to time during the Term solely for the purpose of exercising the rights granted in Section 2.2 (1) through (4), above.
All rights not expressly granted in this Section 2.2 are reserved.
2.3 License Conditions. You will ensure that your Account is used lawfully for your own, legitimate business purposes and in a manner that does not compromise the security, integrity or proper functionality of any AnswerDash Offering. By way of example and not limitation, you may not (directly or through a third party):
1. transfer, sell or attempt to sell rights to access or use your Account;
2. use your Account or any component of the AnswerDash Offering in connection with any website or web application that is not Your Site, including any third party services or other online offerings;
3. introduce (manually or by any automated means) any virus, worm, trap door, back door, “spyware,” “malware,” or other software or executable into your Account or the AnswerDash Offering;
4. use your Account or any component of the AnswerDash Offering for the purpose of developing a product or service that competes directly or indirectly with any AnswerDash product or service offering;
5. access, or attempt to access, any data, service or systems in the AnswerDash Offering that are not offered or supported in your Account;
6. alter, remove or modify any Marks; or
7. use the AnswerDash Offering in any manner prohibited by law, regulation or treaty.
2.4 Takedown Rights. You acknowledge that (in addition to any other available rights or remedies) AnswerDash may suspend, modify, restrict or terminate access to any or all of your Account, with or without prior notice, in the event of any breach of this Section 2.
3. DATA; COLLECTION AND USE.
3.1 Your Data. All content, information and data generated by you or end users of Your Site is referred to herein as "Your Data." Your Data includes, without limitation, end user questions, comments, feedback and answers submitted to Your Site using the Q&A Overlay, answers to such questions prepared by you or on your behalf and displayed within the Q&A Overlay, and any other text, information or messages that may be exchanged between you and your users via the Q&A Overlay. For clarity, Your Data does not include the underlying tools or enabling technologies provided as part of the AnswerDash Offering to generate and manage Your Data, such as the Q&A Overlay.
3.2 Ownership. You retain all ownership rights in and to Your Data. As between you and us, you are solely responsible for Your Data. Without limitation, you are responsible for the accuracy, relevancy and timeliness of Your Data, as well as curating and selecting Your Data for publication on Your Site. You are also responsible for securing all rights and permissions needed for AnswerDash to use Your Data as contemplated herein.
3.3 Use of Your Data. AnswerDash collects and uses Your Data in the AnswerDash Offering for purposes of supporting your Account. AnswerDash does not make Your Data available to any third party unless you give us prior permission to do so. Although we will temporarily store Your Data as reasonably necessary to support your Account, we do not permanently store or archive Your Data. You, and not AnswerDash, are solely responsible for making, maintaining and storing any archival versions of Your Data.
3.4 Personally Identifiable Information; Aggregated Data. AnswerDash does not retain or store personally identifiable information about individual end users of Your Site. AnswerDash does collect and aggregate general information about user behavior in your Account, such as end user usage data and frequently asked questions. AnswerDash may use this non-personally identifiable information for any purpose.
3.5 Feedback. From time to time, you may be separately asked to provide AnswerDash information about your experience using the AnswerDash Offering. Any feedback or suggestions you might have to improve the features and functionality of any AnswerDash Offering is voluntary. Any feedback provided may be used or disclosed by AnswerDash in its sole discretion and you grant us and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns the right to use, reproduce, modify, perform, display, distribute, and otherwise disclose to third parties any such feedback or suggestions for any purpose.
4. END USER RELATIONSHIP; EULA.
You acknowledge and agree that, as between you and us, you are solely responsible for entering into, managing and enforcing all end user relationships for Your Site, including end user license agreements ("End User Terms"). End User Terms will not conflict with this Agreement or misrepresent the nature of our relationship. In no event will End User Terms grant, or purport to grant, rights or remedies that exceed the scope of those made available to you under this Agreement. For the avoidance of doubt, AnswerDash will not be deemed a party, third party beneficiary of, or third party obligor to, End User Terms.
5.1 Fees. You agree to pay the Account subscription fees for your Account identified on the AnswerDash website when you select a subscription plan or otherwise communicated to you in writing ("Fees"). Fees are denominated and payable in United States dollars. Base subscription Fees are charged monthly in advance and additional fees (for example, Fees arising from usage of the AnswerDash Offering in excess of the usage covered by your base subscription Fees) are charged monthly in arrears. If you have not previously used the AnswerDash Offering, AnswerDash may provide a free trial for such number of days as is identified on the AnswerDash website when you select a subscription plan (a “Free Trial”). If you are given a Free Trial your first Fees will be due at the end of the Free Trial and will be charged automatically unless you cancel your subscription prior to that date. In all other cases, your first Fees will be due when you subscribe. All Fees paid are nonrefundable. All Fees are payable by credit card only, as further described in Section 5.4.
5.2 Surcharges. Fees are exclusive of any applicable sales, use, excise, import or export taxes, duties, value-added taxes, tariffs or similar surcharges (“Surcharges”). In the event AnswerDash is required by law to withhold Surcharges on your behalf, AnswerDash may pay such Surcharges to the authorized taxing authority and, upon demand, you agree to reimburse AnswerDash for amounts paid.
5.3 Collection. You agree to reimburse AnswerDash for any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred to collect any Fees or Surcharges not paid when due.
5.4 Payment Processing. You acknowledge and agree that AnswerDash uses a third-party payment processor for all credit card transactions. Payments made via credit card are subject to the terms and conditions of such payment processors as well as the terms of your own banking institution or credit card provider. You hereby authorize AnswerDash and its third-party payment processing provider to charge your credit card monthly for all applicable Fees. You agree to provide us with accurate and timely credit card information. In the event that we are unable to charge Fees to the credit card provided, and you do not provide us with another valid credit card prior to the end of your then current monthly subscription, then your ability to access and use your Account will be suspended or terminated in AnswerDash’s sole discretion.
5.5 Account Suspension. Fees payable to AnswerDash shall continue to accrue during any period of Account suspension. Amounts due must be paid in full as a condition precedent to Account reactivation, which reactivation will be in AnswerDash's sole discretion.
6. CONFIDENTIAL INFORMATION.
For purposes of this Agreement, "Confidential Information" means any non-public, commercially sensitive information provided by a party under this Agreement to the other party and designated as "Confidential." AnswerDash Fees and payment terms are confidential information of AnswerDash. Unless expressly authorized in writing by the other party, neither party shall disclose to any third party any Confidential Information of the other party, nor use such Confidential Information in any manner other than to perform its obligations under this Agreement. The foregoing restrictions do not apply to any information that (a) is publicly disclosed through no fault of the receiving party, (b) is already lawfully in the receiving party's possession and not subject to a confidentiality obligation to the disclosing party, (c) becomes known to the receiving party from a third party having an apparent bona fide right to disclose the information, (d) is Confidential Information that the receiving party is obligated to produce pursuant to an order of a court of competent jurisdiction or a valid administrative subpoena, provided receiving party supplies disclosing party with timely notice of such court order or subpoena, or, (e) in the event you are a government agency, is subject to disclosure under federal or state laws governing public access to information (commonly known as "Sunshine laws"), but only to the extent expressly required by such Sunshine laws.
7. FORCE MAJEURE.
Neither party will be responsible for any delay, interruption or other failure to perform under this Agreement due to acts beyond its reasonable control, but only for so long as such conditions persist. Force majeure events include, but are not limited to: natural disasters (e.g., lightning, earthquakes, hurricanes, floods); wars, riots, terrorist activities, and civil commotions; activities of local exchange carriers, telephone carriers, wireless carriers, Internet service providers, and other third parties; explosions and fires; embargoes, strikes, and labor disputes; governmental decrees; and any other cause beyond the reasonable control of a party.
8. TERM AND TERMINATION.
8.1 Term. This Agreement will begin on the date you accept these TOU (the "Effective Date") and continue until terminated pursuant to Section 8.2.
8.2 Termination. Either party may terminate this Agreement for any reason or for no reason, with or without notice. In the event of termination by you pursuant to this Section 8.2 (i) such termination will take effect when your then current monthly subscription expires; (ii) you will not be entitled to a refund of any Fees and will remain liable for any unpaid Surcharges that accrued prior to termination; and (iii) you may continue to access your Account and use the AnswerDash Offering until such termination takes effect. In the event that we terminate this Agreement pursuant to this Section 8.2 without notice, or give notice for a period ending before your then current monthly subscription expires, we may, in our absolute discretion, refund a pro-rated portion of any Fees or Surcharges paid by you for the month in which such termination occurs. In no event will we refund any Fees or Surcharges where we terminate for cause. You may effect a termination of this Agreement by cancelling your then current monthly subscription via your Account. This Agreement will continue in full force and effect and Fees and Surcharges will continue to accrue until a termination by either party becomes effective, notwithstanding your failure to use the AnswerDash Offering or access your Account.
8.3 Post-termination Obligations. Upon expiration or termination of this Agreement for any reason, you will no longer have access to your Account. AnswerDash will have no obligation to retain, return or otherwise deliver to you any of Your Data submitted to your Account at any time during the Term.
9. NO WARRANTY.
9.1 Acknowledgement. You acknowledge and agree that your Account and the AnswerDash Offerings are provided on an “as is” and an “as available” basis. Without limiting the foregoing, we will not be liable if for any reason all or any part of the AnswerDash Offering is unavailable at any time or for any period including, without limitation, in the case of scheduled downtime or maintenance.
9.2 Disclaimer. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, ERROR-FREE PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE, TITLE, SATISFACTORY RESULTS, SECURITY, ACCURACY OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY ANSWERDASH, ITS SUPPLIERS AND ITS LICENSORS.
9.3 Assumption of Risk. YOU ACCESS AND USE YOUR ACCOUNT, THE ANSWERDASH OFFERING, ANY SPECIFIC ANSWERDASH FEATURE OR FUNCTIONALITY OR ANY THIRD-PARTY OFFERING AT YOUR SOLE RISK. WITHOUT LIMITATION, YOU ACKNOWLEDGE AND AGREE TO THE FOLLOWING:
AnswerDash Offerings may not meet your requirements or business objectives.
AnswerDash Offerings require connection to the Internet. Access may be interrupted, delayed or subject to security breaches.
AnswerDash is not responsible for any disruptions or other failures of any AnswerDash Offering that are beyond its reasonable control.
AnswerDash does not guarantee that the AnswerDash Offering is appropriate or available for use in any particular location. You are responsible for compliance with any applicable local laws and regulation, as well as any U.S. import/export regulations.
AnswerDash reserves the right to modify the AnswerDash Offering for any reason, without notice and without liability to you, including any individual end user.
10. LIABILITY LIMITATION; EXCLUSIVE REMEDY.
10.1 No Indirect Damages. IN NO EVENT SHALL ANSWERDASH, ITS SUPPLIERS OR SERVICE PROVIDERS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF, OR IN ANY WAY CONNECTED WITH, ACCESS TO YOUR ACCOUNT OR USE OF ANSWERDASH OFFERINGS, WHETHER BASED ON A THEORY OF NEGLIGENCE, CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.2 Exclusive Remedy; Damage limitation. YOUR EXCLUSIVE REMEDY AND OUR TOTAL AGGREGATE LIABILITY RELATING TO, ARISING OUT OF, IN CONNECTION WITH, OR INCIDENTAL TO THIS AGREEMENT, WHETHER FOR BREACH OF CONTRACT, BREACH OF WARRANTY OR ANY OTHER CLAIM SHALL BE LIMITED TO THE ACTUAL DIRECT DAMAGES INCURRED BY YOU, UP TO THE GREATER OF (A) $50.00 OR (B) 100% OF AMOUNTS PAID BY YOU AND RECEIVED BY ANSWERDASH HEREUNDER. THE EXISTENCE OF MULTIPLE CLAIMS OR SUITS UNDER OR RELATED TO THIS AGREEMENT WILL NOT ENLARGE OR EXTEND THIS LIMITATION OF DAMAGES. YOU HEREBY RELEASE ANSWERDASH, ITS SUPPLIERS AND LICENSORS FROM ALL OBLIGATIONS, LIABILITY, CLAIMS OR DEMANDS IN EXCESS OF THIS LIMITATION. THE PROVISIONS OF THIS SECTION DO NOT WAIVE OR LIMIT ANSWERDASH'S ABILITY TO OBTAIN INJUNCTIVE OR OTHER EQUITABLE RELIEF FOR BREACH OF THIS AGREEMENT. THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
10.3 Risk Allocation. You agree that the limitations of liability in this Section 10 reflect a fair allocation of risk between us. The limitations specified in this section will survive and apply even if any limited remedy specified in these terms is found to have failed its essential purpose.
11.1 Indemnification of AnswerDash. You agree to defend and indemnify AnswerDash and its suppliers, officers, directors, employees and agents from and against any claims, causes of action, demands, recoveries, losses, damages, fines, penalties or other costs or expenses of any kind or nature, including but not limited to reasonable legal and accounting fees, brought by third parties as a result of (a) your breach of this Agreement, (b) Your Data or (c) your violation of any law or the rights of a third party.
11.2 Indemnification of You. AnswerDash agrees to defend and indemnify you against any claims, causes of action, demands, recoveries, losses, damages, fines, penalties or other costs or expenses of any kind or nature, including but not limited to reasonable legal and accounting fees, brought by third parties claiming that the use of the AnswerDash Offering as permitted hereunder infringes or misappropriates the U.S. intellectual property rights of a third party ("Third Party Claim") provided that you (i) promptly provide written notice of the Third Party Claim; (ii) give AnswerDash the sole control of the defense and settlement of the Third Party Claim (provided that we may not settle any Third Party Claim unless the settlement unconditionally releases you of all liability); and (iii) render unto AnswerDash all reasonable assistance, at AnswerDash’s expense. In the event of a Third Party Claim, or if we believe that the AnswerDash Offering may infringe or misappropriate any U.S. intellectual property right, we may, in our sole discretion and at no cost to you, (a) modify the AnswerDash Offering so that it no longer infringes or misappropriates, (b) obtain a license for you to continue to use the AnswerDash Offering, or (c) terminate your license upon 30 days’ prior written notice and refund to you any prepaid fees covering the remainder of the term of the AnswerDash Offering after the effective date of termination. The foregoing states AnswerDash’s sole liability to, and your sole remedy for, the claims described herein. This Section 11.2 is subject to the limitations on liability set forth in Sections 10.1 and 10.2 and nothing in this Section 11.2 is intended to limit or restrict the effect of Sections 10.1 and 10.2.
12. ARBITRATION AND WAIVER OF JURY TRIAL.
12.1 Any controversy or claim arising out of or relating to this Agreement shall be settled by binding arbitration before a single arbitrator in accordance with the JAMS Streamlined Arbitration Rules. The decision of the arbitrator shall be final and unappealable. The arbitration shall be conducted in Seattle, Washington, unless the parties mutually agree otherwise, and judgment on the arbitration award may be entered into any court having jurisdiction thereof. Notwithstanding the foregoing, we may seek injunctive or other equitable relief to protect our intellectual property rights in any court of competent jurisdiction.
12.2 If either AnswerDash or you want to arbitrate a dispute, AnswerDash and you each agree to send written notice to the other providing a description of the dispute, previous efforts to resolve the dispute, all supporting documents/information, and the proposed resolution. Notice to you will be sent to the billing address that you have provided us and notice to us will be sent to: 999 3rd Avenue, Suite 700, Seattle, WA 98104. AnswerDash and you each agree to make attempts to resolve this dispute within forty-five (45) days of receipt of the notice to arbitrate. Thereafter, either AnswerDash or you may submit the dispute to formal arbitration.
12.3 Both you and AnswerDash each agree not to pursue arbitration on a consolidated or classwide basis. Both you and AnswerDash each agree that any arbitration will be solely between you and AnswerDash (not brought on behalf of or together with another individual's claim). If for any reason any court or arbitrator holds that this restriction in unconscionable or unenforceable, then this agreement to arbitrate does not apply and the dispute must be brought in court.
12.4 NO CLASS ACTIONS. TO THE EXTENT ALLOWED BY LAW, YOU WAIVE ANY RIGHT TO PURSUE DISPUTES ON A CONSOLIDATED OR CLASSWIDE BASIS; THAT IS, TO EITHER JOIN A CLAIM WITH THE CLAIM OF ANY OTHER PERSON OR ENTITY, OR ASSERT A CLAIM IN A REPRESENTATIVE CAPACITY ON BEHALF OF ANYONE ELSE IN ANY LAWSUIT, ARBITRATION, OR OTHER PROCEEDING.
12.5 NO TRIAL BY JURY. TO THE EXTENT ALLOWED BY LAW, WE EACH WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY LAWSUIT, ARBITRATION, OR OTHER PROCEEDING.
13.1 Governing Law and Jurisdiction. This Agreement will be construed according to the substantive law, but not the choice of law rules, of the State of Washington and of applicable federal law of the United States. In the event of any dispute arising under this Agreement that is not subject to arbitration hereunder, you hereby consent to the exclusive jurisdiction and venue of courts in King County, Washington, USA.
13.2 Relationship of Parties. You agree that no joint venture, partnership, franchise, agency or employment relationship exists between you and us as a result of this Agreement or your use of the AnswerDash Offerings.
13.3 Public Announcements. You hereby agree that we may identify you as a customer of AnswerDash on our websites and in our other marketing materials. You hereby grant us a license to display your company name and logo in connection therewith.
13.4 Time Limitation for Claims. You agree that you will bring any claim or cause of action arising from or relating to your access or use of AnswerDash Offerings within 1 year from the date on which such claim or action arose or accrued or such claim or cause of action will be irrevocably waived.
13.5 Construction. If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law or the warranty disclaimers and liability limitations set forth in Section 9 and Section 10 above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision, and this Agreement shall continue in effect.
13.6 Assignment. You cannot assign or transfer this Agreement to anyone without the prior written approval of AnswerDash, which approval will not be unreasonably withheld or delayed. AnswerDash may assign or transfer this Agreement, or delegate its duties hereunder, upon written notice to you.
13.7 No Waiver. The failure of AnswerDash to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision, or of any other right or remedy that may be available under applicable law.
13.8 Entire Agreement. This Agreement constitutes the entire agreement between you and AnswerDash with respect to your Account and the AnswerDash Offering, and this Agreement supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between you and us with respect to the AnswerDash Offering.
13.9 Survival. Confidentiality obligations, disclaimers of warranty, limitations of liability and indemnification provisions, any obligation to pay unpaid Fees or Surcharges shall survive expiration or termination of this Agreement, as well as the provisions of this Section 13.