Terms of Services Agreement

Background

Yoxel, Inc., a Florida corporation ("YOXEL", “us”, or “we”), provides a messaging-based email service and productivity app called Pebbles (the “Service” or “Pebbles”), designed to enable users of third party messaging platforms, i.g. Slack, (each, “Third-Party Platform”) to send, receive emails, and organize conversations. This Terms of Service document (this “Agreement”) sets forth the terms and conditions pursuant to which we will provide you, as an end user of Pebbles, with access to Pebbles. If you are an end user whose organization has invited you to use Pebbles as part of their team, your use of Pebbles is also governed by this Terms of Service document.

Acceptance

By using Pebbles or responding to any chat or message received via Pebbles, you agree to be bound by this Agreement as of that date (the “Effective Date”). YOUR ACCESS TO, AND USE OF, THE SERVICE AND YOXEL’s OBLIGATIONS WITH RESPECT THERETO ARE EXPRESSLY CONDITIONED ON YOUR ACCEPTANCE OF THIS AGREEMENT, INCLUDING ARBITRATION ON AN INDIVIDUAL BASIS IN SECTION 18.

1. Provision of the Service. During the Term and subject to the terms and conditions of this Agreement, YOXEL will use commercially reasonable efforts to provide you with access to Pebbles on a non-exclusive basis. You acknowledge and agree that we are a technology provider and are not responsible for any communications you send or receive and have no control over the content of such communications.
2. Representations About You. As a condition to using Pebbles, you represent and warrant that: (a) you have read and understand this Agreement, (b) you are 18 years of age or older, (c) the information that you provide to us about you or your account will be current, true, accurate, supportable and complete, (d) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and (e) you are not listed on any U.S. Government list of prohibited or restricted parties.
3. Restrictions. Except as expressly permitted herein, you may not: (a) rent, lease, lend, sell, redistribute, or sublicense the Service; (b) modify, disassemble, de-compile, reverse engineer, or otherwise attempt to derive the source code of the Service or knowingly permit or encourage any third party to do so (except as and only to the extent that any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open-sourced components included with the Service), (c) use the Service in any manner to provide service bureau, time-sharing or other computer services to third parties, (d) use the Service, or allow the transfer, transmission, export, or re-export of the Service or portion thereof in violation of any export control laws or regulations administered by any government agency, or (e) resell, distribute or otherwise transfer the Service, and code comprising the same, or any YOXEL trademark, logo or likeness. You may not use the Service for any use other than its intended use.
4. Third-Party Platforms. In order to enable the provision of the Service, You must have one or more valid and verifiable accounts with the applicable Third-Party Platform(s) (i.g. Slack, Gmail, Office 365) and agree to abide by any terms that govern the use of such Third-Party Platforms (”Third-Party Terms"). You represent and warrant that your Third-Party Platform account(s) is in good standing and that your use of the Service will not be in violation of any applicable Third-Party Terms.
5. Free Account. There is no charge to create an account. However, to use certain features or functionality of the Service, including transmitting a certain amount of Content (defined below) to Third-Party Platforms, you may be required to pay a fee.
6. Ownership. Except as noted herein, YOXEL shall own and retain ownership of all right, title, and interest in and to (a) the Service, (b) any ideas, suggestions, or feedback relating to the Service (“Feedback”), (c) all and all modifications or derivative works to any of the foregoing, and (d) and all intellectual property rights embodied within any of the foregoing. You hereby irrevocably assign all of your right, title, and interest in and to any Feedback to YOXEL.
7. Content and Privacy. You may input or upload text, images, photos, videos, sounds, links, works of authorship, or other materials to the Service (collectively, “Content”). We do not claim ownership of your Content. By posting or sharing the Content, you grant to us only the limited rights that are reasonably necessary for us to provide the Service. You expressly agree that by sharing Content via the Service, we have the right to provide that Content to Third-Party Platforms and to individuals with whom you communicate via the Service. You represent and warrant that: (a) you own your Content or otherwise have the right to grant the license set forth in this section, and (b) transmitting Your Content on or through the Service does not violate the privacy rights, publicity rights, copyrights, trademark rights, contract rights or any other rights of any person or entity. You shall only collect, process, use, store, disclose and transfer Content in compliance with any applicable Third-Party Terms and privacy policies. YOU ACKNOWLEDGE THAT WE ARE NOT LIABLE FOR ANY TRANSMISSION OF CONTENT (INCLUDING WITHOUT LIMITATION PERSONALLY IDENTIFIABLE INFORMATION) IN VIOLATION OF THIRD-PARTY TERMS, PRIVACY SETTINGS OR PRIVACY POLICIES. You acknowledge that YOXEL does not have any control over the Content that passes through YOXEL’s systems and networks through the Service. YOXEL is not responsible for monitoring your Content, and collects such Content automatically under you direction when providing the Service to you. We may, but do not have any obligation to, remove any of the Content from the Service in our sole discretion, including if we determine that it may violate another person’s intellectual property rights, this Agreement, any applicable Third-Party Terms, or applicable law. You acknowledge that YOXEL will have access to the Content as it is being transmitted via the Service to the applicable Third-Party Platform and may need to translate, reformat, re-tag, group or otherwise modify technical elements of the Content to make it more appropriately visualized in the applicable Third-Party Platform or otherwise conform to the specifications of a Third-Party Platform. You hereby represent that you have obtained, and during the Term covenants that you will obtain, all necessary rights and consents to allow YOXEL to collect, process, use, store, disclose and transfer Content. YOXEL’s provision of the Service to you is specifically conditioned upon you obtaining such consents and approvals. For more information regarding YOXEL’s collection, use and sharing of information, please see our Privacy Policy, which is hereby incorporated into and governed by this Agreement. It is your sole responsibility to back-up your Content. You acknowledge and agree that after termination of this Agreement, you may not have access to the Content via the Service.
8. Data Ownership. We may collect usage data, meta data, performance data and other data related to how you use and interact with the Service, including information verifying whether Content was successfully transmitted via the Service to the intended Third-Party Platform (“Usage Data”), provided that such Usage Data will be aggregated, anonymized and will not identify you as the source of such Usage Data. To the extent we collect or generate Usage Data, it will be owned by us and we may use it for any lawful purpose.
9. Data Privacy Laws. You acknowledge and agree that the Service stores data on servers in the U.S. or any other country in which YOXEL or its affiliates, subsidiaries, agents or contractors maintain facilities. You agree, without YOXEL’s prior written consent, not to provide YOXEL with any Content or other data that: (i) could be deemed “sensitive personal data” under the EU Data Protection Directive 95/46/EC, (ii) is subject to the laws of any jurisdiction, or (iii) subject to the requirements of any industry or standards setting organization, in each case that would subject such data to heightened restrictions related to the storage, security, transmission and processing of such data (including without limitation data subject to the requirements of the Health Insurance Portability and Accountability Act (HIPAA), the PCI Security Standards Council (PCI-DSS) or the Children’s Online Privacy and Protection Act (COPPA)). You shall comply with all applicable laws, rules, regulations, requirements and standards, including without limitation all obligation imposed upon you under any applicable data privacy laws, rules, regulations, requirements or standards.
10. Maintenance. Unless otherwise provided in any applicable Enterprise Terms, YOXEL has no obligation to provide you with any support with respect to the Service. Scheduled system maintenance will take place from time to time, and during such time, updates to the Service or elements thereof may be unavailable. Emergency maintenance may be required at other times in the event of system failure.
11. Term and Termination. Unless earlier terminated, this Agreement will commence on the Effective Date and will continue unless terminated in accordance with the terms hereof. You may cancel your access to the Service at any time by contacting YOXEL. In addition, YOXEL may terminate this Agreement immediately for any reason, including if it ceases to support the Service or if you are in material breach of any term of this Agreement. YOXEL reserves all rights and remedies available under law or equity, including the right to seek damages and injunctive relief for breach or threatened breach of this Agreement.
12. Effect of Termination. Upon termination of this Agreement, you shall immediately cease all use of and all access to the Service. Sections 3, 11-21 shall survive any termination or expiration. All other rights and obligations shall be of no further force or effect. Upon termination of this Agreement, you will not have access to any Content or other data associated with your account.
13. Warranty Disclaimer.
    • TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND WE HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT THERETO, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND OF NONINFRINGEMENT OF THIRD-PARTY RIGHTS. WE DO NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SERVICE, THAT THE FUNCTIONS CONTAINED IN OR PERFORMED OR PROVIDED BY THE SERVICE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SERVICE WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE THAT WE GIVE SHALL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY.
    • Without limiting the generality of the foregoing, YOXEL makes no warranty, expressed or implied, regarding accuracy, adequacy, completeness, legality, readability, reliability or usefulness of any Content that is transmitted, formatted or translated via the Service, even where Content has been translated, reformatted, re-tagged or otherwise subjected to technical modifications pursuant to Section 7. The foregoing disclaimer applies to both isolated and aggregate processing, transmission and uses of Content. You acknowledge that electronic data in transmission may be altered during and subsequent to original distribution.
14. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL YOXEL BE LIABLE FOR (a) PERSONAL INJURY OR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SERVICE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF YOXEL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (b) ANY DAMAGES WHATSOEVER ARISING OUT OF TRANSACTIONS YOU CONDUCT WITH THIRD PARTIES THROUGH THE SERVICE. IN NO EVENT SHALL YOXEL’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY CAUSED BY YOXEL) EXCEED THE GREATER OF (I) THE TOTAL AMOUNT THAT YOU PAID FOR THE SERVICE, IF ANY, IN THE MONTH PERIOD PRECEDING THE APPLICABLE CLAIM, OR (II) $50.00. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU.
15. Compliance with Law. To the extent you choose to use the Service, you agree to comply with any applicable laws, including but not limited to applicable local laws. You may not use or otherwise export or re-export it except as authorized by United States law and the laws of the jurisdiction in which the Service was accessed. 16 Interactions with Others. The Service facilitates communications between individuals via email across Third-Party Platforms. YOU ARE SOLELY RESPONSIBLE FOR YOUR INTERACTIONS WITH OTHERS AND AGREE THAT YOXEL WILL NOT BE LIABLE FOR ANY CLAIMS ARISING OUT OF ANY INTERACTIONS WITH THIRD PARTIES ENABLED VIA THE SERVICE, INCLUDING WITHOUT LIMITATION DAMAGES RELATING TO PERSONAL INJURY OR DESTRUCTION OF PROPERTY. YOXEL may, but is not obligated to, monitor or resolve disputes among individuals communicating via Pebbles.
16. Arbitration. Any dispute, controversy or claim arising out of this Agreement will be settled by binding arbitration pursuant to the Commercial Rules (or Consumer Rules, to the extent applicable) of the American Arbitration Association ("Rules") then in effect. Notwithstanding those Rules, the following provisions will apply to such arbitration: (a) the arbitration will be conducted by a single arbitrator, (b) the fees of the arbitrator(s) shall be equally borne (50/50) by the parties, and (c) the proceedings shall be in the English language and shall take place in Walnut, California or another location reasonably convenient to both parties. The arbitrator shall reach a binding decision regarding the issues presented as it deems fair, reasonable and appropriate, and such decision shall have the full force and effect of a binding judgment, which may be entered in any court having proper jurisdiction. Each party may seek injunctive relief in any court of competent jurisdiction. You and YOXEL agree to resolve any dispute in arbitration on an individual basis only, and not on a class or collective basis. The arbitrator shall have no authority to consider or resolve any claim or issue any relief on any basis other than an individual basis. If at any point this provision is determined to be unenforceable, the parties agree that this provision shall not be severable, unless it is determined that the arbitration may still proceed on an individual basis only.
17. Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of the State of California, USA, without regard to any principles of conflict of laws.
18. Assignment. YOXEL may freely transfer or assign this Agreement and any of its rights or obligations hereunder. You shall not assign this Agreement, directly or indirectly without the prior written consent of YOXEL. Any such attempted assignment shall be void.
19. Modifications. We may modify the terms of this Agreement from time to time. Any modification shall be effective when we notify you of the modification (via an update delivered through the Service or via email or other notification) and you signify your acceptance through your continued use of the Service after such date.
20. General. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable for any reason, the remaining provisions hereof shall be unaffected and remain in full force and effect. The section titles in this Agreement are for convenience only and have no legal or contractual effect. Failure or delay in enforcing any right or provision of this Agreement shall not be deemed a waiver of such right or provision with respect to any subsequent breach. This Agreement constitutes the complete agreement between the parties and supersedes all prior or contemporaneous discussions, representations, and proposals, whether in writing or oral, with respect to the subject matter of this Agreement.