Warmly's Terms of Service
Last Modified May 25, 2024
1. Your Agreement to Warmly’s Terms of Service
Before you or your Authorized Users use or access the Services offered by Warmly, Inc., (“Warmly” “we” or “us”), please review the following Terms of Service Terms of Service (“TOS” or “Agreement”), as they create a binding agreement between you (“User”) and Warmly.
By you or your Authorized Users signing in with Google, Microsoft or SSO, or by accessing or using the Service, you acknowledge that you have read, understood, and agree to be bound by this TOS and affirm that you are over the age of 18. If you are entering into this TOS on behalf of a business or other legal entity, you represent that you have the authority to bind the entity and its affiliates to this TOS, in which case the terms “you” or “your” shall refer to the entity and its affiliates. If you do not have such authority, or if you do not agree with this TOS, neither you nor the entity you represent may use the Service.
This TOS contains “Disclaimers,” “Limitation of Liability” and a waiver of any right to pursue recovery in a class action rather than individually. These provisions may limit our liability to you or otherwise may affect your rights, so please read these sections carefully.
The Effective Date of the TOS is set forth above. If we decide to change the TOS we will post the new version here and will use commercially reasonable efforts to notify you via email or otherwise so that you can review the new terms. Please review this page periodically to ensure you are aware of the most current terms. Using or accessing the Services after a change to the TOS constitutes your agreement to the new terms. If you do not to the terms, you must terminate your use of the Services as set forth below.
2. Description of Service
The “Service” as defined in this TOS depends on what you sign up for or order. For purposes of this TOS “Service” means all such Service(s) including Warmly (https://warmly.ai/ and https://getwarmly.com/) The Service also includes all Services provided through the Warmly’s Site including any APIs.
The Services include all data (including personally identifiable information (“Personal Data”)), reports, text, images, sounds, video, and content made available through any of the foregoing (collectively referred to as the “Data”) whether stored by Warmly or other third-party vendors with which Warmly contracts. For any software or third-party services accessed through the Services, individual and separate third-party terms may apply in addition to this TOS, and any such terms are between you and the applicable third-party.
This TOS applies to all free and paid plans (whether entered through self-service on a Warmly Site or through a separately executed Order Form (“Order Form”). If Warmly introduces updates, modifications or new features to the Services, they will become part of the Service and are subject to this TOS. If your organization has a separate enterprise contract with Warmly, that contract will apply to the Services. We may, at any time in our discretion, modify or discontinue all or part of the Services (including access to the Service via any third-party links); charge, modify or waive any fees required to use the Service; or offer opportunities to some or all Service users. We reserve the right to introduce new features or functionality for which the payment of fees may be required.
Third Party Vendors.
To provide some of the Services, Warmly uses third-party vendors as listed (here). By accepting these terms, you consent to Warmly's third-party vendors storing and processing data you make available to Warmly only if necessary to provide the Services. Each vendor identified below has entered a Data Processing Agreements (DPA) with Warmly and Warmly will remain responsible for the actions of each vendor.
Third Party Materials.
The Services may provide access to third party services or other resources (“Third-Party Materials”) or allow for the routing or transmission of such Third-Party Materials (including via links). Use of Third-Party Materials is not required to use the Services - and their use is at your sole discretion and risk. We do not control, endorse, or are responsible for, any Third-Party Materials and we make no representation or warranty about their accuracy, integrity, quality, legality, usefulness or safety. We do not monitor Third Party Materials, and we may block or disable access to any Third-Party Materials (in whole or part) through the Service at any time. Your use of any Third-Party Materials may require you to agree to additional terms – and such terms are solely between you and that third-party.
Open Source
The Services may be provided with, or otherwise contain, open source software components (“Open Source Components”) governed by open source license agreements (“Open Source Licenses”). By using the Services, you agree to and must comply with those licenses. If there are any conflicts between this TOS and any terms of an Open Source License, the conflicting terms of this TOS will not apply. Fees charged for the Services (if any) do not apply to any Open Source Components whose license prohibits such fees.
Artificial Intelligence (AI)
The Service includes features, content and functionality powered by Artificial Intelligence ("AI"). For instance, Warmly uses AI to generate chatbot messages to reply to website visitors based on the information we know about them like their company, location and past message history. Warmly also uses AI to generate email messages based on the information we know about users such as their company, location and passed message history. By using the Services, you agree to such uses of AI (understanding that you may opt-out of some AI messages.
3. Access To and Use of the Service
Warmly will provide you and your Authorized Users with access and use of the Services conditioned upon and subject to your (and their) compliance with the terms and conditions of this TOS. “Authorized User” means any individual to whom you provide credentials. Authorized Users are subject to this TOS and you shall ensure that all Authorized Users comply with this TOS.
You and your Authorized Users are responsible for maintaining the confidentiality of logins, passwords and accounts and for all activities that occur under logins or accounts. You must notify us immediately of any unauthorized (or suspected unauthorized) use of passwords or accounts or any other actual or suspected breach of security. You must also log out from your account at the end of each session when accessing the Service.
In accessing and using the Services:
- You may only access and use the Services for lawful purposes and in accordance with this TOS.
- You shall comply with any codes of conduct, policies or other notices Warmly provides you or publishes in connection with the Services.
- You may not expose or sell any Data you obtain through the Services to any third party for any purpose.
- You may not access the Service by any means other than through the interface provided by Warmly for such access.
Enterprise customers are responsible for purchasing a sufficient number of seats and access for your usage and company. Only one seat may be used per person for all seat or license-based services.
Warmly has the right, but not the obligation, to monitor the Service for compliance with this TOS. Warmly may remove or disable any Data in its sole discretion at any time for any reason (including upon receipt of claims or allegations from third parties or authorities). You may request removal of any and all data provided by you to Warmly and we will comply regardless of whether this Agreement is then in effect.
The Services may become temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Warmly or by third-party providers, or because of other causes beyond our reasonable control. Warmly shall not be liable to you for any such unavailability and any agreed-upon Service Level shall not be impacted by such unavailability of the Services.
4. Intellectual Property and Data
As between you and Warmly, all rights, title and interest in and to the Service and its components, updates and derivative works will remain with and belong exclusively to Warmly. You shall obtain no rights or interests in the Services (or modifications thereto) except as provided in this TOS.
Any rights not expressly granted herein are reserved and no license or right to use any trademark of Warmly or any third party is otherwise granted to you in connection with the Service. During the Term, Warmly grants you a non-exclusive, non-sublicensable, terminable right to display the Warmly logos, trademarks and other identifiers provided by Warmly, in accordance with Warmly branding guidelines. Warmly may revoke said license if it determines your use does not meet Warmly’s standards. All goodwill arising out of use of the branding assets in any jurisdiction will inure to the sole benefit of Warmly.
Warmly owns any telemetry or metrics data it creates based on your use of the Service ( “Warmly Data”). To the extent you have any ownership rights in Warmly Data, you hereby assign to Warmly all right, title, and interest that you may have such data.
For use of the Service and the Software, you will access the Data solely on a transactional basis. You shall not (and shall not allow any third party to): present the Data so that it appears to be made available by any third party; or access the Data in bulk, redistribute, or resell the Data. Non-paying users of the Service are expressly forbidden from caching or otherwise storing the Data. Warmly grants unique authorization to use the API solely to develop, reproduce and distribute applications or implementations that interoperate with the API (each “Your Application”), and display any Data made available by Warmly through the API solely to end users via Your Application. Warmly reserves the right to adjust or limit the number and/or frequency of API requests in its sole discretion.
“Personal Data” means personally identifiable information, as such term “personally identifiable information” or similar terms such as “personal information” or “personal data,” are defined under privacy, data protection, or other applicable law.
5. Representation and Warranties
5.1. Mutual Warranties. Each Party represents and warrants to the other that (i) it has the legal power and authority to enter into this Agreement and (ii) it will comply with all laws, rules, and regulations applicable to the exercise of its rights and performance of its obligations under this agreement.
5.2. Customer Warranties. You represent and warrant to Warmly that (i) you own or have obtained all permissions, releases, rights or licenses required to permit Warmly to perform the Services; (ii) your content or other activities in connection with the Service, do not and will not violate, infringe, or misappropriate any third party’s copyright, trademark, patent right, right of privacy or publicity, or other personal or proprietary right; and; (iii) any content you provide does not contain any matter that is defamatory, obscene, unlawful, threatening, abusive, tortious, offensive or harassing.
5.3. Warmly Warranties. Warmly represents and warrants that the services will be performed in a good and workmanlike manner consistent with industry standards.
6. Privacy
You must use any Personal Data accessed or otherwise received through the Service solely in connection with your use of the Service in accordance with this TOS and applicable law. You represent, warrant, and covenant that you shall process all Personal Data for this limited and specified purpose, consistent with any consent provided by the individual to whom Personal Data relates or other legal basis, and that you shall process all Personal Data in accordance with applicable law. You shall comply with all privacy, data protection, and other applicable law in relation to all Personal Data processed in connection with the Service.
Upon any breach of this section (Privacy Compliance), Warmly may immediately terminate your account and this TOS upon written notice to you. You shall comply with any Documentation and the Privacy Policy, and you shall promptly notify Warmly without undue delay if you learn of a security breach related to the Service. You shall provide all disclosures to (including providing any mechanisms in related to data rights, such as access, deletion, opt-out, or consent withdrawal mechanisms), and obtain all consents from, individuals, as such notices and consents are required under applicable privacy, data protection, or other applicable law, in connection with any (i) processing of Personal Data in connection with the Service and (ii) use of pixel tags, “cookies,” and other tracking technologies in connection with the Service (collectively, “Cookies”). As between you and Warmly, you are solely responsible for such disclosures and consents contemplated under the immediately preceding sentence and acting in conformance with such notices and consents and all of your obligations under applicable privacy, data protection, or other applicable law.
Personal Data collected and processed by Warmly in providing the Services is subject to the Warmly Privacy Policy (available here) or applicable Data Processing Addendum (available here) and are incorporated into this TOS by this reference. By continuing to use the Services, you agree to the processing of data as set forth in those documents.
7. Confidentiality
7.1. “Confidential Information” means any and all technical, business, client or proprietary information disclosed by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”), directly or indirectly, including, but not limited to, information regarding the Disclosing Party’s business plans, services, payroll and benefits related information, information relating to the Disclosing Party’s employees, business practices, pricing, technology, software, product plans, and other information which by its nature is information that would reasonably be considered to be confidential information of the Disclosing Party, including information marked as “confidential” or some other proprietary designation. Any Software or data that may be made available by Warmly in connection with the Service contains proprietary and confidential information that is protected by applicable intellectual property and other laws. Confidential information does not include information that is or becomes generally available to the public without breach of this agreement or is already possessed by the receiving party.
7.2. During the Term of this Agreement, each Party will treat as confidential all Confidential Information of the other Party, will not use such Confidential Information except as expressly set forth herein or as otherwise authorized in writing, will implement reasonable security procedures to prohibit the unauthorized use, disclosure, duplication, or misuse of the other Party’s Confidential Information, and will not disclose such Confidential Information to any third party except as may be necessary and required in connection with the rights and obligations of such Party under this Agreement, and subject to the confidentiality obligations at least as protective as those set forth herein. Without limiting the foregoing, each of the Parties will use at least the same procedures and degree of care which it uses to prevent the disclosure of its own confidential information of similar importance to prevent the disclosure of Confidential Information disclosed to it by the other Party under this Agreement, but in no event less than reasonable care.
8. Payment
Our paid services may be purchased either through a Subscription via the self-service process on the Site or by separately signing an Order Form and providing Warmly necessary credit card or other payment information. You must maintain the accuracy and validity of all such information (for example, a change in your billing address or credit card expiration date). By accessing or using any of our paid Services and by providing required payment information, you authorize Warmly to bill your payment instrument for all agreed Services (whether self-serve or through an Order Form). You will be billed for the Services in advance and all fees are nonrefundable. You must notify Warmly within 30 days of after the billing date if you dispute any charges – otherwise all such disputes are waived.
We reserve the right to change Warmly’s prices prior to the renewal of any term but not during any term and will provide you with at least seven (7) days’ written notice (email is sufficient) prior to any such change taking effect. Your continued use of the Service after the price change becomes effective constitutes your agreement to pay the new fee . Past due balances are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. Warmly reserves the right to terminate Services subject to past due balances. You shall be responsible for all taxes associated with Services other than U.S. taxes based on Warmly’s net income.
9. Disclaimer of Warranties
THE SERVICES AND ALL THIRD-PARTY MATERIALS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY WARRANTIES OF ANY KIND. WARMLY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WARMLY DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE, NOR DOES IT MAKE ANY WARRANTY AS TO THE DATA OR RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES.
10. Exclusion of Damages and Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY SHALL BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST CONTENT OR DATA, ARISING OUT OF OR IN CONNECTION WITH THE SERVICES, THIRD PARTY MATERIALS OR THE TOS EVEN IF THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
WARMLY SHALL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND RESULTING FROM USE OF OR INABILITY TO USE THE SERVICES OR ANY THIRD-PARTY MATERIALS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXCEPT FOR BREACHES OF CONFIDENTIALITY, PRIVACY AND INDEMNIFICATION, NEITHER PARTY SHALL BE LIABLE FOR DIRECT DAMAGES, COSTS, LOSSES OR LIABILITIES IN EXCESS OF THE FEES ACTUALLY PAID TO WARMLY IN CONNECTION WITH THE SERVICES IN THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR, IF NO FEES APPLY, ONE HUNDRED U.S. DOLLARS ($100).
THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS TOS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS TOS. ALL LIMITATIONS OF LIABILITY OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THE TOS) ARE MADE FOR THE BENEFIT OF BOTH PARTIES. Some states do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to you. In such states, each party’s liability shall be limited to the extent permitted.
11. Indemnification
Each Party shall defend, indemnify, and hold harmless the other Party from and against any damages, losses, liabilities, and expenses, arising out of or in connection with any third-party claim relating to such indemnifying Party’s: (i) breach or alleged breach of any of the provisions of this TOS; (ii) violation of any third-party right, including without limitation any right of privacy or intellectual property right; (iii) acts or omissions in relation to Personal Data or any other data that is made available to Warmly; or (v) violation of any applicable law, rule, or regulation. The party seeking indemnity shall provide notice to the other party of any such claim, suit, or demand. The party seeking indemnity reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section and the other Party will cooperate with any reasonable requests to assist in the defense of such matter.
12. Term and Termination
The TOS becomes effective upon the date that you are first provided with use or access to the Services and remains in effect, (a) with respect to any free Service, until you uninstall or remove such free Service, (b) with respect to paid plans executed through self-service on the Site, for the term specified in your self-service Subscription, or if none is so specified, for one (1) calendar month (the “Initial Term”). Subscriptions purchased through a Warmly Site or through an Order Form will auto-renew pursuant to the terms of this TOS or as otherwise set forth in such Order Form unless you inform Warmly with your intention not to renew at least 30 days prior to the expiration of the then-current term. You will be invoiced in advance for the Services and no refunds will be issued if you terminate your Subscription prior to the expiration of the Term.
To the extent the Service or any portion thereof is made available for a fee, you are responsible for usage limits set forth in the applicable Order Form and/or self-service Subscription. Warmly reserves the right to bill overages, cancel your subscription, or revoke access if limits are not maintained.
You may terminate your subscription if: (i) Warmly materially breaches this TOS and does not cure such breach within thirty (30) days after receiving written notice from you of the breach; or (ii) Warmly makes a material change to this TOS that you do not accept. In such instances, you may terminate via self-service on warmly.ai or by sending a cancellation request to [email protected].
Warmly may terminate or suspend your account and this TOS effective immediately upon notice if you violate any terms of this TOS. Warmly also reserves the right to modify or discontinue, temporarily or permanently, the Service (or any part thereof). Warmly will not be liable to you or any third party for terminating your access to the Service.
13. General
a. Marketing: You agree that Warmly may contact your users via email about product updates, marketing promotions, and other types of commercial communication unless those users unsubscribe from such communications. Warmly shall comply with all applicable law in contacting users. You grant Warmly the rights to use your logo and company name on our website, during sales pitches and during fundraising events. You agree to publish a blogpost or equivalent announcement about selecting Warmly as your chosen vendor and backlink to Warmly’s website within 30 days. All such use shall be consistent with any branding or other guidelines provided and permission to use said logo and/or company name may be revoked at any time at your sole discretion.
b. Assignment: You may not assign or transfer this TOS, in whole or in part, without consent from Warmly. Warmly may freely assign this Agreement. Any attempted assignment other than as permitted in this section will be null and void.
c. Survival: All terms in this TOS that by their nature would reasonably be understood to survive termination of this TOS shall survive termination of this TOS.
d. Governing Law: This Agreement is governed and interpreted under the laws of California. The United Nations convention on contracts for the international sale of goods does not apply to this Agreement. In the event of any dispute between us, we both agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts of California located in San Francisco County, California.
e. Waiver of Class Action: Both parties agree that all claims brought against the other must be brought in an individual capacity and not on a class or collective basis – only individual relief is available and any claims of more than one User may not be consolidated with those of any other customer or user.
f. Notice and contact: Warmly shall be entitled to provide you with any notices required by this TOS via the email address or other contact information you provided when you signed up for the Service. It is your responsibility to ensure that all such information remains current and accurate. You may contact Warmly through the address shown on the “Contact Us” page on the Site.
g. Entire Agreement: This Agreement constitute the entire agreement between you and us regarding the use of the Platform. Any failure to exercise or enforce any right or provision of this Agreement is not a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be enforced, and the invalid provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
h. Jurisdictional Issues and Export Controls: The Service is controlled or operated (or both) from the United States, and is not intended to subject Warmly to any non-U.S. jurisdiction or law. The Service may not be appropriate or available for use in some non-U.S. jurisdictions. Any use of the Service is at your own risk, and you must comply with all applicable laws, rules and regulations in doing so. We may limit the Service’s availability at any time, in whole or in part, to any person, geographic area or jurisdiction that we choose.
You are responsible for complying with United States export controls, including as set forth above, and for any violation of such controls, including any United States embargoes or other federal rules and regulations restricting exports. You represent, warrant and covenant that you are not (a) located in, or a resident or a national of, any country subject to a U.S. government embargo or other restriction, or that has been designated by the U.S. government as a “terrorist supporting” country; or (b) on any of the U.S. government lists of restricted end users.
Warmly Subprocessors: List Here