These terms were last updated on April 26, 2023.
1. Your Agreement to Warmly’s Terms of Service
Before you 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 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, you may not use the Service.
Please be aware that 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 may also try to notify you via email or otherwise so that you can review the new terms. We may change the TOS at our discretion at any time, so please review this page periodically. Using or accessing the Services after such a change will constitute your agreement with the new terms. If you no longer agree 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): a. Warmly “Nametags” includes:
i. Warmly’s website located at https://warmly.ai (“Warmly Site")
ii. Services provided through the Warmly Site including any application programing interfaces and related materials (“APIs”)
iii. Any software required or installed to enable the Warmly Nametags product.
b. Warmly Realtime Insights includes:
i. Warmly’s website located at https://warmly.ai/p/lp/b2b-saas (the “Realtime Insights Site”)
ii. Services provided through the Realtime Insights Site including any APIs
iii. Any software required or installed to enable the Warmly Realtime Insights product.
Both the Nametags and Realtime Insights 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 Warmly Service that requires software, individual Software-specific terms shall apply in addition to this TOS.
If you have a paid plan (whether entered through self-service on a Warmly Site or through a separately executed Order Form (“Order Form”)), those plans and services are subject to this TOS. 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 you are a part of an Enterprise plan, please refer to your specific Enterprise contract for guidance.
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 mentioned, Warmly uses certain third-party vendors (aka subcontractors) including those listed below. By accepting these terms, you consent to Warmly's third-party vendors storing data made available to Warmly only if necessary to execute on the Services provided. Warmly has formally executed Data Processing Agreements (DPA) with each of these third-party vendors to garner assurances that these third-party vendors have performed their due diligence to ensure the privacy of personal data.
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). The use of Third-Party Materials is not required to use the Services - and their use is at your sole discretion and risk. We neither control nor endorse, nor are we 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.
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 an Open Source License which the Open Source License does not permit, the conflicting terms of this TOS will not apply. Any fees charged for the Services do not apply to any Open Source Components whose license prohibits such fees. If the terms of any specific Open Source License entitle you to the source code of an Open Source Component, you may request that Warmly provide that source code (Warmly may charge you a fee to process your request).
3. Access To and Use of the Service
Warmly will provide you with access and use of the Services conditioned upon and subject to your compliance with the terms and conditions of this TOS. Your authorized users (those to which you provide credentials) are subject to the terms and conditions of this TOS and you shall ensure that any users who access the Services are assigned appropriate access privileges to such authorized end users and have agreed to the terms of this Agreement (including all confidentiality provisions).
You are responsible for maintaining the confidentiality of your login, password and account and for all activities that occur under your login or account. You must notify us immediately of any unauthorized (or suspected unauthorized) use of your password or account 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 any Data you obtain through the Services to any third party.
- You may not access the Service by any means other than through the interface provided by Warmly for such access.
You 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 or Query Data for compliance with this TOS. Warmly may remove or disable Query Data or 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 and Warmly shall not be liable to you for any such unavailability.
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, solely for uses pre-approved in writing by Warmly and in accordance with Warmly branding guidelines or as approved by Warmly. Warmly may revoke said license if it determines your use does not meet Warmly’s quality control standards. All goodwill arising out of use of the branding assets in any jurisdiction will inure to the sole benefit of Warmly. Warmly owns: (a) any telemetry or metrics data it creates based on your use of the Service and (b) information Warmly derives based on Query Data or its processing, including any inferences, insights, or other predictive information or data based on Query Data (provided that such Query Data cannot be reverse engineered or otherwise identified from analysis or further processing) (collectively “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. You may not use Warmly Data in Salesforce, Marketo or HubSpot, except through via Warmly’s Salesforce, Marketo and HubSpot integrations.
“Query Data” is data, customer contacts, calendar data, information, text, content and other materials that you upload, provide or otherwise transmit (hereafter “post(ing)”) to or in connection with your use of the Service. In order to function as intended, the Services require the use of Query Data, which may include: (a) unencrypted transmissions over the Internet; (b) changes to conform and adapt to technical requirements of connecting networks or devices and (c) transmission to Warmly’s third party vendors and hosting partners to provide necessary hardware, software, networking, storage, and related technology required for the Services. You hereby grant to Warmly a non-exclusive license to use, have used, store, process, transfer, reproduce, distribute, perform, display, and create derivative works of Query Data solely for the purpose of providing the Service. You represent and warrant that, prior to your posting any Query Data, you have obtained all rights or licenses necessary to authorize Warmly’s processing of Query Data as described herein. You should back-up all Query Data and you have sole responsibility for its security and protection prior to posting. Warmly has obtained a SOC2 Type 1 certification but cannot and does not guarantee that the Services are or will remain secure or that access to the Service will be uninterrupted. Except as provided herein, Warmly will have no liability to you for any unauthorized access or use of Query Data, or any corruption, deletion, destruction or loss of any of Query Data. Query Data on the Service (if any) shall be either returned to you or deleted, in your discretion upon any termination or suspension of your account.
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. Your end users are subject to the terms and conditions of this TOS. Warmly reserves the right to adjust 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 term 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 post Query Data to the Services or to otherwise permit Warmly to perform the Services; (ii) the Query Data, 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), Query Data 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.
You shall use any Personal Data downloaded, 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.
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.
7.2. During the Term of this Agreement and subject to the Terms herein, 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.
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 monthly 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 changed amount. Warmly may also choose to issue an invoice to you, which is due and payable within thirty (30) days after receipt of the invoice. 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, INCLUDING FROM ANY VIRUS THAT MAY BE TRANSMITTED IN CONNECTION THEREWITH;
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.
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. In such case, the other Party agrees to cooperate with any reasonable requests to assist in the defense of such matter.
You acknowledge that 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.
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 provide 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 in this 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.
a. Marketing: Warmly reserves the right to 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. 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.
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