(last updated March 12, 2020)
Thanks for using Masterfully’s products, services, websites, and apps (collectively, the “Services”).
Masterfully provides a variety of different Services. Additional service-specific terms and policies (including rules and guidelines) apply to some Services (“Additional Terms”). Those Additional Terms become a part of your agreement with us if you use those Services.
We refer to the combination of these TOU and any applicable Additional Terms collectively as these “Terms.”
You indicate your agreement to these Terms by clicking or tapping on a button indicating your acceptance of these Terms, by executing a document that references them, or by using the Services.
If you will be using the Services on behalf of an organization, you agree to these Terms on behalf of that organization and you represent that you have the authority to do so. In such case, “you” and “your” will refer to that organization.
1. Fees and Payments
1.1. Fees for Services.
You agree to pay to Masterfully all applicable fees for each Service you purchase or use (including any overage fees), in accordance with the pricing and payment terms presented to you for that Service. Where applicable, you will be billed using the billing method you select through your account management page. If you have elected to pay the fees by credit card, you represent and warrant that the credit card information you provide is correct and you will promptly notify Masterfully of any changes to such information. Fees paid by you are non-refundable, except as provided in these Terms or when required by law.
Some of our Services are billed on a subscription basis (we call these “Subscriptions”). This means that you will be billed in advance on a recurring, periodic basis (each period is called a “billing cycle”). Billing cycles are typically monthly or annually, depending on what subscription plan you select when purchasing a Subscription. Your Subscription will automatically renew at the end of each billing cycle unless you cancel auto-renewal through your online account management page, or by contacting our customer support team. While we will be sad to see you go, you may cancel auto-renewal on your Subscription at any time, in which case your Subscription will continue until the end of that billing cycle before terminating. You may cancel auto-renewal on your Subscription immediately after the Subscription starts if you do not want it to renew.
Our prices listed do not include any taxes, levies, duties or similar governmental assessments of any nature such as value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”) unless otherwise indicated. You are responsible for paying Taxes associated with your purchase and keeping your billing information up to date.
1.4. Price Changes.
Masterfully may change the fees charged to you for the Services at any time, provided that, for Services billed on a subscription basis, the change will become effective only at the end of the then-current billing cycle of your Subscription. Masterfully will provide you with advance notice of any change in fees.
1.5. Overage Fees.
Unless otherwise stated, any overage fees incurred by you will be billed in arrears. Overage fees which remain unpaid for thirty (30) days after being billed are considered overdue. Failure to pay overage fees when due may result in the applicable Service being limited, suspended, or terminated (subject to applicable legal requirements), which may result in a loss of your data associated with that Service.
Masterfully will treat your Content as confidential information and only use and disclose it in accordance with these Terms (including the Masterfully privacy policies). However, your Content is not regarded as confidential information if such Content: (a) is or becomes public (other than through breach of these Terms by Masterfully); (b) was lawfully known to Masterfully before receiving it from you; (c) is received by Masterfully from a third party without knowledge of breach of any obligation owed to you; (d) is shared in the context of your account being migrated to an organization’s Enterprise account, if your account is registered using a work email address within that organization; or (e) was independently developed by Masterfully without reference to your Content. Masterfully may disclose your Content when required by law or legal process, but only after Masterfully, if permitted by law, uses commercially reasonable efforts to notify you to give you the opportunity to challenge the requirement to disclose.
Masterfully will store and process your Content in a manner consistent with industry security standards. Masterfully has implemented appropriate technical, organizational, and administrative systems, policies, and procedures designed to help ensure the security, integrity, and confidentiality of your Content and to mitigate the risk of unauthorized access to or use of your Content.
If Masterfully becomes aware of any unauthorized or unlawful access to, or acquisition, alteration, use, disclosure, or destruction of, personal data related to your account (“Security Incident”), Masterfully will take reasonable steps to notify you without undue delay, but in any event within 72 hours of becoming aware of the Security Incident. Masterfully will also reasonably cooperate with you with respect to any investigations relating to a Security Incident with preparing any required notices, and provide any other information reasonably requested by you in relation to any Security Incident, where such information is not already available to you in your account or online through updates provided by Masterfully.
3. Your Content
3.1. You Retain Ownership of Your Content.
You retain ownership of all of your intellectual property rights in your Content. Masterfully does not claim ownership over any of your Content. These Terms do not grant us any licenses or rights to your Content except for the limited rights needed for us to provide the Services, and as otherwise described in these Terms.
3.2. Limited License to Your Content.
You grant Masterfully a worldwide, royalty free license to use, reproduce, distribute, modify, adapt, create derivative works, make publicly available, and otherwise exploit your Content, but only for the limited purposes of providing the Services to you and as otherwise permitted by the Masterfully privacy policies. This license for such limited purposes continues even after you stop using our Services, with respect to aggregate and de-identified data derived from your Content and any residual backup copies of your Content made in the ordinary course of Masterfully’s business. This license also extends to any trusted third parties we work with to the extent necessary to provide the Services to you. If you provide Masterfully with feedback about the Services, we may use your feedback without any obligation to you.
3.3. Customer Lists.
Masterfully may identify you (by name and logo) as a customer on Masterfully’s website and on promotional materials. Any goodwill arising from the use of your name and logo will inure to your benefit.
3.4. Copyright Claims (DMCA Notices).
Masterfully responds to notices of alleged copyright infringement in accordance with the U.S. Digital Millennium Copyright Act (DMCA). If you believe that your work has been exploited in a way that constitutes copyright infringement, you may notify Masterfully’s agent for claims of copyright infringement:
265 South Street, Suite B
San Luis Obispo, CA 93401
Tel: (805) 545-0012
Fax: (805) 545-5956
Masterfully may, in appropriate circumstances, terminate an account holder or user of the services if he or she is a repeat infringer. If you believe that an account holder or user is a repeat infringer, please follow the instructions above to contact Masterfully’s DMCA Copyright Agent and provide information sufficient for us to verify that the account holder or user is a repeat infringer.
3.5. Other IP Claims.
Masterfully respects the intellectual property rights of others, and we expect our users to do the same. If you believe a Masterfully user is infringing upon your intellectual property rights, you may report it through our online form. Claims of copyright infringement should follow the DMCA process outlined in these Terms, or any equivalent process available under local law.
4. Masterfully IP
4.1. Masterfully IP.
Neither these Terms nor your use of the Services grants you ownership in the Services or the content you access through the Services (other than your Content). These Terms do not grant you any right to use Masterfully’s trademarks or other brand elements. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, templates, and all other elements of the Services (“Materials”) are protected by intellectual property and other laws. All Materials included in the Services are the property of Masterfully or its third party licensors. Except as expressly authorized by Masterfully, you may not make use of the Materials. Masterfully reserves all rights to the Materials not granted expressly in these TOU.
If you submit any feedback or suggestions to us regarding our Services, we may use and share them for any purpose without any compensation or obligation to you.
5. User Content
5.1. User Content.
If the Services display content provided by others that is not owned by Masterfully, such content is the sole responsibility of the entity that makes it available. Correspondingly, you are responsible for your own Content and you must ensure that you have all the rights and permissions needed to use that Content in connection with the Services. Masterfully is not responsible for any actions you take with respect to your Content, including sharing it publicly. Please do not use content from the Services unless you have first obtained the permission of its owner, or are otherwise authorized by law to do so.
5.2. Content Review.
You acknowledge that, in order to ensure compliance with legal obligations, Masterfully may be required to review certain Content submitted to the Services to determine whether it is illegal or whether it violates these Terms (such as when unlawful content is reported to us). We may also modify, prevent access to, delete, or refuse to display Content that we believe violates the law or these Terms. However, Masterfully otherwise has no obligation to monitor or review any Content submitted to the Services.
5.3. Third Party Resources.
Masterfully may publish links in its Services to internet websites maintained by third parties. Masterfully does not represent that it has reviewed such third party websites and is not responsible for them or any content appearing on them. Trademarks displayed in conjunction with the Services are the property of their respective owners.
6. Account Management
6.1. Keep Your Password Secure.
If you have been issued an account by Masterfully in connection with your use of the Services, you are responsible for safeguarding your password and any other credentials used to access that account. You, and not Masterfully, are responsible for any activity occurring via your account (other than activity that Masterfully is directly responsible for which is not performed in accordance with your instructions), whether or not you authorized that activity. If you become aware of any unauthorized access to your account, you should notify Masterfully immediately. Accounts may not be shared and may only be used by one individual per account.
6.2. Keep Your Details Accurate.
Masterfully occasionally sends notices to the email address registered with your account. You must keep your email address and, where applicable, your contact details and payment details associated with your account current and accurate.
6.3. Remember to Backup.
You are responsible for maintaining, protecting, and making backups of your Content. To the extent permitted by applicable law, Masterfully will not be liable for any failure to store, or for loss or corruption of, your Content.
6.4. Account Inactivity.
Masterfully may terminate your account and delete any Content contained in it if there is no account activity (such as a log in event or payment) for over 12 months. However, we will attempt to warn you by email before terminating your account to provide you with an opportunity to log in to your account so that it remains active.
6.5. Customer Success.
Masterfully may assign you a customer success manager (“CSM”). The CSM may review your use of the Services and your Content to help you to more effectively use the Services, including by providing reporting and usage insight.
7. User Requirements
7.1. Legal Status.
If you are an individual, you may only use the Services if you have the power to form a contract with Masterfully. If you do not have the power to form a contract, you may not use the Services. If you are not an individual, you warrant that you are validly formed and existing under the laws of your jurisdiction of formation, that you have full power and authority to enter into these Terms, and that you have duly authorized your agent to bind you to these Terms.
For purposes of use of the Services, “Minors” are individuals under the age of 13 (or a higher age as provided in certain countries and territories). None of the Services are intended for use by Minors. If you are a Minor in your place of residence, you may not use the Services. By using the Services, you represent and warrant that you are not a Minor.
You may only use the Services if you are not barred under any applicable laws from doing so. If you are located in a country embargoed by United States or other applicable law from receiving the Services, or are on the U.S. Department of Commerce’s Denied Persons List or Entity List, or the U.S. Treasury Department’s list of Specially Designated Nationals, you are not permitted to purchase any paid Services from Masterfully. You will ensure that: (a) your end users do not use the Services in violation of any export restriction or embargo by the United States; and (b) you do not provide access to the Services to persons or entities on any of the above lists.
8. Acceptable Uses
8.1. Legal Compliance.
You represent and warrant that you will comply with all laws and regulations applicable to your use of the Services.
8.2. Your Responsibilities.
You are responsible for your conduct, Content, and communications with others while using the Services. You must comply with the following requirements when using the Services:
9. PCI Compliance
9.1. PCI Standards.
If you use the Services to accept payment card transactions, you must comply with the Payment Card Industry Data Security Standards (PCI-DSS) to the extent they are applicable to your business (the “PCI Standards”). Masterfully provides tools to simplify your compliance with the PCI Standards, but you must ensure that your business is compliant and the specific steps you will need to take to comply with the PCI Standards will depend on your implementation of the Services.
9.2. Cardholder Data.
At this time, Masterfully does not obtain, retain or sell any customer credit card data.
10. Suspension and Termination of Services
10.1. By You.
You can terminate your Subscription and delete your account at any time through your account management page. Such termination and deletion will result in the deactivation or disablement of your account and access to it, and the deletion of content you collected through use of the Services. Terminations are confirmed immediately and you will not be charged again for that Subscription unless you purchase a new one. If you terminate a Subscription in the middle of a billing cycle, you will not receive a refund unless you are terminating these Terms for any of the following reasons: (a) we have materially breached these Terms and failed to cure that breach within thirty (30) days after you have so notified us in writing; (b) a refund is required by law; or (c) we, in our sole discretion, determine a refund is appropriate. For clarity, we will not grant a refund where you have used our Services, collected responses, and/or downloaded your responses unless the termination is due to our material, uncured breach or a refund is required by law.
10.2. By Masterfully.
Masterfully may terminate your Subscription at the end of a billing cycle by providing at least thirty (30) days’ prior written notice to you. Masterfully may terminate your Subscription for any reason by providing at least ninety (90) days’ written notice to you and will provide a pro rata refund for any period of time you did not use in that billing cycle. Masterfully may suspend performance or terminate your Subscription for any of the following reasons: (a) you have materially breached these Terms and failed to cure that breach within thirty (30) days after Masterfully has so notified you in writing; (b) you cease your business operations or become subject to insolvency proceedings and the proceedings are not dismissed within ninety (90) days; or (c) you fail to pay fees for thirty (30) days past the due date. Additionally, Masterfully may limit, suspend, or terminate the Services to you: (i) if you fail to comply with these Terms, (ii) if you use the Services in a way that causes legal liability to us or disrupts others’ use of the Services; or (iii) if we are investigating suspected misconduct by you. Also, if we limit, suspend, or terminate the Services you receive, depending upon the reason, we will endeavor to give you advance notice and an opportunity to obtain a copy of your Content from that Service. However, there may be time sensitive situations where Masterfully may decide that we need to take immediate action without notice. Masterfully will use commercially reasonable efforts to narrow the scope and duration of any limitation or suspension under this Section as is needed to resolve the issue that prompted such action. Masterfully has no obligation to retain your Content upon termination of the applicable Service.
10.3. Further Measures.
If Masterfully stops providing the Services to you because you repeatedly or egregiously breach these Terms, Masterfully may take measures to prevent the further use of the Services by you, including blocking your IP address.
11. Changes and Updates
11.1. Changes to Terms.
Masterfully may change these Terms at any time for a variety of reasons, such as to reflect changes in applicable law or updates to Services, and to account for new Services or functionality. The most current version will always be posted on the Masterfully website. If an amendment is material, as determined in Masterfully’s sole discretion, Masterfully will notify you by email. Notice of amendments may also be posted on Masterfully’s homepage or upon your login to your account. Changes will be effective no sooner than the day they are publicly posted. In order for certain changes to become effective, applicable law may require Masterfully to obtain your consent to such changes, or to provide you with sufficient advance notice of them. If you do not want to agree to any changes made to the terms for a Service, you should stop using that Service, because by continuing to use the Services you indicate your agreement to be bound by the updated terms.
11.2. Changes to Services.
Masterfully constantly changes and improves the Services. Masterfully may add, alter, or remove functionality from a Service it provides to you at any time without prior notice. Masterfully may also limit, suspend, or discontinue a Service provided to you at its discretion. If Masterfully discontinues a Service, we will give you reasonable advance notice to provide you with an opportunity to obtain a copy of your Content from that Service. Masterfully may remove content from the Services it provides you at any time in our sole discretion, although we will endeavor to notify you before we do that if it materially impacts you and if practicable under the circumstances.
Downgrading your account plan may cause the loss of content, features, functionality, or capacity of your account.
12. Disclaimers and Limitations of Liability
While it is in Masterfully’s interest to provide you with a great experience when using the Services (and we love to please our customers), there are certain things we do not promise about them. We try to keep our online Services up, but they may be unavailable from time to time for various reasons. EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND ANY GUIDANCE OR RECOMMENDATIONS THEREIN ARE PROVIDED “AS IS” AND MASTERFULLY DOES NOT MAKE WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OR ANY REPRESENTATIONS REGARDING AVAILABILITY, RELIABILITY, OR ACCURACY OF THE SERVICES.
12.2. Exclusion of Certain Liability.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, MASTERFULLY, ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS, AND LICENSORS WILL NOT BE LIABLE FOR (A) ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES WHATSOEVER, OR (B) LOSS OF USE, DATA, BUSINESS, REVENUES, OR PROFITS (IN EACH CASE WHETHER DIRECT OR INDIRECT), ARISING OUT OF OR IN CONNECTION WITH THE SERVICES AND THESE TERMS, AND WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, EVEN IF MASTERFULLY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
12.3. Limitation of Liability.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE AGGREGATE LIABILITY OF EACH OF MASTERFULLY, ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS, AND LICENSORS ARISING OUT OF OR IN CONNECTION WITH THE SERVICES AND THESE TERMS WILL NOT EXCEED THE LESSER OF: (A) THE AMOUNTS PAID BY YOU TO MASTERFULLY FOR USE OF THE SERVICES AT ISSUE DURING THE 12 MONTHS PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY; AND (B) US$200.00.
We acknowledge that the laws of certain jurisdictions provide legal rights to consumers that may not be overridden by contract or waived by those consumers. If you are such a consumer, nothing in these Terms limits any of those consumer rights.
If you are a business, you will indemnify and hold harmless Masterfully and its affiliates, officers, agents, and employees from all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) (“Indemnification Amounts”) arising out of a third party claim regarding or in connection with your or your end users’ use of the Services or breach of these Terms, to the extent that such liabilities, damages and costs were caused by you or your end users.
If you are any kind of user, you will indemnify and hold Indemnified Entities harmless from any Indemnification Amounts arising out of a breach of your obligation in Section 1.3 to pay applicable taxes.
13. Contracting Entity
13.1. Who you are contracting with.
Unless otherwise noted, the Services are provided by, and you are contracting with, Masterfully, LLC, a California limited liability company.
13.2. Masterfully, LLC
For any Service provided by Masterfully, the following provisions will apply to any terms governing that Service:
Contracting Entity. References to “Masterfully”, “we”, “us”, and “our” are references to Masterfully, LLC, located at 265 South Street, Suite B, San Luis Obispo, CA 93401, USA.
Governing Law, Arbitration and Venue. This Agreement and any claim or controversy relating to or arising from the use of the Services, including, but not limited to, any transactions made or entered into concerning the Services, any information, content, products, services or promotions herein contained or provided via the Services, or any functionality, software or programming contained on or provided via Services (hereafter, “Claims”), shall be governed by the laws of the State of California without regard to principles of conflicts of law and, as applicable, the laws of the United States of America.
TO THE FULLEST EXTENT PERMITTED BY LAW, ANY CAUSE OF ACTION OR CLAIM MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION OR CLAIM ARISES, OR THE CAUSE OF ACTION OR CLAIM SHALL BE FOREVER BARRED.
YOU AGREE TO ARBITRATE ANY AND ALL CLAIMS, INCLUDING ALL STATUTORY CLAIMS, AND ANY STATE OR FEDERAL CLAIMS. BY AGREEING TO ARBITRATION, YOU UNDERSTAND AND AGREE THAT YOU ARE GIVING UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.
ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN YOU AND US ARISING FROM OR RELATING IN ANY WAY TO YOUR USE OR PURCHASE OF PRODUCTS OR SERVICES WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.
All Claims shall be decided by one arbitrator pursuant to this provision and the commercial arbitration rules and procedures of JAMS, Inc. at their offices located in Orange County, California. For more information on JAMS and/or the rules of JAMS, visit http://www.jamsadr.com. All Claims shall be brought solely in the parties’ individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. The arbitrator may not consolidate more than one person’s Claims, and may not otherwise preside over any form of a representative or class proceeding with respect to any such Claims. NEITHER PARTY SHALL BE PERMITTED TO OBTAIN AWARDS FOR AND, TO THE EXTENT PERMITTED BY LAW, EACH PARTY HEREBY WAIVES (A) ALL RIGHTS TO CLAIM PUNITIVE, INCIDENTAL, EXEMPLARY, SPECIAL, ENHANCED, INDIRECT OR CONSEQUENTIAL DAMAGES AND ANY OTHER DAMAGES, OTHER THAN FOR ACTUAL OUT-OF-POCKET EXPENSES, AND (B) ALL RIGHTS TO HAVE DAMAGES MULTIPLIED OR OTHERWISE INCREASED. The decision of the arbitrator shall be final and binding. No arbitration award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration. Any proceeding to enforce this arbitration agreement, including any proceeding to confirm, modify, or vacate an arbitration award, shall be conducted in the Superior Court of the State of California, in and for the County of San Luis Obispo or, where applicable, the federal District Court sitting in the County of Los Angeles, State of California. Likewise, in the event that this arbitration agreement is for any reason held to be unenforceable, any litigation shall be commenced only in the federal court located in Los Angeles County or state court located in San Luis Obispo County, California. You hereby irrevocably consent to the jurisdiction of those courts for such purposes.
BY USING THE SERVICES IN ANY MANNER, YOU AGREE TO THE TERMS OF THE ABOVE ARBITRATION AGREEMENT. IN DOING SO, YOU GIVE UP YOUR RIGHT TO GO TO COURT TO ASSERT OR DEFEND ANY CLAIMS BETWEEN YOU AND US. YOU ALSO GIVE UP YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION OR OTHER CLASS PROCEEDING.
Jurisdiction. Except as prohibited by applicable law, each party submits to the exclusive jurisdiction of the state courts located in San Luis Obispo County, California, and the federal courts located in the Central District of California with respect to the subject matter of those terms.
14. Other Terms
You may not assign these Terms without Masterfully’s prior written consent, which may be withheld in Masterfully’s sole discretion. Masterfully may assign these Terms at any time without notice to you.
14.2. Entire Agreement.
These Terms (including the Additional Terms) constitute the entire agreement between you and Masterfully, and they supersede any other prior or contemporaneous agreements, terms and conditions, written or oral concerning its subject matter. Any terms and conditions appearing on a purchase order or similar document issued by you do not apply to the Services, do not override or form a part of these Terms, and are void.
14.3. Independent Contractors.
The relationship between you and Masterfully is that of independent contractors, and not legal partners, employees, or agents of each other.
The use of the terms “includes”, “including”, “such as”, and similar terms, will be deemed not to limit what else might be included.
14.5. No Waiver.
A party’s failure or delay to enforce a provision under these Terms is not a waiver of its right to do so later.
To the extent any conflict exists, the Additional Terms prevail over this TOU with respect to the Services to which the Additional Terms apply.
If any provision of these Terms is determined to be unenforceable by a court of competent jurisdiction, that provision will be severed and the remainder of terms will remain in full effect.
14.8. Third Party Beneficiaries.
There are no third party beneficiaries to these Terms.
The following sections will survive the termination of these Terms: 1, 2, 3.2, 10, 12, 13 and 14.