Terms of Service

Effective May 19, 2019

PLEASE READ THE TERMS OF SERVICE CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS.

The Terms of Service Agreement (this "Agreement") is a contract between you ("you" or "User") and Agiler Inc. ("Agiler", "we," or "us"). You must read, agree to, and accept all of the terms and conditions contained in this Agreement to be a User of our website located at www.agiler.io. This Agreement includes and hereby incorporates by reference our Privacy Policy.

Subject to the conditions set forth herein, Agiler may, in its sole discretion, amend this Agreement at any time by posting a revised version on the Site. Agiler will provide advance notice of any amendment by posting the updated Terms of Service on the Site, providing notice on the Site, and/or sending you notice by email. Any revisions to the Terms of Service will take effect on the noted effective date ("Effective Date").

YOU UNDERSTAND THAT BY USING THE SITE AFTER THE EFFECTIVE DATE, YOU AGREE TO BE BOUND BY THE TERMS OF SERVICE. IF YOU DO NOT ACCEPT THE TERMS OF SERVICE IN ITS ENTIRETY, YOU MUST NOT ACCESS OR USE THE SITE AFTER THE EFFECTIVE DATE.

IF YOU AGREE TO THE TERMS OF SERVICE ON BEHALF OF AN ENTITY OR AGENCY, OR IN CONNECTION WITH PROVIDING OR RECEIVING SERVICES ON BEHALF OF AN ENTITY OR AGENCY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY OR AGENCY TO THE TERMS OF SERVICE AND AGREE THAT YOU ARE BINDING BOTH YOU AND THAT ENTITY OR AGENCY TO THE TERMS OF SERVICE. IN THAT EVENT, "YOU" AND "YOUR" WILL REFER AND APPLY TO YOU AND THAT ENTITY OR AGENCY.

Accounts

By registering for an account to use the Site (an "Account"), or by using the Site after the Effective Date if you had an Account on the Effective Date, you agree to abide by this Agreement and the other Terms of Service.

To access and use certain portions of the Site, you must register for an Account. Agiler reserves the right to decline a registration to join Agiler, for any lawful reason, including supply and demand, cost to maintain data, or other business considerations.

Agiler offers the Site for your business purposes only and not for personal, household, or consumer use. To register for an Account or use the Site, you must, and hereby represent that you (a) have or are an employee or agent of and authorized to act for an independent business (whether it be as a self-employed individual/sole proprietor or as a corporation, limited liability company, or other entity); (b) will use the Site for business purposes only; (c) will comply with any licensing, registration, or other requirements with respect to your business, or the business for which you are acting; and (d) a legal entity or an individual 18 years or older (or have otherwise reached the age of majority in the jurisdiction in which you conduct business) who can form legally binding contracts.

If you create an Account as an employee or agent on behalf of a company, you represent and warrant that you are authorized to enter into binding contracts, including the Terms of Service, on behalf of yourself and the company.

To register for an Account to join the Site, you must complete a User profile ("Profile"), which you consent to be shown to other Users. You agree to provide true, accurate, and complete information on your Profile and all registration and other forms you access on the Site or provide to us and to update your information to maintain its truthfulness, accuracy, and completeness. You agree not to provide any false or misleading information about your identity or location, your business, your skills, or the services your business provides and to correct any such information that is or becomes false or misleading.

Fees

In consideration of Fees, Agiler will provide tangible or intangible results or deliverables ("Work Product"), including, but not limited to, configurations, computer programs, other information, and/or any intellectual property developed in connection therewith. User shall be charged based on actual hours used by Agiler to provide Work Product. Charges are solely based on Agiler's time measurements. In addition, User shall be charged for any additional costs incurred in the process of producing Work Product. Agiler will advise User of any additional costs before costs are incurred. Charges are exclusive of taxes. You are responsible for paying all taxes and government charges, and reasonable expenses and attorney fees Agiler incurred collecting late amounts. You waive all claims relating to charges unless claimed within 60 days after the charge (this does not affect you credit card issuer rights). Refunds (if any) are at the discretion of Agiler.

Intellectual Property Rights

Upon Agiler’s receipt of full payment from User for delivery of Work Product, Agiler hereby automatically grants to User a non-exclusive, perpetual, fully-paid and royalty-free, irrevocable and worldwide right, with rights to sublicense through multiple levels of sublicensees, to reproduce, make derivative works of, distribute, publicly perform, and publicly display in any form or medium, whether now known or later developed, make, have made, use, sell, import, offer for sale, and exercise any and all present or future rights in the Work Product delivered for that payment. If payment is made only for partial delivery of Work Product, the license described herein applies only to the portion of Work Product delivered and paid for.

Work Product may incorporate 3rd party intellectual property or materials ("Background Technology"). Prior to incorporating any such work, Agiler will disclose any Background Technology which Agiler proposes to incorporate into Work Product or upon which use or distribution of the Work Product will depend. Upon such disclosure of Background Technology, Agiler will provide, at User's request, (a) the name and any associated version number, (b) the applicable license or licensing terms, (c) whether the item has been modified by Agiler, and (d) how the item has been incorporated into, is used by, or is relied upon by the Work Product.

User grants Agiler a limited, non-exclusive, revocable (at any time, at User’s sole discretion) right to use any User provided materials as necessary solely for the performance of producing Work Product. User reserves all other rights and interest, including, without limitation, all Intellectual Property Rights, in and to the User's materials. Upon removable of the project from the Site, termination of the Service, or upon User’s written request, Agiler will immediately destroy all copies of the materials contained in or on Agiler’s premises, systems, or any other equipment or location otherwise under Agiler’s control.

User grants Agiler a limited, non-exclusive, revocable (at any time, at User's sole discretion) right to use (a) User's name and logo, and (b) project's name and logo for marketing and educational purposes. A description of the work completed by Agiler may also be disclosed publicly.

Confidentiality

User may provide Confidential Information, whether in tangible, electronic, verbal, graphic, visual, or other form, to assist Agiler in producing Work Product or performing Services. Agiler will protect the secrecy of the User’s Confidential Information with the same degree of care as it uses to protect its own Confidential Information, but in no event with less than due care, and will: (a) not disclose or permit others to disclose User’s Confidential Information to anyone without first obtaining the express written consent of User; (b) not use or permit the use of User’s Confidential Information, except as necessary for producing Work Product or performing Services (including, without limitation, the storage or transmission of Confidential Information on or through the Site for use by User); and (c) limit access to User’s Confidential Information to its personnel who need to know such information to produce Work Product or perform Services.

Confidential Information does not include material or information that is known to the public or that: (a) is generally known by third parties as a result of no act or omission of User or Agiler; (b) subsequent to disclosure hereunder, was lawfully received without restriction on disclosure from a third party having the right to disseminate the information; (c) was already known by Agiler prior to receiving it from the other party and was not received from a third party in breach of that third party’s obligations of confidentiality; or (d) was independently developed by Agiler without use of another person’s Confidential Information.

If and when Confidential Information is no longer needed for the performance of the Services or User’s request (which may be made at any time at User’s sole discretion), Agiler will promptly destroy the User’s Confidential Information and any copies thereof contained in or on its premises, systems, or any other equipment otherwise under its control.

A disclosure of information will be immune from prosecution or civil action under the Defend Trade Secrets Act, 18 U.S.C. Sec. 1832, if it: (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney, and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.

Relationship of Parties

Nothing in this Agreement is intended to or should be construed to create a partnership, joint venture, franchisor/franchisee or employer-employee relationship between Agiler and a User.

Limitation Of Liability

AGILER SERVICES ARE PROVIDED "AS IS" AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL AGILER BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THE SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

Indemnification

You shall indemnify and defend Agiler and our respective directors, officers, employees, representatives, and agents from any third party claim or liability (including without limitation reasonable legal fees) arising out of (a) the user of the Site by you or your agents; (b) failure to comply with the Terms of Service by you or your agents; (c) failure to comply with applicable law by you or your agents; (d) negligence, willful misconduct, or fraud by you or your agents; and (e) defamation, libel, violation of privacy rights, unfair competition, or infringement of Intellectual Property Rights or allegations thereof to the extent caused by you or your agents. For the purposes of this section, your agents includes any person who has apparent authority to access or use your account demonstrated by using your username and password.

Termination

You may terminate this Agreement for any reason by providing us notice at any time. We may terminate this Agreement for any reason by providing you at least 30 days advance notice. We may also terminate this Agreement immediately upon notice to you if: (a) your use could subject us, our affiliates, or any third party to liability; (b) you are in violation of this Agreement; (c) you are in breach of your payment obligations; (d) your use could be fraudulent. Upon termination, your Account will be closed and all services provided by Agiler will cease. You remain responsible for all fees and charges you have incured through the Termination Date.

Assignability

User may not assign the Terms of Service, or any of its rights or obligations hereunder, without Agiler’s prior written consent in the form of a written instrument signed by a duly authorized representative of Agiler. Agiler may freely assign this Agreement and the other Terms of Service without User’s consent. Any attempted assignment or transfer in violation of this subsection will be null and void. Subject to the foregoing restrictions, the Terms of Service are binding upon and will inure to the benefit of the successors, heirs, and permitted assigns of the parties.

Choice of Law

Any dispute relating in any way to these terms and the use of the services will be adjudicated in any state or federal court in Denver County, Colorado, and you hereby consent to exclusive jurisdiction and venue in those courts. The laws of the State of Colorado, without regard to principles of conflicts of laws and excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG), will govern these terms and any dispute of any sort that might arise between you and us.

Severability

If and to the extent any provision of this Agreement or the other Terms of Service is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof will be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability and will be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties. The illegality, invalidity, or unenforceability of such provision in that jurisdiction will not in any way affect the legality, validity, or enforceability of such provision in any other jurisdiction or of any other provision in any jurisdiction.

Force Majeure

The parties to this Agreement will not be responsible for the failure to perform or any delay in performance of any obligation hereunder for a reasonable period due to labor disturbances, accidents, fires, floods, telecommunications or Internet failures, strikes, wars, riots, rebellions, blockades, acts of government, governmental requirements and regulations or restrictions imposed by law or any other similar conditions beyond the reasonable control of such party.

Entire Agreement

This Agreement sets forth the entire agreement and understanding between you and Agiler relating to the subject matter hereof and thereof and cancels and supersedes any prior or contemporaneous discussions, agreements, representations, warranties, and other communications between you and us, written or oral, to the extent they relate in any way to the subject matter hereof and thereof. The section headings in the Terms of Service are included for ease of reference only and have no binding effect. Even though Agiler drafted the Terms of Service, you represent that you had ample time to review and decide whether to agree to the Terms of Service. If an ambiguity or question of intent or interpretation of the Terms of Service arises, no presumption or burden of proof will arise favoring or disfavoring you or Agiler because of the authorship of any provision of the Terms of Service.