Terms of Service

Effective date: August 10, 2012

The following terms and conditions, as well as any future modifications (the “Terms”) are a contract between you or your company (“you” or “your”) and Habla, Inc., a Delaware corporation (“Olark,” “we,” “us,” or “our”) in addition to any other agreement you may have with Olark. By using Olark’s websites, including, but not limited to www.olark.com, help.olark.com, software applications, application programming interfaces, Olark Webhooks, communication services, and networks (collectively, the “Services”), you acknowledge that you have read, understood, accept and agree to be bound by the most recent version of these Terms.

You can review the most current version of the Terms at any time on the Olark website at http://www.olark.com/pages/tos. Olark reserves the right to update and change the Terms from time to time without notice, effective immediately, by providing updated Terms on the Olark website. Any new features that augment or enhance the current Services, including the release of new tools and resources, shall be subject to the Terms. Your continued use of the Services after any such changes shall constitute consent to such changes. You agree to review the Terms periodically to be aware of any such revisions.

If you do not agree to these Terms, do not use or cease your use of the Services.

Olark’s Intellectual Property Rights

The Services are protected by copyright, trademark, and other laws of the United States and foreign countries. Except as expressly provided in the Terms, Olark, its suppliers and licensors own all right, title and interest in and to the Services, including all associated intellectual property rights. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services.

Olark always appreciates your feedback or other suggestions about Olark, but you understand that we may use them without any obligation to compensate you for them (just as you have no obligation to offer them). You grant us a non-exclusive, worldwide, royalty-free, sublicensable, transferable, irrevocable, perpetual license to use, modify, adapt, publish, perform, or derive new works from your feedback as we choose.

You may not duplicate, copy, reuse, or reverse engineer any portion of the Services, including, but not limited to, the HTML, CSS, Javascript, visual design elements, features, functions, or graphics without express written permission from us.

All trademarks, service marks, logos, trade names and any other proprietary designations of Olark used herein are trademarks or registered trademarks of Olark. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties.

Grant of Limited License

Subject to compliance with the Terms, Olark hereby grants you a non-exclusive, non-transferable, revocable, worldwide license to access and use the Services. All rights not expressly granted to you are reserved by Olark and its licensors.

Some Services may require creation of an account through a registration or signup process. Further, some Services may require payment of fees in order to activate your account. The limited license to use and access these Services is further limited by your accurate and successful creation of an account and providing proper payment as may be required.

If You violate the Terms, we reserve the right in our sole discretion to terminate your limited license without notice.

Fees

Olark reserves the right to charge fees for your use of the Services, as described during the account registration process or when making changes to your account plan. Olark is not obligated to provide refunds or credits for partial months or years of the Services, upgrades or downgrades, or unused time during your subscription.

All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties. [, excluding only United States (federal or state) taxes.] You agree to pay for any such taxes that might be applicable to your use of the Services and payments made by you herein.

PLEASE NOTE THAT DOWNGRADING YOUR ACCOUNT MAY RESULT IN THE LOSS OF CONTENT, FEATURES, OR CAPACITY OF YOUR ACCOUNT. OLARK DOES NOT ACCEPT ANY LIABILITY FOR ANY SUCH LOSSES.

Modifications to the Services

We reserve the right, in our sole discretion, to change published prices without notice. Furthermore, we reserve the right to change the prices for the Services tied to your account, provided that Olark notifies you at the email address associated with your account within thirty (30) days in advance of any such change.

Olark reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice. Olark shall not be liable to you or to any third party for any modification, price change, suspension or discontinuance of the Services.

Account Restrictions

We have the right, but not the obligation, to terminate your account immediately if you violate these Terms, including but not limited to the following agreements:

You must be legally able to enter into these Terms in your jurisdiction, such as being older than the minimum age of consent to enter into contracts. In any case, you must be older than 13 years of age to use the Services.
You must be a natural person or a natural person representing a company, association or other organization. Accounts registered by “bots” or other automated methods are not permitted.
You must provide a valid email address and truthfully provide any other information requested in order to complete the signup process (“Registration Data”).
You must not impersonate nor misrepresent your identity or affiliations with other persons or entities.
You are responsible for maintaining the security of your account and password. We cannot and will not be liable for any loss or damage from your failure to comply with this security obligation.
You must not intentionally and maliciously disrupt the reasonable enjoyment of others using the Service.
If your use of the Services causes undue stress on the Services and the systems running the Services, we reserve the right to limit or disable your access to the Services without notice.
Verbal, physical, written or other abuse (including threats of abuse or retribution) of any customer, employee, member, or officer of Olark will result in immediate account termination.
You may not forge or manipulate headers, data, or network protocols to disguise the origin of Content or otherwise disrupt the intended use of the Services.

Content Restrictions

You are responsible for all materials, including without limitation, information, data, text, software, music, sound, photographs, graphics, video, and email messages or other kinds of messages (collectively “Content”) posted or sent through the Services and for all activity that occurs under your account, whether done so publicly or privately.

We have the right, but not the obligation, to remove content that we determine in our sole discretion to be unlawful, offensive, threatening, libelous, defamatory, obscene or otherwise objectionable, which violates the Terms. We also have the right, but not the obligation, to limit or revoke the use privileges of anyone who posts such content or engages in unacceptable behavior on or through the Services.

Examples of unacceptable content or behavior on the Services include, but are not limited to:

abuse, harassment, threats, flaming or intimidation of any person or organization
engaging in or contributing to any illegal activity or activity that violates others’ rights
use of derogatory, discriminatory or excessively graphic language
providing information that is false, misleading or inaccurate
hacking or modifying the Services to falsely imply an association with Olark
engaging in or contributing to any activity that maliciously degrades the Services
implying or pretending to be affiliated with a company or organization with which you are not affiliated, or misrepresenting the extent of your affiliation or role with an affiliated company or organization
disclosing personal login information, including, but not limited to passwords without the express permission of the individual or organization who provided it to you
transmitting worms, viruses or harmful software
sending spam, unsolicited mail, junk mail or chain letters
disclosing personal or proprietary information of another user, person or organization
altering the Service’s user interface in a way that removes access to any part of the Service’s functionality and/or inhibits access to or the display of advertisements
collecting our users’ or our content or information, or otherwise accessing the Services using automated means (such as harvesting bots, robots, spiders or scrapers) without our permission
soliciting log in information or accessing the account of another user of the Services
promoting, condoning, endorsing, distributing, publishing, or posting any material that solicits money, funds or people on websites or other properties that belong to Olark
aiding in the use of the Services for purposes of advertisement or solicitation for commercial goods or services on websites or other properties that belong to Olark
harassing, annoying, intimidating or threatening users of the Services or employees or agents of Olark
removing or altering, visually or not, any copyrights, trademarks, or proprietary marks and rights owned by us
forging, manipulating or plagiarizing messages, communications, headers or identifiers to imply an association with us or the Services
posting, publishing, displaying or transmitting in any way proprietary information, copyrighted material and trademarks not belonging to you, without the prior written consent of the owner of such rights
posting content that advocates, endorses, condones or promotes harassment of others, or content that actively or indirectly harasses others
posting content that is offensive and harmful, including but not limited to, content that advocates, endorses, condones or promotes racism, bigotry, hatred or physical harm of any kind against any individual or any group of individuals
posting content that provides materials or access to materials that exploits people under the age of 18 in an abusive, violent or sexual manner
posting content that solicits personal information or any information from anyone under the age of 18
posting content that uses, promotes or links to an illegal or unauthorized copy of another person’s copyrighted work or intellectual property

Unfortunately, we cannot control all content posted by third parties to the Services, nor do we have an obligation to monitor the Services, and as a result, we do not guarantee the accuracy, integrity or quality of such content. You agree to use the Services at your own risk. You understand that by using the Services you may be exposed to content that you may find offensive, indecent, incorrect or objectionable, and you agree that under no circumstances will Olark be liable in any way for any content, including any errors or omissions in any content, or any loss or damage of any kind incurred as a result of your use of any content. You understand that you must evaluate and bear all risks associated with the use of any content, including any reliance on the content, integrity, and accuracy of such content. If you would like to report objectionable materials, you may contact us at info@olark.com.

Digital Millennium Copyright Act Notice

If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible through our Services, please notify our copyright agent, as set forth in the Digital Millennium Copyright Act of 1998 (“DMCA”). For your complaint to be valid under the DMCA, you must provide the following information in writing:

An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
Identification of the copyrighted work that you claim is being infringed;
Identification of the material that is claimed to be infringing and where it is located;
Information reasonably sufficient to permit us to contact you, such as your address, telephone number, and e-mail address;
A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and
A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.

Our designated copyright agent to receive notifications of claimed infringement can be reached as follows

info@olark.com

Third-party services

As part of your enjoyment of the Services, subject to these Terms, you may grant a third party access to your account to provide additional products, services or labor provided you agree to be responsible for the actions of the third party and to bind the third party to these Terms as your agent.

From time to time, separate applications or services that integrate or interoperate with the Olark Services (collectively, “Add-ons”) may become available, either directly from Olark or independently. If you choose to install, access or enable an Add-on, you agree that the third-party Add-on provider may acquire access to your account data and information as required for the interoperation or integration of such Add-on and you grant Olark permission to give such Add-on access to your account data and information. Accordingly, such applications are governed by their own terms and conditions and are not considered Services under these Terms.

Privacy Policy

We take your privacy seriously. The following policy covers Olark’s treatment of information collected through the use of Services, third-party partners (“Partners”), or other reasonable means that may happen through normal interaction with us. The policy does not apply to entities that Olark does not own or control, or persons that Olark does not employ or manage. Nevertheless, Olark will take all reasonable means to maintain your privacy as described below when working with third parties.

Subject to these Terms, you consent, through your use of the Services or by communication with us, to the collection, use, disclosure, storage, processing, and transfer to the United States and/or other countries of the following information (collectively your “Private Information”) by us or by third-party vendors contracted by us:

Your account Registration Data;
Your credit card and/or other billing information;
Personal information such as your name, email address, and phone number;
Business information like your company name, company size, and business type;
Your customers’ information that you provide us or through your customers’ interaction with the Services;
Any other information you provide us, such as your coworker’s email address;
Account information from Add-ons and other third-party services you use in conjunction with our Services;
Data about your use of the Services, such as but not limited to interactions with the user interface to the Services, computers you connect to the Services with, the frequency and size of data transfers, and information you use to describe yourself; and
Data required for operation of the Services such as but not limited to information you submit to, publish with, or transfer through to the Services.

We use your Private Information to provide the Services to you; send you notification of updates to the Services; send you marketing communications such as email (unless you choose to stop our email newsletter or marketing emails by following the unsubscribe instructions included in these emails); and if you provide us personal information about others, or if others give us your information, we will only use that information for the specific reason for which it was provided to us.

You consent to the use of cookies, web beacons, and log file information to: (i) operate the Services, (ii) store information so that you will not have to re-enter it during your visit or the next time you use the Services; (iii) provide custom, personalized content and information; (iv) monitor the effectiveness of our marketing campaigns; (v) monitor aggregate metrics such as total number of visitors and pages viewed; and (vi) track your entries, submissions, and status in promotions, sweepstakes, and contests. If you are logged in to your account, we may associate the Private Information with your account.

We also use collected data to compute aggregate metrics such as pages viewed and total number of visitors in order to statistically determine trends and patterns about usage and demographics for the purpose of improving the Services. When aggregating your Private Information, we will take reasonable measures to anonymize your Private Information.

We will not disclose your Private Information to third parties without your consent unless they are bound to a confidentiality agreement that complies with this Privacy Policy. We do not sell your Private Information to third parties.

We may also disclose your Private Information

as required by law such as to comply with a subpoena, or similar legal process;
when we believe in good faith that disclosure is necessary to protect our rights, protect your safety or the safety of others, investigate fraud, or respond to a government request;
if we are involved in a merger, acquisition, or sale of all or a portion of its assets, you will be notified via email and/or a prominent notice within the application of any change in ownership or uses of your personal information, as well as any choices you may have regarding your personal information;
to any other third party with your prior consent to do so.

We may also retain your Private Information in backups for a reasonable period of time, ever after the termination of your account or your relationship with us governed by these Terms. We will not share Private Information in backups with third parties unless compelled to by law.

Termination of Account

You are solely responsible for properly cancelling your account. An email, phone, chat, or written request to cancel your account is not considered cancellation. You can cancel your account at any time by clicking on the “account settings” link on the homepage when logged in. The account settings provides a link to cancel your account.

If you cancel the Services before the end of your current paid up period, your cancellation will take effect immediately and you will not be charged again.

In addition to the above, Olark, in its sole discretion, has the right to suspend or terminate your account and refuse any and all current or future use of the Services for any reason at any time. Such termination of the Services will result in the deactivation or deletion of your account or your access to your account, and the forfeiture and relinquishment of all content in your account. Olark reserves the right to refuse service to anyone for any reason at any time.

WARRANTY DISCLAIMERS

YOU EXPRESSLY UNDERSTAND AND AGREE THAT:

EXCEPT AS EXPRESSLY WARRANTED IN THE TERMS, ALL SERVICES ARE PROVIDED “AS IS” AND OLARK HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH REGARD TO THE SERVICES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ALL WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.

EXCEPT AS OTHERWISE EXPRESSLY STATED IN THE TERMS, IN NO EVENT SHALL OLARK OR ITS RESPECTIVE SUPPLIERS BE LIABLE FOR ANY DAMAGES WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE SERVICES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF USE, DATA OR PROFITS OR DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES. THIS DISCLAIMER OF LIABILITY APPLIES TO ALL CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

OLARK MAKES NO WARRANTY THAT (I) THE SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (II) THAT YOUR ACCESS TO OR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE, (III) THAT ANY DEFECTS IN THE SERVICES WILL BE CORRECTED, OR (IV) THAT THE SERVICES OR ANY SERVER THROUGH WHICH YOU ACCESS THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES ARE ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM OLARK OR THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.

Limitation of Liability

YOU EXPRESSLY UNDERSTAND AND AGREE THAT OLARK AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF OLARK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICES; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICES; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (v) ANY OTHER MATTER RELATING TO THE SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

Indemnification

You agree to indemnify and hold harmless Olark, its officers, directors, employees, agents and third parties, harmless for any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of your connection to or use of the Services, including but not limited to any breach by you of these Terms and any claims arising from the content you submit, post, transmit or make available through the Services.

Non-solicitation

You may not use the Services to solicit, interfere with, or endeavour to entice away from Olark any Olark customer, user, or subscriber. You agree to pay Olark a fee of $10,000 per user enticed away with no limit to the maximum liability you owe to Olark under this paragraph.

The Services are for your own use only. You may not resell, lease or provide them in any other way to anyone else, except as expressly permitted through the Services or by written permission of Olark or by acting as an agent contracted by a third party to act on its behalf.

Without explicit permission from Olark, you may not

use Olark’s trademarks or service marks
alter, modify, obscure, or remove Olark’s trademarks from the Services
alter, modify, obscure the Services
either explicitly, implicitly, or through acts of omission, represent yourself as acting on behalf of Olark
either explicitly, implicitly, or through acts of omission, represent yourself as a partner, affiliate, reseller, employee, contractor, vendor, advisor, or counsel of Olark

If you are interested in becoming an Olark partner, reseller, or affiliate, we are happy to talk with you. Affiliates, please look at the Olark Partners program. If you have something else in mind, please email sales@olark.com or talk to us on live chat.

Governing Law

These Terms, your rights and obligations, and all actions contemplated by these Terms shall be governed by the laws of the California. As a condition of using the Services, you agree that any and all disputes and causes of action arising out of or connected with Olark, shall be resolved through arbitration, with such arbitration to be held in Santa Clara County, California.

Additionally, except where prohibited by law, as a condition of using the Services, you agree that any and all disputes and causes of action arising out of or connected to our Services shall be resolved individually, without resort to any form of class action. You also agree that regardless of any statute or law to the contrary, any claim or cause of action arising from or related to the use of the Services must be filed within one (1) year after such claim or cause of action arose or be forever barred. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.

Integration and Severability

These Terms are the entire agreement between you and Olark with respect to the Services and supersede all prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and Olark with respect to the Services. If any provision of the Terms is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the Terms will otherwise remain in full force and effect and enforceable. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.

Assignment of Terms

You may assign or transfer the Terms, by operation of law or otherwise, upon written notice to Olark. Any attempt by you to assign or transfer the Terms, without such notice, will be null and of no effect. Olark may assign or transfer the Terms, in its sole discretion, without restriction. Subject to the foregoing, the Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.

Notices

Any notices or other communications permitted to required hereunder, including those regarding modifications to the Terms, will be in writing and given by posting to our website. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.

Mutual Beveraging

You are entitled to a beverage of Olark’s choice provided that a) You or a member of your team visits one of Olark’s offices; and b) If a member of the Olark team visits your office, you agree to provide them a beverage of your choice.

Headings for Convenience Only

Headings are for convenience only and have no legal or contractual effect.

Contact

If you have any questions about the Terms of Service, please contact us at info@olark.com.