Terms of Service
Effective: May 1, 2018
Welcome to Maximal Strategist!
Life Cycle Strategies, Inc, an Ohio Corporation dba Maximal, offers Maximal Strategist, an online software that provides product managers with an integrated set of tools to help develop comprehensive market analysis, product strategies and plans (“the Service”).
PART A. TERMS OF SERVICE
The following Terms of Service (“Terms”) is a contract between you and Maximal (“Maximal”) and governs your purchases, access, and use of Maximal Strategist (the “Service”). By accessing or using this Service, you acknowledge that you have read, understood, accept and agree to be bound by these Terms and to comply with all applicable laws and regulations, including export and re-export control laws and regulations.
If you are agreeing to Terms not as an individual but on behalf of your company, then “Users,” "Subscribers,” or “You" means your company and its associates, and you are binding your company to these Terms. If you do not have such authority, or if you do not agree with these Terms, you must not accept these Terms and may not use the Service.
CHANGES TO TERMS
Maximal reserves the right to update Terms and any other information contained in this Web site at any time without notice to you. By using the site, you agree to be bound by the terms and conditions of this Agreement that is in force during such use.
You can always review the most current version by clicking on the “Terms of Service (http://www.maximalstrategist.com/Terms-of-Service/)” link located at the bottom of our Web pages.
PART B. DEFINITIONS
Account: means all accounts or instances created by or on behalf of Subscribers within the Service.
Customer Data: means any data that Customer provides, loads or enters into the Service and all results from processing such data, including compilations and derivative works thereof.
Documentation: means any written or electronic documentation (images, video, text or sounds) specifying the functionality or use of the Service provided by Maximal to Users through the Service or otherwise.
Form: means any Maximal generated order form executed or approved by Subscriber with respect to subscription to the Service, which form may detail, among other things, the number of Subscribers authorized to use the Service and the Plan applicable to your subscription.
Plan: means the service plan with associated functionality and services (as detailed on the Site) for which User subscribes.
Service: means the Maximal Strategist on-line system and software and associated documentation, modifications, enhancements and updates available at (https://www.maximalstrategist.com), (https://account.maximalsaas.com) and all other websites owned or operated by Maximal or its subsidiaries.
User: means an individual (also referred to as Subscriber, User, End-user) authorized to use the Service through individual or company account as identified through an authorized unique user Login.
Subscription Period: means the period during which Customer may use particular features of the Service, commencing with the Start Date and expiring on the End Date as specified in the subscription.
PART C. SYSTEM ACCESS AND USE
1) Permitted Use: During the Subscription Term and subject to compliance with these Terms, Users have the limited right to access and use the Service consistent with the Plan for internal business purposes. Without limiting the foregoing, Users right to access and use the Service is also subject to the restrictions and policies implemented by Maximal from time to time with respect to the Service as set forth in the Documentation or otherwise communicated to Subscriber in writing.
Users are responsible for compliance with the provisions of these Terms and for any and all activities that occur under the Account, as well as for all User Data. Without limiting the foregoing, Users are solely responsible for ensuring that use of the Service to store and transmit User Data is compliant with all applicable laws and regulations. Users also maintain all responsibility for determining whether the Service or the information generated thereby is accurate or sufficient for Users purposes.
2) Connectivity Requirements: A high-speed Internet connection is required for proper transmission of the Service. Users are responsible for procuring and maintaining the network connections that connect the network to the Service, including, but not limited to, "browser" software that supports protocols used by Maximal, including Secure Socket Layer (SSL) protocol or other protocols accepted by Maximal, and to follow procedures for accessing services that support such protocols.
Maximal is not responsible for notifying Users of any upgrades, fixes or enhancements to any such software or for any compromise of data, including User Data, transmitted across computer networks or telecommunications facilities (including but not limited to the Internet) which are not owned, operated or controlled by Maximal. Maximal assumes no responsibility for the reliability or performance of any connections as described in this section.
3) Accessing User Accounts: Subject to any limitation on the number of individual Users available under the Plan, access to and use of the Service is restricted to the specified number of individual Users permitted under the subscription to the Service. Subscriber agrees and acknowledges that each User will be identified by a unique email address and password ("Login") and that a User’s Login may only be used by one (1) individual. Subscriber will not share a User Login among multiple individuals. Subscriber and their Users are responsible for maintaining the confidentiality of all Login information for the Account.
4) Prohibited Use: You agree not to (a) use the Service in any manner that interferes with or disrupts the integrity or performance of the Service and its components, (b) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party, other than authorized Users in furtherance of Your internal business purposes as expressly permitted by these Terms, (c) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any software making up the Service, (d) modify, adapt, or hack the Service or otherwise attempt to gain unauthorized access to the Service or related systems or networks, (e) use the Service to process data on behalf of any third party other than authorized Users, (f) falsely imply any sponsorship or association with Maximal, (g) try to use or use the Service in violation of these Terms.
5) Suspension of Service: In addition to our rights as set forth in PART A (2), Maximal reserves the right, in Maximal's reasonable discretion, to temporarily suspend access to and use of the Service: (a) during planned downtime for upgrades and maintenance to the Service ("Planned Downtime"); (b) during any unavailability caused by circumstances beyond our reasonable control, such as, but not limited to, acts of God, acts of government, acts of terror or civil unrest, technical failures beyond Maximal’s reasonable control (including, without limitation, inability to access the Internet), or acts undertaken by third parties, including without limitation, distributed denial of service attacks; or (c) if Maximal suspects or detects any Malicious Software connected to Your Account or use of the Service by Users.
PART D. CONFIDENTIALITY SECURITY AND DATA PRIVACY
1) Confidential Information: Information disclosed by you to Maximal or by Maximal to you which is in tangible form and may or may not be labeled “confidential” (or with a similar legend) or which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure is considered confidential information.
For purposes of these Terms, your Data shall be deemed Confidential Information. Notwithstanding the foregoing, Confidential Information shall not include information that (a) was already known to the receiving party at the time of disclosure by the disclosing party; (b) was or is obtained by the receiving party by a third party not known by the receiving party to be under an obligation of confidentiality with respect to such information; (c) is or becomes generally available to the public other than by violation of these Terms; or (d) was or is independently developed by the receiving party without use of the disclosing party’s Confidential Information.
2) Data Protection: Subject to the express permissions of these Terms, Subscriber and Maximal will protect each other's Confidential Information from unauthorized use, access or disclosure in the same manner as each protects its own Confidential Information, but with no less than reasonable care. Except as otherwise expressly permitted pursuant to these Terms, each of us may use each other's Confidential Information solely to exercise our respective rights and perform our respective obligations under these Terms and shall disclose such Confidential Information solely to those of our respective employees, representatives and Subscribers who have a need to know such Confidential Information for such purposes and who are bound to maintain the confidentiality of, and not misuse, such Confidential Information.
3) Security: Maximal will maintain commercially reasonable administrative, physical and technical safeguards to protect the security, confidentiality and integrity of Your Data. These safeguards include encryption of Your Data in transmission (using SSL or similar technologies), except for certain Other Services that do not support encryption, which You may link to through Service at Your election. Our compliance with the provisions of this Part D (1) shall be deemed compliance with Our obligations to protect Your Data as set forth in Part D (2).
You agree that Maximal and the service providers used to assist in providing the Service shall have the right to access your Account and your Data solely to the extent necessary to provide the Service, including, without limitation, in response to your support requests. Any third-party service providers given access to the Account and Subscriber Data will be subject to confidentiality obligations.
PART D. INTELLECTUAL PROPERTY RIGHTS
1) Each of us shall maintain all rights, title and interest in and to all our respective patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights (collectively, "Intellectual Property Rights"). The rights granted to You, Subscribers and End Users to use the Service under these Terms do not convey any additional rights in the Service, or in any Intellectual Property Rights associated therewith. Subject only to limited rights to access and use the Service as expressly permitted herein, all rights, title and interest in and to the Service and all hardware, software and other components of or used to provide the Service, including all related intellectual property rights, will remain with and belong exclusively to Maximal.
2) Maximal shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to incorporate into the Service or otherwise use any suggestions, enhancement requests, recommendations or other feedback Maximal receives from You, Subscribers or End Users. Maximal and Maximal's other product and service names, and logos used or displayed on the Service are trademarks or registered trademarks of Maximal (collectively, "Marks"), and You may only use such Marks to identify You as a Subscriber; provided You do not attempt, now or in the future, to claim any rights in the Marks, degrade the distinctiveness of the Marks, or use the Marks to disparage or misrepresent Maximal, its services or products.
PART E. PAYMENTS AND DELIVERY
1) Payment: Unless otherwise indicated on a Form referencing these Terms PART D (2), all charges associated with access to and use of the Service ("Subscription Charges") are due in full upon commencement of the Subscription Term. If You fail to pay Your Subscription Charges or charges for other services indicated on any Form referencing these Terms within fifteen (15) business days of Our notice to You that payment is due or delinquent, or if You do not update payment information upon Our request, in addition to Our other remedies, Maximal may suspend or terminate access to and use of the Service by You, Subscribers and End Users.
If payment is made by credit card, the Service provides an interface for the account owner to change credit card information (e.g. upon card renewal). The Account owner will receive a receipt upon each receipt of payment by Maximal, or they may obtain a receipt from within the Service to track subscription status. Maximal uses a third-party intermediary to manage credit card processing and this intermediary is not permitted to store, retain or use Subscriber billing information except to process credit card information for Maximal.
2) Taxes: Unless otherwise stated, charges do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively "Taxes"). You are responsible for paying Taxes except those assessable against Maximal based on its income. Maximal will invoice You for such Taxes if Maximal believes it has a legal obligation to do so and You agree to pay such Taxes if so invoiced.
3) Service Upgrade: If you choose to upgrade Your Service Plan or increase the number of authorized Subscribers during the Subscription Term (a "Subscription Upgrade"), any incremental Subscription Charges associated with such Subscription Upgrade will be prorated over the remaining period of the then current Subscription Term, charged to Your Account and due and payable upon implementation of such Subscription Upgrade. In any future Subscription Term, your Subscription Charges will reflect any such Subscription Upgrades.
4) Refunds: No refunds or credits for Plan Charges or other fees or payments will be provided if subscriber elects to downgrade the Plan. You can downgrade from any Plan. Downgrading the Plan may cause loss of content, features, or capacity of the Service, and Maximal does not accept any liability for such loss. Maximal reserves the right to contact User about special pricing if the Account maintains an exceptionally high number of Users or other excessive stress on the Service.
PART F. CANCELLATION AND TERMINATION
1) Cancellation Policy: Either You or Maximal may elect to terminate Your Account and subscription to the Service as of the end of your then current Subscription Term by providing notice, in accordance with these Terms, on or prior to the date thirty (30) days preceding the end of such Subscription Term. Unless Your Account and subscription to the Service is so terminated, Your subscription to the Service will renew for a Subscription Term equivalent in length to the then expiring Subscription Term. Unless otherwise provided for in any Form, the Subscription Charges applicable to Your subscription to the Service for any such subsequent Subscription Term shall be Maximal’s standard Subscription Charges for the Plan to which You have subscribed as of the time such subsequent Subscription Term commences.
No refunds or credits for Plan Charges or other fees or payments will be provided if you elect to terminate the subscription or cancel the Account prior to the end of the then effective Subscription Term. Following the termination or cancellation to the Service and/or Account, Maximal will store your data for 6 months after your account suspension or subscription termination. Maximal reserves the right to delete all User Data beyond this time. in the normal course of operation.
2) Early Termination: If Subscriber terminates the subscription to the Service or cancels the Account prior to the end of the then effective Subscription Term or Maximal effects such termination or cancellation pursuant to PART C (6) or PART F (4), in addition to other amounts owed to Maximal, User must immediately pay any then unpaid Subscription Charges associated with the remainder of such Subscription Term. This amount will not be payable by You in the event You terminate Your subscription to the Service or cancel Your Account as a result of a material breach of these Terms by Maximal, provided that You provide advance notice of such breach to Maximal and afford Maximal not less than thirty (30) days to reasonably cure such breach.
3) Violation of Terms: Maximal reserves the right to modify, suspend or terminate the Service (or any part thereof), the Account or Users' rights to access and use the Service, and remove, disable and discard any of Users Data if Maximal believes that Users have violated these Terms. Unless legally prohibited from doing so, Maximal will use commercially reasonable efforts to contact Subscriber directly via email notification when taking any of the foregoing actions. Maximal shall not be liable to Users or any other third party for any such modification, suspension or discontinuation of User rights to access and use the Service. Any suspected fraudulent, abusive, or illegal activity by Subscriber may be referred to law enforcement authorities at Maximal’s sole discretion.
PART G. WARRANTIES
1) DISCLAIMER OF WARRANTIES
THE SITE AND THE SERVICE, INCLUDING ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND MAXIMAL EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT MAXIMAL DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE, AND NO INFORMATION OR ADVICE OBTAINED BY YOU FROM MAXIMAL OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
2) LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL EITHER PARTY TO THESE TERMS, OR THEIR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, SUBSCRIBERS, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE OR OTHER SIMILAR DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, BUSINESS INTERRUPTION OR ANY OTHER LOSS INCURRED BY SUCH PARTY OR THIRD PARTY IN CONNECTION WITH THESE TERMS OR THE SERVICE, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, MAXIMAL'S AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY ARISING OUT OF THESE TERMS OR OTHERWISE IN CONNECTION WITH ANY SUBSCRIPTION TO, OR USE OR EMPLOYMENT OF THE SERVICE, SHALL IN NO EVENT EXCEED THE SUBSCRIPTION CHARGES PAID BY YOU DURING THE TWELVE (12) MONTHS PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION (LIMITATION OF LAIBILITY) IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE SUBSCRIPTION CHARGES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF MAXIMAL WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. MAXIMAL HAS RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE YOU THE RIGHTS TO ACCESS AND USE THE SERVICE PROVIDED FOR IN THESE TERMS.
The limitations of liability shall not apply to any intentional breach of confidentiality under Part D, nor to Maximal’s indemnity obligations under PART F (3) MUTUAL INDEMNITY.
Some jurisdictions 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 THESE JURISDICTIONS, MAXIMAL'S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
3) MUTUAL INDEMNITY
By Maximal: Maximal will indemnify and hold User harmless, from and against any claim against User by reason of your use of the Service as permitted hereunder, brought by a third party alleging that the Service infringes or misappropriates a third party's valid United States patent, copyright, trademark or trade secret (an "IP Claim"). Maximal shall, at its expense, defend such IP Claim and pay damages finally awarded against You in connection therewith, including the reasonable fees and expenses of the attorneys engaged by Maximal for such defense, provided that (a) You promptly notify Maximal of the threat or notice of such IP Claim, (b) Maximal will have the sole and exclusive control and authority to select defense attorneys, defend and/or settle any such IP Claim, and (c) You fully cooperate with Maximal in connection therewith. If use of the Service by You, Subscribers or End Users has become, or in Maximal's opinion is likely to become, the subject of any such IP Claim, Maximal may at its option and expense (a) procure for You the right to continue using the Service as set forth hereunder; (b) replace or modify the Service to make it non-infringing; or (c) if options (a) or (b) are not commercially and reasonably practicable as determined by Maximal, terminate Your subscription to the Service and repay You, on a pro-rated basis, any Subscription
Charges previously paid to Maximal for the corresponding unused portion of Your Subscription Term. Maximal will have no liability or obligation under this Section with respect to any IP Claim if such claim is caused in whole or in part by (i) compliance with designs, data, instructions or specifications provided by User; (ii) modification of the Service by anyone other than Maximal; or (iii) the combination, operation or use of the Service with other hardware or software where the Service would not by itself be infringing.
The provisions of this Section state the sole, exclusive and entire liability of Maximal to User and constitute your sole remedy with respect to an IP Claim brought by reason of access to or use of the Service by Subscriber.
By Subscriber: You will indemnify and hold Maximal harmless against any claim brought by a third party against Maximal arising from or related to use of the Service by You, Subscribers or End Users in breach of these Terms or matters which You have expressly agreed to be responsible pursuant to these Terms; provided that Maximal promptly notifies You of the threat or notice of such a claim.
PART H. ASSIGNMENT; ENTIRE AGREEMENT; REVISIONS
You may not, directly or indirectly, by operation of law or otherwise, assign all or any part of these Terms or your rights under these Terms or delegate performance of your duties under these Terms without Maximal's prior consent. Maximal may, without User consent, assign Our agreement with You to any affiliate or in connection with any merger or change of control of Maximal or the sale of all or substantially all of Our assets provided that any such successor agrees to fulfill its obligations pursuant to these Terms. Subject to the foregoing restrictions, these Terms will be fully binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.
These Terms, together with any Form(s), constitute the entire agreement, and supersede any and all prior agreements between You and Maximal with regard to the subject matter hereof. Maximal may amend these Terms from time to time, in which case the new Terms will supersede prior versions. Maximal will announce any material changes to these Terms via email or in-app messaging at least seven (7) days prior to their taking effect. Maximal's failure to enforce at any time any provision of these Terms does not constitute a waiver of that provision or of any other provision of the Terms.
PART I. SEVERABILITY
If any provision in these Terms is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms shall remain in effect.
PART J. EXPORT COMPLIANCE AND USE RESTRICTIONS
The Service and other Software or components of the Service which Maximal may provide or make available to You, Subscribers or End Users may be subject to U.S. export control and economic sanctions laws. You agree to comply with all such laws and regulations as they relate to access to and use of the Service, Software and such other components by You, Subscribers and End Users. You shall not access or use the Service if You are located in any jurisdiction in which the provision of the Service, Software or other components is prohibited under U.S. or other applicable laws or regulations (a "Prohibited Jurisdiction") and You shall not provide access to the Service to any government, entity or individual located in any Prohibited Jurisdiction. You represent, warrant and covenant that (i) You are not named on any U.S. government list of persons or entities prohibited from receiving U.S. exports, or transacting with any U.S. person, (ii) You are not a national of, or a company registered in, any Prohibited Jurisdiction, (iii) You shall not permit Subscribers or End Users to access or use the Service in violation of any U.S. or other applicable export embargoes, prohibitions or restrictions, and (iv) You shall comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which You, Subscribers and End Users are located.
PART K. RELATIONSHIP OF THE PARTIES
The parties are independent contractors. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the parties.
PART L. SURVIVAL
PARTS A, C, D, F – N 1, 3, 4, 6, 8 and 9-17 shall survive any termination of our agreement with respect to use of the Service by Subscribers. Termination of such agreement shall not limit Subscriber or Maximal's liability for obligations accrued as of or prior to such termination or for any breach of these Terms.
PART M. NOTICE
All notices to be provided by Maximal to Subscriber under these Terms may be delivered in writing (i) by nationally recognized overnight delivery service ("Courier") or US mail to the contact mailing address provided by Subscriber on any Form; or (ii) electronic mail to the electronic mail address provided for the Account owner. You must give notice to us in writing via electronic mail at firstname.lastname@example.org. All notices shall be deemed to have been given immediately upon delivery by electronic mail, or if otherwise delivered upon receipt or, if earlier, two (2) business days after being deposited in the mail or with a Courier as permitted above.
PART N. GOVERNING LAW
These Terms shall be governed by the laws of the State of Ohio without regard to conflict of laws principles. You hereby expressly agree to submit to the exclusive personal jurisdiction of the federal and state courts of the State of Ohio, Lake County, for the purpose of resolving any dispute relating to the Terms or access to or use of the Service by Subscriber.