Terms of Service Agreement
This is an agreement between Beckett Marketing, Inc., 8901 Tehama Ridge Pkwy, #127-260, Fort Worth, TX 76177 (“Beckett Marketing”, “Licensor“, “we”, “our”, “us”) and you (“Customer”, “Licensee”, “you”) for licensing Tikit.
1.1 “Agreement” means this Service Agreement.
1.2 “Confidential Information” means information that:
- is by its nature confidential;
- is designated in writing by Licensor as confidential;
- the Licensee knows or reasonably ought to know is confidential;
- information comprised in or relating to any Intellectual Property Rights of Licensor;
1.3 “App” or “App services” means the Tikit application or software provided by Licensor.
1.4 “Intellectual Property Rights” means all rights in and to any copyright, trademark, trading name, design, patent, know how (trade secrets) and all other rights resulting from intellectual activity in the technology, construction, industrial, scientific, literary or artistic field and any application or right to apply for registration of any of these rights and any right to protect or enforce any of these rights, as further specified in this Agreement.
1.5 “Party” means a person or business entity that has executed this Agreement; details of the Parties are specified in the Schedule.
1.6 “Term” means the term of this Agreement commencing on the execution date of the order placed on our website, and expiring on the Expiration Date specified in the Schedule in clause 3.2.
1.7 “Customer Data” consists of data and other information made available to us through the use of the App under these Terms, including, Customer Usage Data and Customer Content.
1.8 “Customer Usage Data” means communications metadata processed by us for the purposes of transmitting, distributing, or exchanging communications that are made available to us through the use of the App and include, without limitation, data used to trace and identify the source and destination of a communication, such as individual data subjects’ telephone numbers, data on the location of the device generated in the context of providing certain communications services, and the date, time, and type of communication.
1.9 “Customer Content” shall mean content exchanged by means of use of the App, such as text messages, emails, and other content.
1.10 “Law” means any statute, law, ordinance, regulation, rule, judgment or order of a government, court, or tribunal of competent jurisdiction, including, without limitation, any data protection laws, privacy laws, any laws that requires us or you to obtain consent from an End User or provide notice to an End User in connection with use of the App services, any state, federal, and international laws, regulations, and rules related to the recording or monitoring of telephone calls, SMS messages, or other communications, the U.S. Foreign Corrupt Practices Act, rules established by the Federal Communications Commission, any federal or state anti-spam statute or regulation, including the CAN SPAM Act of 2003, or any federal or state statute or regulation prohibiting the dissemination of unsolicited communications, including the Telephone Consumer Protection Act of 1991 (TCPA).
1.11 “User” means any person who is a full-time or part-time employee or other type of worker in your company or organization or any person or entity who receives any compensation for providing a service to you or your company or organization, whether full-time, part-time or as a contractor, and who will access the App.
For example, an independent contractor who completes physical labor, but does not access the App is not considered a user.
Sharing usernames is prohibited. Your IPs may be tracked to prevent user sharing. If sharing is discovered, you agree to pay for amounts unpaid due to user sharing.
2. LICENSE GRANT AND SCOPE
2.1 Summary of Agreement and services provided include the following:
- Licensor’s proprietary application to be used as a warranty management system or loan processing system by Licensee;
- Complete the launch and testing of the App for Licensee;
- Launch the App on a Tikit domain provided by us;
- Maintain the App on our servers and work with reasonable effort to ensure uptime;
- Provide training to Licensee and Licensee’s employees; Licensor may also elect to create training videos as a method of training for future employees or refresher courses;
- Provide Support (Q/A, Phone Support, Troubleshooting);
2.2 Licensor grants to the Licensee a non-exclusive, non-transferable license for the Term to use the App for the specific purpose specified in this Agreement, subject to the terms and conditions set in this Agreement.
2.3 As part of the fee, Licensor will make reasonable efforts to provide timely support to Licensee for troubleshooting during its normal business hours of 8:00 am to 5:00 pm Central Standard Time. Licensee agrees to submit all requests through our support system at https://www.tikit.tools/support.
3.1 In consideration of the Licensor providing the license and services, the Licensee agrees to pay Licensor the amount of the License Charge as specified in the Schedule below.
- License Fee – the monthly or annual charge for using the App as set forth on our website. The charge is based on active users located on the user management page within the App. You may have active and inactive users set up in the App, but are only charged for active users. Only active users may access the App dashboard. When you create a new user, your account will accrue a new charge for that user. If paying monthly, you will be billed accordingly on your next billing cycle. If paying annually, a new invoice will be generated on the first day of the next month and the new user charge will be prorated for the amount of days remaining in your annual term. You are responsible for checking our website for price changes. We will not communicate if and when a price change will occur. See refund disclosure in Section 3.8 for more details on price increases.
- Expiration Date: for annual billing or monthly billing, one year or one month from the execution of this Agreement or the previous renewal commencement, respectively;
- Licensor may modify these fees at any time at its sole discretion, in relation to increases in various market rates, inflation, costs to support the App, changes in technology or technological requirements, or for whatever reasons it sees fit. Licensor agrees to provide written notice to Licensee at least 30 days prior to a renewal.
3.3 Hosting and server management is included with the App license. Customer is allowed unlimited data to store documents related to the App with their license, but data is limited to two years. Customer may use the tools within the App to download and archive data older than two years. Storing documents unrelated to the business or service conducted in the App is prohibited and may incur fines or termination of contract.
3.4 We can provide you with migration assistance for subcontractors/vendors, customers and subdivisions if you provide us with an Excel file (.xlsx) or CSV (.csv). Additional data migration from other applications, for example connecting to an API, can be done. Such migration requires custom code and shall be billed at $100 per hour. Creating a custom report (standard size) is $149 per report. For complex reports, a quote will be provided, or billed at the hourly rate noted above.
3.5 Generally, Licensor provides an invoice upon completion of each migration or custom project or at the first of each month. However, if Licensor has been waiting on Licensee for 30 days or more for information or other elements of the project, Licensor has the right to invoice Licensee for the current outstanding balance.
3.6 Upon completion of the migration or custom project, Licensor reserves the right to require full payment, for any reason it deems reasonable.
3.7 Check payments may be mailed to the address stated on the invoice provided. Licensee may pay with a credit card or PayPal.
3.8 We provide a 30-day money back guarantee, which begins from the time we supply you with your first username and password to log into the App. No refunds will be given after this time period. If we have executed a price increase and you have just been charged the new price on a monthly or annual renewal, you have 10 days to cancel and receive a refund if you no longer wish to use the App at the new price.
3.9 Should we be later assessed a sales tax on services provided to you, then (notwithstanding our initial failure to collect and remit) we may seek reimbursement of such sales tax from you.
4. LICENSEE’S OBLIGATIONS
4.1 The Licensee cannot use the App for purposes other than as specified in this Agreement.
4.2 The Licensee may permit its employees to use the App for the purposes described in this Agreement, provided that the Licensee takes all necessary steps and imposes the necessary conditions to ensure that all employees using the App do not use the App in a manner inconsistent with Customer’s business practices, in a misleading or illegal way, or use it other than in accordance with the terms of this Agreement without the prior written consent of the Licensor.
4.3 The Licensee will not distribute, sell, license or sub-license, let, trade or expose for sale the App to a third party without the prior written consent of the Licensor.
4.4 The Licensee agrees not to attempt to hack into the App or use the App in a way that would cause harm.
4.5 The Licensee and its employees will protect access credentials and provide security measures to ensure that the App which the Licensee is responsible for is secure from unauthorized use or access.
4.6 Licensee agrees to allow minimal use of its corporate logo in marketing materials or initiatives.
5. INTELLECTUAL PROPERTY RIGHTS
5.1 All Intellectual Property Rights over and with respect to the App are owned by Licensor. The Licensee does not acquire any rights of ownership in the App.
5.2 Licensee data and all information input into the App shall remain solely the property of the Licensee.
5.3 Licensee agrees neither it nor any of its affiliates or 3rd party providers will modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the App, or any other of Licensor’s intellectual property.
5.4 Neither Party may use, disclose or make available to any third party the other Party’s Confidential Information, unless such use or disclosure is done in accordance with the terms of this Agreement. Each Party must hold the other Party’s Confidential Information secure and in confidence, except to the extent that such Confidential Information:
- is required to be disclosed according to the requirements of any law, judicial or legislative body or government agency; or
- was approved for release in writing by the other Party, but only to the extent of and subject to such conditions as may be imposed in such written authorization.
5.5 This clause 5 will survive termination of this Agreement.
6.1 The Licensee must indemnify, defend and hold harmless Licensor, its board members, officers, employees and agents from and against any and all claims (including third party claims), demands, actions, suits, expenses (including attorney’s fees) and damages (including indirect or consequential loss) resulting in any way from:
- Licensee’s and Licensee’s employee’s use or reliance on the app,
- any breach of the terms of this License Agreement by the Licensee or any Licensee employee, and
- any other act of Licensee.
We do not guarantee the App will be free of bugs or defects at any given time. Should you encounter a bug, you may email us at email@example.com and we will review the issue and work to resolve it in a reasonable time frame.
In no event will we be liable for any lost profits, lost revenue, lost business opportunity, loss of data, or any indirect, punitive, incidental, special, consequential, or exemplary damages arising out of, in connection with, or relating to the App.
6.2 This clause 6 will survive termination of this Agreement.
7.1 Any failure or delay by either Party to exercise any right, power or privilege hereunder or to insist upon observance or performance by the other of the provisions of this License Agreement shall not operate or be construed as a waiver thereof.
8.1 This Agreement and the license granted herein commences upon the date of execution by Customer on our website and is granted for the Term, unless otherwise terminated by Licensor in the event of any of the following:
- if the Licensee is in breach of any term of this License Agreement and has not corrected such breach to Licensor’s reasonable satisfaction within 7 days of Licensor’s notice of the same;
- if the Licensee becomes insolvent, or institutes (or there is instituted against it) proceedings in bankruptcy, insolvency, reorganization or dissolution, or makes an assignment for the benefit of creditors;
8.2 Licensee may terminate this contract by providing written notice 3 days before the next renewal date.
8.3 Termination under this clause shall not affect any other rights or remedies Licensor may have.
9.1 Licensee shall not assign any rights of this License Agreement, without the prior written consent of Licensor.
10. CUSTOMER DATA
10.1 Use of Customer Data
10.2 Return and Deletion of Customer Usage Data & Customer Content
Upon termination of these Terms, we may retain, use, and disclose Customer Usage Data (a) for our accounting, tax, billing, audit, and compliance purposes; (b) to investigate fraud, spam, or unlawful use of the App; and/or (c) as required by applicable Law, provided that the retention, use, and disclosure of such Customer Usage Data for the foregoing purposes is subject to the confidentiality obligations as set forth in this agreement. We will anonymize or otherwise delete Customer Usage Data when we no longer require it for the foregoing purposes. We provide you the ability to obtain a copy of Customer Content via the App. During the Term, you agree that you are solely responsible for obtaining a copy of and deleting Customer Content via the App services as needed or required. Any Customer Content archived on our back-up systems will be securely isolated and protected from any further processing, except as otherwise required by applicable Law, and deleted thirty (30) days following your initiating the deletion of Customer Content via the App services. Upon termination of these Terms, you must download a copy of any data you want through the App services, and request a copy of any data you feel you cannot obtain via the services. For any data that you cannot obtain via the services, upon your written request, we will provide it to you no later than 10 days after the request date. We will then (a) automatically delete any stored Customer Content no more than 30 days after the termination effective date; and (b) automatically delete any stored Customer Content on the App’s back-up systems 30 days after the termination effective date. Notwithstanding anything to the contrary in this Section, we may retain Customer Content or any portion thereof if required by applicable Law.
Any notice required or permitted to be given under these Terms will be given in writing to the receiving party by personal delivery, certified mail, return receipt requested, overnight delivery by a nationally recognized carrier or by email upon confirmation of receipt. Notices emailed shall be copied to firstname.lastname@example.org, Attn: Legal Department. Text messages shall not be deemed as a suitable delivery method.
12. FAILURE TO PAY AN INVOICED AMOUNT
Should Licensee fail to fully pay an invoice for migration or other services rendered by the due date (30 days from invoice date), Licensee has a 10-day grace period to complete payment. After 10 days without payment, a 1.5% fee will be added to the balance. A 1.5% fee of the outstanding balance will be applied every month past the due date. If the invoice has not been paid after 30 days, Licensor will deactivate the license and bring down the App. In the event Licensor brings a legal action or engages a collection agency to collect Licensee’s unpaid balances, Licensee will be liable for payment of all reasonable costs of collection, including legal fees, arbitration expenses and court costs. If the outstanding balance is paid in full, all services will be turned back on and this agreement will commence again according to the terms and conditions herein.
13. DISPUTES ON INVOICES
In the event of a dispute with respect to any portion of an invoice, Customer shall pay the undisputed portion of the fees when due and provide written details specifying the basis of any disputed portion of the invoice. Charges that are not disputed within 60 days of the date charged are conclusively deemed accurate.
14. LIMITED LIABILITY
In the event we contract with third party service providers for hosting and other website related technology, Licensee agrees that Licensor is not liable for any downtime, disruption or failure in any and all services such as DNS services, hosting, email or SSL certificates provided by such entities. Licensor and Licensee agree to mutually make sufficient attempts to contact the appropriate technology providers whenever downtime or disruption in service occurs. In the event of data loss, we will restore your data from a data back-up. You are provided with 30 days of daily data back-ups as part of this agreement.
We make no warranties of any kind, whether expressed or implied, for the services being provided. We will not be responsible for delays, errors, failures to perform, interruptions or disruptions in the services resulting from any act, omission or condition beyond our reasonable control, whether or not foreseeable or identified, including without limitation acts of God, labor strikes, lockouts, riots, acts of war, governmental regulations, fire, power failure, earthquakes, severe weather, floods or other natural disasters, hackers, or the failure of your or any third party’s hardware, software or communications equipment or facilities. We will not be responsible for any damage suffered. This includes loss of data resulting from delays, non-deliveries, mis-deliveries, or service interruptions caused by our negligence or Licensee’s errors or omissions. ANY LIABILITY OF LICENSOR, INCLUDING WITHOUT LIMITATION ANY LIABILITY FOR DAMAGES CAUSED OR ALLEGEDLY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMMUNICATIONS LINE FAILURE, THEFT OR DESTRUCTION OF OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF RECORDS, WHETHER FOR BREACH OF CONTRACT, TORTUOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION, SHALL BE STRICTLY LIMITED TO THE AMOUNT PAID BY LICENSEE TO LICENSOR FOR PRODUCTS OR SERVICES RENDERED.
Any and all matters arising out of or relating to this contract or the subject matter hereof shall be governed by, construed, and enforced in accordance with the Laws of the United States of America and, to the extent not preempted by Federal law, the Laws of the State of Texas without regard to conflict of law principles, regardless of the legal theory upon which such matter is asserted.
16. NO WAIVER
Our failure to enforce at any time any provision of these Terms or our Acceptable Use Policy does not waive our right to do so later. And, if we do expressly waive any provision of these Terms or our Acceptable Use Policy, that does not mean it is waived for all time in the future. Any waiver must be in writing and signed by you and us to be legally binding.
17. AGREEMENT TO ARBITRATE
17.1 If a dispute can’t be resolved through our customer support team, you and we agree to resolve the dispute by binding arbitration and on an individual basis only, within Tarrant County, Texas, or another location we both have agreed to in writing. This applies to all claims under any legal theory, unless the claim fits in one of the exceptions below in Section 17.2. It also applies even after you have stopped using the App or terminated your agreement with us. If we have a dispute about whether this agreement to arbitrate can be enforced or applies to our dispute, we all agree that the arbitrator will decide that, too.
Pursuant to this Section, you understand that you and we are giving up the right to have a judge and/or jury resolve any controversy or claim arising out of or relating to these Terms or the App services.
17.2 Exceptions to Agreement to Arbitrate. Both Parties agree that we will go to court to resolve disputes relating to the following:
- Intellectual property (e.g., trademarks, trade dress, domain names, trade secrets, copyrights or patents); or
- Your violation of our Acceptable Use Policy.
Also, any of us can bring a claim in small claims court either in Fort Worth, Texas, or some other place we both agree on, if it qualifies to be brought in that court. In addition, if any of us brings a claim in court that should be arbitrated or any of us refuses to arbitrate a claim that should be arbitrated, the other of us can ask a court to force us to go to arbitration to resolve the claim (i.e., compel arbitration). Any of us may also ask a court to halt a court proceeding while an arbitration proceeding is ongoing.
17.3 Details of Arbitration Procedure. Prior to filing any arbitration, both Parties jointly agree to seek to resolve any dispute between us by mediation conducted by the American Arbitration Association (AAA), with all mediator fees and expenses paid equally by the parties. If mediation is not successful, either party may initiate an arbitration proceeding with AAA. You can look at AAA’s rules and procedures on their website [http://www.adr.org] or you can call them at 1-800-778-7879. The arbitration will be governed by the then-current version of AAA’s Commercial Arbitration Rules (the “Rules”) and will be held with a single arbitrator appointed in accordance with the Rules. To the extent any thing described in this Section conflicts with the Rules, the language of this Section applies. Each of us will be entitled to get a copy of non-privileged relevant documents in the possession or control of the other party and to take a reasonable number of depositions. All such discovery will be in accordance with procedures approved by the arbitrator. This Section does not alter in any way the statute of limitations that would apply to any claims or counterclaims asserted by either party. The arbitrator’s award will be based on the evidence admitted and the substantive law of the State of Texas and the United States, as applicable, and will contain an award for each issue and counterclaim. The award will provide in writing the factual findings and legal reasoning for such award. The arbitrator will not be entitled to modify these Terms. Except as provided in the Federal Arbitration Act, the arbitration award will be final and binding on the parties. Judgment may be entered in any court of competent jurisdiction.
17.4 You agree that any cause of action arising out of and/or relating to this contract must be commenced within one year after the cause of action accrues. Otherwise, such cause of action is permanently barred.
Should any provision of this agreement be held to be illegal, invalid, or unenforceable by a court of law, the legality, validity and enforceability of the remaining provisions of this agreement shall remain unaffected thereby unless otherwise stated.
For questions or concerns or to contact us, please reach out to us at: Beckett Marketing, Inc., 8901 Tehama Ridge Pkwy #127-260, Fort Worth, Texas 76177 or email email@example.com.
Children under the age of 18 are not permitted to sign up for a Tikit account. If we discover someone who is underage has signed up for a Tikit account, we will take reasonable steps to promptly remove that person’s personal information from our records.
These conditions set herein supersede all previous representations, understandings or agreements and shall prevail notwithstanding any variance with conditions of any order submitted. Use of any of our products or services provided under this agreement constitutes acceptance of this agreement. You also agree to our Acceptable Use Policy found at https://www.tikit.tools/aup/.
By executing this agreement, you state you are authorized and of appropriate and right status to contract on behalf of your company or organization as well as sign any documents necessary to do so. As an authorized signer, you agree to all terms and conditions specified in this document.