The following User Terms of Service part of the contract signed by the UW-Madison. This information applies to all users of the UW-Madison Doodle service.
1. Scope of Services
1.1 Doodle grants Customer a non-exclusive, non-sublicensable, non-transferable, limited, worldwide right to use Doodle Software, including access to its application programming interface (“API”) or via a web-based hosted services platform solely for Customer’s internal business purposes.
1.2 Customer understands that Doodle uses third parties (e.g., data center providers) to provide the necessary resources (e.g., hardware, software, networking, storage, etc.) to run the services. Doodle may stop, remove, modify, or add (permanently or temporarily) features within the services.
1.3 Doodle reserves the right (but has no obligation) to pre-screen, review, flag, filter, modify, refuse or remove any or all content or user-account from any of the services at Doodle’s sole discretion.
1.4 Doodle reserves the right at any time to modify or discontinue, temporarily or permanently, access to the API (or any part thereof) with or without notice. Doodle especially reserves the right to limit the number of requests via the API to a certain upper limit per time interval.
1.5 Doodle will provide the support services for the services in accordance with its standard support offerings, provided that all fees due under this Agreement have been paid. Doodle shall comply with all relevant data protection laws.
2. Rights; Ownership
2.1 Customer retains all right, title and interest in and to the data and content provided by Customer through the service (“Customer Content”). Subject to the foregoing, Customer hereby grants to Doodle a non-exclusive, non-transferable right, non-sublicensable,limited, worldwide right to use the Customer Content during the term for the limited purposes of performing Doodle’s obligations hereunder. In addition, Doodle may collect and use any Customer Content, solely in psuedonymized and aggregated statistical form in accordance with applicable law, for the development, marketing and maintenance of the services Subject to the rights granted in this Agreement, Doodle retains all right, title and interest in and to the Software, and Customer acknowledges that it neither owns nor acquires any additional rights in and to the foregoing not expressly granted by this Agreement.
3. Customer Obligations
3.1 Customer may permit any authorized users to access and use the features and functions of the service as contemplated by this Agreement. Customer will ensure that any such users will comply with Laws and be bound by a contractual, enforceable agreement, which agreement, will, by its terms, provide substantially the same or greater protections for Doodle’s Confidential Information, and the service as are provided by the terms hereof. User-accounts registered by bots or other automated methods are not permitted.
3.2 Customer will not impersonate another person, engage in any activity that interferes with or disrupts the services (or the servers and networks which are connected to the services) or reproduce, duplicate, copy, sell, trade or resell the Services for any purpose without the express written permission by Doodle. Customer may, within its product, indicate that the product utilizes the Doodle API. All other use is prohibited.
3.3 Customer will not (i) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any software component of the services are compiled or interpreted, and Customer acknowledges that nothing in this Agreement will be construed to grant Customer any right to obtain or use such code; (ii) create any derivative product from any of the foregoing, except with the prior written consent of Doodle; or (iii) allow third parties other than authorized users to gain access to the services or use the services as a service bureau; (iv) assign, sublicense, sell, resell, lease, rent or otherwise transfer or convey, or pledge as security or otherwise encumber, Customer’s rights. Customer will ensure that its use of the services complies with all applicable laws, statutes, regulations or rules, including those of applicable selfregulatory bodies (“Laws”).
3.4 Customer and its authorized users shall have access to the Customer Content and shall be responsible for all changes to and deletions of Customer Content and the security of all passwords and other access protocols required in order to access the services. Customer may not remove, modify or obscure any legal notices. Customer is not entitled to use Doodle’s trademarks, trade names, brands, domain names, or other brand features. Customer agrees to Doodle’s privacy policy, as available at http://doodle.com/privacy-policy.
3.5 Customer may not abuse or engage in excessively frequent requests via the API. Violation may result in the temporary or permanent suspension of access to the API. Doodle determines abuse or excessive usage of the API at its sole discretion.
4. Fees and Expenses; Payments
4.1 In consideration for the rights granted to Customer and the services performed by Doodle under this Agreement, Customer will pay to Doodle, without offset or deduction, all fees required pursuant to Exhibit A.
4.2 Customer will be responsible for payment of any applicable sales, use and other taxes and all applicable export and import fees, customs duties and similar charges (other than taxes based on Doodle’s income), and any related penalties and interest for the grant of access rights hereunder, or the delivery of related services. Customer will make all required payments to Doodle free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments to Doodle will be Customer’s sole responsibility, and Customer will, upon Doodle’s request, provide Doodle with official receipts issued by appropriate taxing authorities, or such other evidence as Doodle may reasonably request, to establish that such taxes have been paid.
4.3 Any portion of any amount payable hereunder that is not paid when due will accrue interest at one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less, from a date thirty (30) days after the due date until paid.
5. Treatment of Confidential Information
5.1 The Parties acknowledge that during the performance of this Agreement, each Party will have access to certain of the other Party’s Confidential Information or Confidential Information of third parties that the disclosing Party is required to maintain as confidential. Both Parties agree that all items of Confidential Information are proprietary to the disclosing Party or such third party, as applicable, and will remain the sole property of the disclosing Party or such third party.
5.2 Each Party agrees as follows to the extent allowable by Wisconsin open records laws: (i) to use Confidential Information disclosed by the other Party only for the purposes described herein; (ii) that such Party will not reproduce Confidential Information disclosed by the other Party, and will hold in confidence and protect such Confidential Information from dissemination to, and use by, any third party; (iii) that neither Party will create any derivative work from Confidential Information disclosed to such Party by the other Party; (iv) to restrict access to the Confidential Information disclosed by the other Party to such of its personnel, agents, and consultants, if any, who have a need to have access and who have been advised of and have agreed in writing to treat such information in accordance with the terms of this Agreement; and (v) to the extent practicable, return or destroy, all Confidential Information disclosed by the other Party that is in its possession upon termination or expiration of this Agreement.
5.3 Confidentiality Exceptions. Notwithstanding the foregoing, the provisions of Sections 5.1 and 5.2 will not apply to Confidential Information that (i) is publicly available or in the public domain at the time disclosed; (ii) is or becomes publicly available or enters the public domain through no fault of the recipient; (iii) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (iv) is already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (v) is independently developed by the recipient; or (vi) is approved for release or disclosure by the disclosing Party without restriction. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (x) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order (to the extent permitted by such order or law); or (y) to establish a Party’s rights under this Agreement, including to make such court filings as it may be required to do.
6. Representations and Warranties
6.1 Each Party hereby represents and warrants (i) that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; (ii) that the execution and performance of this Agreement will not conflict with or violate any provision of any law having applicability to such Party; and (iii) that this Agreement, when executed and delivered, will constitute a valid and binding obligation of such Party and will be enforceable against such Party in accordance with its terms.
7. Disclaimers, Exclusions and Limitations of Liability
7.1 Except as expressly represented or warranted in section 6, to the maximum extent permitted by applicable law, the services performed by doodle are provided “as is,” and doodle disclaims any and all other promises, indemnities, representations and warranties, whether express or implied, including, but not limited to, any implied warranties of merchantability, fitness for a particular purpose, non-infringement, quiet enjoyment, system integration and data accuracy. Doodle does not warrant that the application service or any other services provided by doodle will meet customer’s requirements or that the operation of the application service will be uninterrupted or error-free, or that all errors will be corrected.
7.2 In no event will either party be liable to customer for any incidental, indirect, special, consequential or punitive damages, regardless of the nature of the claim, including, without limitation, lost profits, costs of delay, any failure of delivery, business interruption, costs of lost or damaged data or documentation, or liabilities to third parties arising from any source resulting from: (i) the use or the inability to use the services; (ii) any changes which doodle may make to the services, or any permanent or temporary cessation in the provision of the services; (iii) unauthorized access to or alteration of customer transmissions or data; (iv) the deletion of, corruption of, or failure to store, any content and other communications data maintained or transmitted by or through the use of the services; (v) or any other matter relating to the services, even if doodle has been advised of the possibility of such damages. This limitation for damages and claims is intended to apply without regard to whether other provisions of this agreement have been breached or have proven ineffective. The cumulative liability of either party for all claims arising from or relating to this agreement, including, without limitation, any cause of action sounding in contract, tort, or strict liability, will not exceed total amount of all fees paid or payable to doodle by company during the twelve (12)-month period prior to the act, omission or occurrence giving rise to such liability.
7.3 Customer acknowledges and understands that the disclaimers, exclusions and
limitations of liability set forth in this Section form an essential basis of the agreement
between the Parties, that the Parties have relied upon such disclaimers, exclusions and
limitations of liability in negotiating the terms and conditions in this Agreement, and that
absent such disclaimers, exclusions and limitations of liability, the terms and conditions
of this Agreement would be substantially different.
8. Indemnification
8.1 Doodle agrees to indemnify, defend and hold harmless Customer from and
against any and all third party losses, liabilities, costs (including reasonable attorneys’
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fees) or damages resulting from any claim by any third party that the services infringe
such third party’s patents, or infringes or misappropriates, as applicable, such third
party’s copyrights or trade secret rights, provided that Customer promptly notifies Doodle
in writing of the claim, cooperates with Doodle, and allows Doodle sole authority to
control the defense and settlement of such claim. If such a claim is made or appears
possible, Customer agrees to permit Doodle, at Doodle’s sole discretion, to enable it to
continue to use the Application Service or the Application Documentation, as applicable,
or to modify or replace any such infringing material to make it non-infringing. If Doodle
determines that none of these alternatives is reasonably available, Customer shall, upon
written request from Doodle, cease use of, and, if applicable, return, such materials as
are the subject of the infringement claim. This Section shall not apply if the alleged
infringement arises, in whole or in part, from (i) modification of the service by Customer,
or (ii) combination, operation or use of the service with other software, hardware or
technology not provided by Doodle, or (iii) related to the Customer Content (any of the
foregoing circumstances under clauses (i), (ii), and (iii) a “Customer Indemnity
Responsibility”). This section states doodle’s entire obligation and liability with respect to any claim of infringement.
9. Term and Termination
9.1 The term of this Agreement will commence on the Effective Date and will
continue for a period of one (1) year thereafter, unless earlier terminated in accordance
with this Section, and will automatically renew for successive one (1) year terms, unless
either Party provides written notice of its desire not to renew at least thirty (30) days prior
to the expiration of the then-current term (the initial term, together with any renewal
terms, collectively, the “Term”).
9.2 Either Party may, at its option, terminate this Agreement in the event of a
material breach by the other Party. Such termination may be effected only through a
written notice to the breaching Party, specifically identifying the breach or breaches on
which such notice of termination is based. The breaching Party will have a right to cure
such breach or breaches within thirty (30) days of receipt of such notice, and this
Agreement will terminate in the event that such cure is not made within such thirty (30)-
day period.
9.3 Either Party may, at its option, terminate this Agreement immediately upon
written notice to the other Party, in the event (i) that the other Party becomes insolvent or
unable to pay its debts when due; (ii) the other Party files a petition in bankruptcy,
reorganization or similar proceeding, or, if filed against, such petition is not removed
within ninety (90) days after such filing; (iii) the other Party discontinues it business; or
(iv) a receiver is appointed or there is an assignment for the benefit of such other Party’s
creditors.
9.4 Upon any termination of this Agreement, Customer will (i) immediately
discontinue all use of the applicable services and any Doodle Confidential Information;
and (ii) promptly pay to Doodle all amounts due and payable under this Agreement.
9.5 The provisions of Sections 2, 4, 5, 7, 9 and 10 will survive the termination of this
Agreement.
10. Miscellaneous
10.1 Entire Agreement. This Agreement sets forth the entire agreement and
understanding between the Parties with respect to the subject matter of this Agreement
and, supersedes and merges all prior and contemporaneous oral and written
agreements, discussions and understandings between the Parties with respect to the
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subject matter of this Agreement, and neither of the Parties will be bound by any
conditions, inducements or representations other than as expressly provided for in this
Agreement.
10.2 Independent Contractors. In making and performing this Agreement, Customer
and Doodle act and will act at all times as independent contractors, and, except as
expressly set forth herein, nothing contained in this Agreement will be construed or
implied to create an agency, partnership or employer and employee relationship
between them. Except as expressly set forth herein, at no time will either Party make
commitments or incur any charges or expenses for, or in the name of the other Party.
10.3 Notices. All notices required by or relating to this Agreement will be in writing
and will be sent by means of certified mail, postage prepaid, to the Parties at their
respective addresses set forth in the preamble to this Agreement, or addressed to such
other address as the receiving Party may have given by written notice in accordance
with this provision. All notices required by or relating to this Agreement may also be
communicated by facsimile, provided that the sender receives and retains confirmation
of successful transmittal to the recipient. Such notices will be effective on the date
indicated in such confirmation. In the event that either Party delivers any notice by
means of facsimile transmission in accordance with the preceding sentence, such Party
will promptly thereafter send a duplicate of such notice in writing by means of certified
mail, postage prepaid, to the receiving Party, addressed as set forth above or to such
other address as the receiving Party may have previously substituted by written notice to
the sender.
10.4 Amendments; Modifications. This Agreement may not be amended or
modified except in a writing duly executed by authorized representatives of both Parties.
10.5 Assignment; Delegation. Customer shall not assign any of its rights or
delegate any of its duties under this Agreement, including by operation of law or
otherwise, without the express, prior written consent of Doodle, and, absent such
consent, any attempted assignment or delegation will be null, void and of no effect
provided that Doodle may subcontract with third parties for the performance of the
services.
10.6 No Third Party Beneficiaries. The Parties acknowledge that the covenants set
forth in this Agreement are intended solely for the benefit of the Parties, their successors
and permitted assigns. Nothing herein, whether express or implied, will confer upon any
person or entity, other than the Parties, their successors and permitted assigns, any
legal or equitable right whatsoever to enforce any provision of this Agreement.
10.7 Severability. If any provision of this Agreement is invalid or unenforceable for
any reason in any jurisdiction, such provision will be construed to have been adjusted to
the minimum extent necessary to cure such invalidity or unenforceability. The invalidity
or unenforceability of one or more of the provisions contained in this Agreement will not
have the effect of rendering any such provision invalid or unenforceable in any other
case, circumstance or jurisdiction, or of rendering any other provisions of this Agreement
invalid or unenforceable whatsoever.
10.8 Waiver. No waiver under this Agreement will be valid or binding unless set forth
in writing and duly executed by the Party against whom enforcement of such waiver is
sought. Any such waiver will constitute a waiver only with respect to the specific matter
described therein and will in no way impair the rights of the Party granting such waiver in
any other respect or at any other time. Any delay or forbearance by either Party in
exercising any right hereunder will not be deemed a waiver of that right.
10.9 Force Majeure. Except with respect to payment obligations hereunder, if a Party
is prevented or delayed in performance of its obligations hereunder as a result of
circumstances beyond such Party’s reasonable control, including, by way of example,
war, riot, fires, floods, epidemics, or failure of public utilities or public transportation
systems, such failure or delay will not be deemed to constitute a material breach of this
Agreement, but such obligation will remain in full force and effect, and will be performed
or satisfied as soon as reasonably practicable after the termination of the relevant
circumstances causing such failure or delay, provided that if such Party is prevented or
delayed from performing for more than ninety (90) days, the other Party may terminate
this Agreement upon thirty (30) days’ written notice.
10.10 Governing Law. THIS AGREEMENT AND ANY DISPUTE HEREUNDER WILL
BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF
SWITZERLAND, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES
THEREOF OR TO THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL
SALE OF GOODS. The parties agree the courts in Madison, Wisconsin shall have
jurisdiction over disputes arising under this Agreement.
10.11 Counterparts. This Agreement may be executed in any number of counterparts,
each of which when so executed will be deemed to be an original and all of which when
taken together will constitute one Agreement.
[End of Terms]
