Terms of Service Agreement
Last Updated: May 22, 2018
1. Scope of Agreement
This Terms of Service Agreement (this “Agreement”) is between you and Substantial, Inc. (“Substantial,” “we” or “us”), and governs your access to and use of the Hello Epics website (www.helloepics.com) (the “Site”) and Hello Epics applications, including, but not limited to, the Hello Epics Power-Up for Trello (the “Hello Epics Power-Up”) (collectively, the “Services”). We are not affiliated with, authorized by, endorsed by or in any way officially connected to Trello, Inc. TRELLO is a Trademark of Trello, Inc.
2. Hello Epics Account and Account Information
To use the Hello Epics Power-Up with a Trello board, you will need to enable the Hello Epics Power Up on the Trello board and authorize the Hello Epics Power-Up for use with your Trello account. We provide the opportunity to use the Hello Epics Power-Up in connection with a Trello board without cost on a trial basis for a limited time. In order to access and use the Hello Epics Power-Up following an initial trial period, you, or a user of the Trello board, will be required to create a Hello Epics account and provide us with certain information, including a valid email address and payment information. If you create a Hello Epics account, you agree to submit only accurate information about yourself and to keep the information you submit up-to-date. If you open an account on behalf of a company, organization, or entity, then: (a) the term "you" as used herein includes you and that company, organization, or entity; (b) you represent and warrant that you are authorized to grant all permissions and licenses provided in this Agreement and to bind the company, organization, or entity to the terms of this Agreement; and (c) you agree to the terms of this Agreement on behalf of the company, organization, or entity. You are responsible for maintaining the security and confidentiality of your account login information, and you agree not to authorize anyone else to use your your account login information. You are solely responsible for all actions taken under or in connection with your account, whether by you, an Authorized User (defined below) or any third party. You agree to notify us promptly in the event you learn of any unauthorized use of your account. By creating an account, you agree that you may receive electronic communications from us and our affiliates, including offers, newsletters, account notices and updates. If you are located in the European Union, we will only send you communications from our affiliates after obtaining your consent. If at any time you no longer wish to receive such electronic communications, you may opt-out by following the “unsubscribe” instructions in the communication.
We reserve the right to immediately terminate or restrict your Hello Epics account or your use of the Services at any time, with or without notice or liability, if we determine in our sole discretion that you have breached this Agreement, violated any law, rule, or regulation, engaged in other inappropriate conduct, or for any other business reason.
3. Access to and Use of the Services
3.1. License Grant to You. We grant you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Services solely in accordance with the terms of this Agreement. All rights not expressly granted in this Agreement are reserved by us. The resale or distribution of materials made available by us through the Services without our express, written consent is prohibited.
3.2. Restrictions on Your Access to and Use of the Services. In connection with your access to or use of the Services, you are prohibited from:
- accessing data not intended for you or logging onto a server or an account which you are not authorized to access;
- using any engine, software, tool, agent or other device or mechanism (including without limitation browsers, spiders, robots, avatars or intelligent agents) to access, navigate, or search the Site or Services, other than generally available third-party web browsers (e.g., Mozilla Firefox, Google Chrome and Microsoft Explorer);
- using any device, software or routine to interfere or attempt to interfere with the proper working of the Services or any activity being conducted on or through the Services;
- attempting to probe, scan or test the vulnerability of a Hello Epics system or network or to breach security or authentication measures;
- attempting to interfere with service to any user, host or network, including, without limitation, via means of submitting a virus to the Site or through the Service, overloading, “flooding,” “spamming,” “mailbombing” or “crashing”;
- sending unsolicited email, including promotions and/or advertising of products or services;
- forging any TCP/IP packet header or any part of the header information in any email or newsgroup posting;
- copying, modifying, adapting, reproducing, reverse engineering, decompiling, disassembling, or preparing derivative works of our software or Hello Epics Content, or any content that is not your own;
- distributing viruses, malicious code, malware or any other technologies that may harm the Services or any user of the Services;
- violating or circumventing any applicable laws or regulations, or any technical measures, security measures or policies of the Services;
- violating, infringing, or breaching the rights of Substantial or a third-party, including, but not limited to any copyrights, trademark rights, patent rights, trade secrets rights, rights of publicity or personality, moral rights, or any other proprietary rights; or
- submitting to or through the Services any false, inaccurate, misleading, deceptive, defamatory, or libelous materials or content.
Violations of system or network security may result in civil or criminal liability. Substantial will investigate occurrences that may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting users who are involved in such violations.
3.3. User Content and License Grant to Us. When you transmit any information, content, materials or data to or through the Site (“User Content”), you are not forfeiting any ownership rights you may have in the User Content. However, by submitting User Content on or through the Site, you hereby grant Substantial and its affiliates a non-exclusive, royalty-free, perpetual, irrevocable and fully sublicensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such User Content, including throughout the world in any media, as necessary (a) to provide, maintain and improve the Site; (b) to prevent or address service, security, support or technical issues; (c) as required by law; and (d) as expressly authorized by you. You represent and warrant that you own or have obtained all necessary rights and/or licenses to User Content that you transmit, and that our use of such User Content as authorized under this Agreement does not violate or infringe upon the rights of any person or entity. In the event of any loss of or damage to your User Content, your sole and exclusive remedy shall be for us to make reasonable commercial efforts to restore the lost or damaged User Content. Substantial will not be responsible for any loss, destruction, alteration or disclosure of your User Content caused by any third party. If you are a company, organization, or entity, you hereby grant Substantial and its affiliates a non-exclusive, royalty-free, license to use your name, logo and/or trademark, without further notice, in connection with our promotional, sales, and marketing materials solely to identify you as our customer. Such materials may include, but are not limited to the Site homepage.
4. Service Fees
4.1. Payment of Service Fees; Subscriptions. While some Hello Epics Content (defined below) may be provided without cost, we charge fees for the Services (“Service Fees”). If you elect to purchase services for which Service Fees are applicable, you will be asked to provide valid and up-to-date credit card information or other payment information to us or our third-party subscription management provider and/or payment processor. By providing a credit card or other acceptable payment method ("Payment Method") to purchase services, you expressly authorize us (and/or our third-party subscription management provider and/or payment processor) to charge the Service Fees and any applicable taxes, on a recurring basis corresponding to the term of your subscription, to the Payment Method. If you want to use a different Payment Method than the one you signed up to use during registration, or if there is a change in your credit card information, you must notify us and provide new Payment Method information. If your Payment Method expires and you do not edit your Payment Method information or cancel your account, you authorize us to continue billing you, and you will remain responsible for all uncollected amounts.
As used herein, the term "billing" means either a charge or debit, as applicable, against your Payment Method. The Service Fees will be billed at the beginning of your subscription and on each periodic renewal date thereafter unless and until you cancel your subscription or the account or service is otherwise suspended or discontinued pursuant to this Agreement.
We automatically bill your Payment Method on the calendar day corresponding to commencement of your subscription. The interval of time between each payment due date shall correspond to the term of your subscription and be referred to herein as a "Billing Period." In the event your subscription began on a day not contained in a given month, we bill your Payment Method on the last day of such month. For example, if you have a monthly subscription and became a paying subscriber on March 31, your Payment Method would next be billed on April 30. You acknowledge that the timing of when you are billed and the amount billed each Billing Period may vary, including for example due to promotional offers, credits applied, changes in your subscription, changes in your Payment Method, or changes in applicable taxes, and you authorize us to charge your Payment Method for the corresponding amounts. Additionally, the Service Fees applicable for our Services may be determined based in part on the number of users in your business or organization authorized to use the Services (“Authorized Users”). In the event the number of Authorized Users increases or decreases during any Billing Period, the Services Fees charged will be increased, pro-rata, or a pro-rata credit will be issued.
We reserve the right to change the terms of your subscription, including the Service Fee amount, from time to time, effective as of the beginning of your next Billing Period following the date of the change. If we change the Service Fee amount or other charges for your subscription, we will give you advance notice of these changes. However, we will not be responsible for notifying you of changes in any applicable taxes.
4.2 Refunds/Credits. In some additional circumstances (other than where a credit may be issued due to a decrease in Authorized Users) where we determine it is appropriate (e.g., your access to the Services is unavailable for an extended period of time due to technical difficulties), we may provide a refund or credit. The amount and form of such refund or credit, and the decision to provide either, are at our sole and absolute discretion, and the provision of a refund or credit in one instance does not entitle you to a refund or credit in the future under similar or different circumstances.
4.3 Cancellation. Your subscription will continue in effect on a recurring basis corresponding to the term of your subscription unless and until you cancel your subscription or the account or service is otherwise suspended or discontinued pursuant to this Agreement. You must cancel your subscription before your next renewal date in order to avoid the next billing. We will bill the periodic Service Fees plus any applicable taxes to the most recent Payment Method you have provided to us. If you cancel your subscription, cancellation will be effective at the end of the current Billing Period - this means that you will have continued access to your subscription for the remainder of that period, but you will not receive a refund. You can cancel your subscription by logging into your account (https://helloepics.chargebeeportal.com) and following the account cancellation procedures.
4.4 Unpaid Amounts. We reserve the right to retry billing your Payment Method after failed attempts (e.g., if your Payment Method is rejected). We also reserve the right to pursue any amounts you fail to pay in connection with your subscription. You will remain liable for all such amounts and all costs we incur in connection with the collection of such amounts, including, without limitation, bank overdraft fees, collection agency fees, reasonable attorneys' fees, and arbitration or court costs.
5. Ownership and Intellectual Property Rights
All materials, including text, images, videos, illustrations, designs, icons, photographs, software, programs and written and other materials that are part of the Site or accessible through the Services, other than User Content (collectively, “Hello Epics Content”), is the property of Substantial or its licensors. No right, title or interest in any Hello Epics Content is transferred to you by way of this Agreement or otherwise. You may not reproduce, publish, transmit, distribute, display, modify, create derivative works from, sell or participate in any sale of or exploit in any way, in whole or in part, any of the Hello Epics Content, the Site or the Services. The HELLO EPICS trademark and the Hello Epics logo are trademarks of Substantial, Inc. The Services, the Hello Epics Content, and the HELLO EPICS and Hello Epics logo trademarks are protected by copyright, trademark, and/or other intellectual property laws.
6. Copyright Infringement (Digital Millennium Copyright Act)
We respect the intellectual property of others. We strive to respond promptly to proper notices of copyright infringement by removing or disabling access to allegedly infringing material. It is our policy to terminate the access privileges of those who repeatedly infringe the copyrights of others.
Submitting a Copyright Infringement Notification. If you believe that any material appears on the Site in a way that infringes the copyright in a work you own, please send a notification containing the following information to Hello Epics’ Copyright Agent:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
- a description of the work in which you hold a copyright interest which you believe is being infringed;
- a description of the location on the Site or Services where the allegedly infringing material is located (preferably including a URL address);
- your address, telephone number, and email address;
- a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
- a statement by you, made under penalty of perjury, that the above information in your notification is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
Our Copyright Agent can be reached at the following address:
Attn: Copyright Agent
c/o Substantial, Inc.
900 E. Pine St., Ste. 202
Seattle, WA 98122
Email: [email protected]
Submitting a Counter-Notification. If you believe that any material identified in a copyright infringement notification is not infringing, or that you have the authorization from the copyright owner, from the copyright owner’s agent, or pursuant to the law, to post and use the material complained of, you may send a counter-notification containing the following information to Hello Epics’ Copyright Agent (identified above):
- your physical or electronic signature;
- identification of the material that has been removed or to which access has been disabled, and the location at which the material appeared before it was removed or disabled;
- a statement that you have a good faith belief that the material was removed or disabled as a result of mistake or a misidentification of the material; and
- your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in the Western District of Washington, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If Hello Epics receives a counter-notification, we may send a copy of the counter-notification to the original complaining party informing that person that we may replace the removed material or cease disabling it in 10 business days. Unless the original complaining party files an action seeking a court order against the person who provided the allegedly infringing material, the removed material may be replaced, or access to it restored, 14 business days or more after receipt of the counter-notification, at Hello Epics’ sole discretion.
7. Third Parties; Third-Party Content and Services
References on the Site or Services to any third parties or any products or services of such third parties, are provided solely as a convenience to you. We do not endorse, recommend, approve of or make any representations or warranties regarding any third parties or their products or services. We are not responsible for the content of any third-party websites and do not make any representations regarding the content or accuracy of material on such websites. If you decide to follow a link to any third-party website, you do so entirely at your own risk.
8. Disclaimer of Warranty
THE SERVICES ARE PROVIDED BY SUBSTANTIAL ON AN “AS IS” AND “AS AVAILABLE” BASIS. SUBSTANTIAL MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE SERVICES, OR INFORMATION, CONTENT, OR MATERIALS OFFERED ON OR THROUGH THE SERVICES. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, SUBSTANTIAL DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. SUBSTANTIAL DOES NOT WARRANT THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THIS DISCLAIMER CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT, AND YOU ACKNOWLEDGE THAT SUBSTANTIAL WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITH YOU WITHOUT YOUR AGREEMENT TO THE TERMS OF THIS DISCLAIMER.
9. Limitation of Liability
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL OR EQUITABLE THEORY, WHETHER IN TORT, CONTRACT, STRICT LIABILITY OR OTHERWISE, SHALL SUBSTANTIAL, ITS AFFILIATES, AND THEIR RESPECTIVE EMPLOYEES, DIRECTORS, OFFICERS, AND AGENTS BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES OF ANY NATURE ARISING OUT OF OR IN CONNECTION WITH THE USE OF OR INABILITY TO USE THE SERVICES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, EVEN IF SUBSTANTIAL, ITS AFFILIATES, OR THEIR RESPECTIVE EMPLOYEES, DIRECTORS, OFFICERS, AND AGENTS HAVE BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES. IN NO EVENT WILL SUBSTANTIAL BE LIABLE FOR ANY DAMAGES IN EXCESS OF THE AMOUNTS PAID BY YOU IN CONNECTION WITH YOUR USE OF THE SERVICES DURING THE SIX-MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM AROSE.
CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
10. Limitation on Time to Bring Claims
To help resolve any issues between us promptly, you and Substantial agree to bring any claim arising out of or relating to this Agreement, our relationship, or the use of the Services within one year after a claim arises; otherwise, the claim is waived. This limitation applies regardless of the venue in which such claim is or could otherwise be asserted.
You agree to defend, indemnify and hold harmless Substantial, its affiliates, and their respective directors, officers and employees from and against any and all claims, damages, costs and expenses, including attorneys’ fees, arising from or related to your breach or alleged breach of this Agreement, your improper use of the Services, or your breach of any applicable law or infringement of the rights of a third party. Substantial shall have the right to participate in the defense of any such claim at its own cost. You may not settle or negotiate any claim that results in liability to, or imposes any obligation upon, Substantial, financial or otherwise, without the written consent of Substantial.
12. Changes; Suspension; Discontinuation
We may change, suspend, or discontinue--temporarily or permanently--some or all of the Services, with respect to any or all users, at any time with or without notice. In our continued assessment of the Services, we may from time to time, with respect to any or all of our users, experiment with or otherwise offer certain features or other elements of the Services. You acknowledge that Substantial may do so in its sole discretion at any time with or without notice. You also agree that Substantial will not be liable to you for any modification, suspension, or discontinuance of the Services, although if you are a subscriber to any Services, and we suspend or discontinue your subscription, Substantial may, in its sole discretion, provide you with a credit, refund, discount or other form of consideration (for example, we may credit additional days of service to your account) in accordance with Section 4.2, above. However, if Substantial terminates your account or suspends or discontinues your access to Services due to your violation of this Agreement, then you will not be eligible for any such credit, refund, discount or other consideration.
This Agreement shall remain in force and effective unless and until terminated by either you or us. You may terminate this Agreement at any time by providing written notice to us, via email to [email protected]. We may terminate this Agreement immediately with or without notice, and/or may deny you access to the Services, in our sole discretion, in the event you breach, or threaten to breach, any term of this Agreement. Upon any termination of this Agreement, you must immediately discontinue use of the Services. Even after your rights under this Agreement are terminated, all provisions of this Agreement which by their nature should survive, will survive, including, without limitation, ownership provisions, warranty disclaimers, and limitations of liability.
14. Miscellaneous Terms
14.1. Consent to Electronic Communications. You consent to receive communications from us electronically. If you are located in the EU, we will use the personal data you have submitted to communicate with you electronically when necessary to perform our contract with you, based upon our legitimate interest, or when you have otherwise provided consent. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically, via email, or on the Site or through the Services, satisfy any legal requirement that such communications or agreements be in writing.
14.2. Export Restrictions. You acknowledge that the Services, or portions thereof may be subject to the export control laws of the United States. You will not export, re-export, divert, transfer or disclose any portion of the Services or any related technical information or materials, directly or indirectly, in violation of any applicable export law or regulation.
14.3. Assignment. You may not assign your rights under this Agreement without the prior written permission of Substantial and any attempt by you to do so shall be null and void.
14.4. Waiver. The waiver of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach.
14.5. Severability. If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way.
14.6. Changes to Agreement. We may make changes to this Agreement at any time. If we make any material changes we may notify you via email if you have created an account (sent to the e-mail address specified in your account) by posting the revised Agreement on the Site, or by other means. You should review our Agreement each time you access the Site or use the Services. All material changes will become effective 14 days following notice. Your continued access or use of the Site or Services following the effective date of notice constitutes your agreement to such changes. In the event that notice of a material change is not provided, such change shall become effective upon the next renewal of your subscription.
14.7. Force Majeure. Substantial will not be liable by reason of any failure or delay in the performance of its obligations on account of events beyond its reasonable control which may include denial-of-service attacks, a failure by a third-party hosting provider or utility provider, strikes, shortages, riots, fires, acts of God, war, terrorism, and governmental action.
14.8 Relationship of the Parties; No Third Party Beneficiaries. Substantial and you are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between Substantial and you. There are no third party beneficiaries to this Agreement.
14.9. Governing Law; Forum; Waiver of Jury Trial. This Agreement will be construed in accordance with and governed exclusively by the laws of the State of Washington applicable to agreements made among Washington residents and to be performed wholly within such jurisdiction, regardless of the parties’ actual domiciles. Substantial and you consent to the exclusive jurisdiction and venue of the state and federal courts of King County, Washington. EACH PARTY HEREBY WAIVES ANY RIGHT TO JURY TRIAL IN CONNECTION WITH ANY ACTION OR LITIGATION IN ANY WAY ARISING OUT OF OR RELATED TO THIS AGREEMENT.
14.10. Entire Agreement. This Agreement, including all agreements referred to and incorporated herein, sets forth the entire understanding and agreement between you and Substantial, and supersedes any and all other oral or written agreements or understandings between us.