Mason

1. Acceptance of terms

Mason, a Frank Inc. product (“Mason” or “we”), provides its Service (as defined below) to you through its web site located at trymason.com (the “Site”), subject to this Terms of Service agreement (“TOS”). By accepting this TOS or by accessing or using the Service or Site, you acknowledge that you have read, understood, and agree to be bound by this TOS. If you are entering into this TOS on behalf of a company, business or other legal entity, you represent that you have the authority to bind such entity and its affiliates to this TOS, in which case the terms “you” or “your” shall refer to such entity and its affiliates. If you do not have such authority, or if you do not agree with this TOS, you must not accept this TOS and may not use the Service.

Mason may change this TOS from time to time by providing thirty (30) days prior notice either by emailing the email address associated with your account or by posting a notice on the Site. You can review the most current version of this TOS at any time via trymason.com. The revised terms and conditions will become effective thirty (30) days after we post or send you notice of such changes, and if you use the Service after that date, your use will constitute acceptance of the revised terms and conditions. If any change to this TOS is not acceptable to you, your only remedy is stop using the Services.

As part of the registration process, you will identify an administrative username and password for your account (“Account”).

2. Description of Service

The “Service(s)” includes (a) the Site, (b) Mason’s software-as-a-service platform for managing software development projects and (c) all software (including the Software, as defined below), data, reports, text, images, sounds, video, and content made available through any of the foregoing (collectively referred to as the “Content”). Any new features added to or augmenting the Service are also subject to this TOS.

3. Your accounts

To use our Services, you will be asked to create an account. As part of the account creation process, you’ll be asked to provide your email address, create a password, and verify that you’re a human being by providing a telephone number to which we’ll send you a verification code to enter into the form. Until you apply for an account, your access to our Services will be limited to what is available to the general public. When registering an account, you must provide true, accurate, current and complete information about yourself as requested during the account creation process. You must also keep that information true, accurate, current and complete after you create your account. You may also create multiple accounts as well as sub-accounts.

You are solely responsible for all use (whether or not authorized) of our Services under your account(s) and subaccount(s), including for the quality and integrity of your Customer Data and each of your applications. You are also solely responsible for all use and for all acts and omissions of anyone that has access to your application (“End Users"). You agree to take all reasonable precautions to prevent unauthorized access to or use of our Services and will notify us promptly of any unauthorized access or use. We will not be liable for any loss or damage arising from unauthorized use of your account.

4. General conditions / Access of accounts

A. Subject to the terms and conditions of this TOS, you may access and use the Service only for lawful purposes. All rights, title and interest in and to the Service and its components will remain with and belong exclusively to Mason. You shall not (a) sublicense, resell, rent, lease, transfer, assign, time share or otherwise commercially exploit or make the Service available to any third party; (b) use the Service in any unlawful manner (including without limitation in violation of any data, privacy or export control laws) or in any manner that interferes with or disrupts the integrity or performance of the Service or its components, or (c) modify, adapt or hack the Service to, or otherwise attempt to gain unauthorized access to the Service or its related systems or networks. You shall comply with any codes of conduct, policies or other notices Mason provides you or publishes in connection with the Service, and you shall promptly notify Mason if you learn of a security breach related to the Service.

B. Any software that may be made available by Mason in connection with the Service (“Software”) contains proprietary and confidential information that is protected by applicable intellectual property and other laws. Subject to the terms and conditions of this TOS, Mason hereby grants you a non-transferable, non-sublicensable and non-exclusive right and license to use the object code of any Software on a single device solely in connection with the Service, provided that you shall not (and shall not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code or sell, assign, sublicense or otherwise transfer any right in any Software. You agree not to access the Service by any means other than through the interface that is provided by Mason for use in accessing the Service. Any rights not expressly granted herein are reserved and no license or right to use any trademark of Mason or any third party is granted to you in connection with the Service.

C. You are solely responsible for all data, information, feedback, suggestions, text, content and other materials that you upload, post, deliver, provide or otherwise transmit or store (hereafter “post(ing)”) in connection with or relating to the Service (“Your Content”). You agree to cooperate with and provide reasonable assistance to Mason in promoting and advertising the Services.

D. By posting Your Content on or through the Service, you hereby do and shall grant Mason a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable license to use, modify, reproduce, distribute, display, publish and perform Your Content solely to provide the Services. Mason has the right, but not the obligation, to monitor the Service, Content, or Your Content. You further agree that Mason may remove or disable any Content at any time for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content), or for no reason at all.

E. You understand that the operation of the Service, including Your Content, may be unencrypted and involve (a) transmissions over various networks; (b) changes to conform and adapt to technical requirements of connecting networks or devices and (c) transmission to Mason’s third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to operate and maintain the Service. Accordingly, you acknowledge that you bear sole responsibility for adequate security, protection and backup of Your Content. Mason will have no liability to you for any unauthorized access or use of any of Your Content, or any corruption, deletion, destruction or loss of any of Your Content.

F. You shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, server, software, operating system, networking, web servers, long distance and local telephone service (collectively, “Equipment”). You shall be responsible for ensuring that such Equipment is compatible with the Services (and, to the extent applicable, the Software) and complies with all configurations and specifications set forth in Mason’s published policies then in effect. You shall also be responsible for maintaining the security of the Equipment, your Account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of your Account or the Equipment with or without your knowledge or consent.

G. The failure of Mason to exercise or enforce any right or provision of this TOS shall not be a waiver of that right. You acknowledge that this TOS is a contract between you and Mason, even though it is electronic and is not physically signed by you and Mason, and it governs your use of the Service.

H. Except as allowed by applicable law, you will not reverse engineer, decompile, disassemble or otherwise create, attempt to create or derive, or permit or assist anyone else to create or derive the source code of any software provided in connection with our Services.

5. Representations and warranties

You represent and warrant to Mason that (i) you have full power and authority to enter into this TOS; (ii) you own all Your Content or have obtained all permissions, releases, rights or licenses required to engage in your posting and other activities (and allow Mason to perform its obligations) in connection with the Services without obtaining any further releases or consents; (iii) Your Content and other activities in connection with the Service, and Mason’s exercise of all rights and license granted by you herein, do not and will not violate, infringe, or misappropriate any third party’s copyright, trademark, right of privacy or publicity, or other personal or proprietary right, nor does Your Content contain any matter that is defamatory, obscene, unlawful, threatening, abusive, tortious, offensive or harassing; and (iv) you are eighteen (18) years of age or older.

6. Fees, payment terms, taxes

6.1 (Fees) You agree to pay the usage fees set forth in your “Rate Schedule” (which is either our standard schedule of fees, as may be updated from time to time, and/or any other order forms for our Services ordered by you and accepted in writing by us). In addition, you agree to pay any applicable support fees in connection with your order of any support services pursuant to our Support Terms.

6.2 (Taxes) Unless otherwise stated in your Rate Schedule, you are responsible for and shall pay all applicable taxes. This includes all federal, state and local taxes, fees, charges, surcharges or other similar exactions, imposed on or with respect to our Services whether these taxes are imposed directly on you or on Mason and include, but are not limited to, sales and use taxes, utility user’s fees, excise taxes, VAT, any other business and occupations taxes, 911 taxes, franchise fees and universal service fund fees or taxes. For purposes of this section, taxes do not include any taxes that are imposed on or measured by the net income, property tax or payroll taxes of Mason.

6.3 (Payment Terms) Subject to certain credit requirements as determined by us, we may let you pay amounts due under these Terms in arrears. If we let you to do that, you will make all of the payments due hereunder within thirty (30) days of the date of the invoice.

Unless you and Mason agree otherwise in writing, all fees due under these Terms are payable in United States dollars. Payment obligations can’t be canceled and fees paid are non-refundable. Subject to Section 6.4 (Fee Disputes), if you are overdue on any payment and fail to pay within ten (10) business days of a written notice of your overdue payment, then we may assess and you must pay a late fee. The late fee will be either 1.5% per month, or the maximum amount allowable by law, whichever is less. Subject to Section 6.4 (Fee Disputes) and following the overdue notice, we may also suspend our Services to your account until you pay the amount you are overdue plus the late fee.

6.4 (Fee Disputes) You must notify us in writing if you dispute any portion of any fees paid or payable by you under this Agreement. You must provide that written notice to us within sixty (60) days of the applicable charge and we will work together with you to resolve the applicable dispute promptly. If you do not provide us with this written notice of your fee dispute within this 60 day period, you will not be entitled to dispute any fees paid or payable by you.

6.5 (Suspension) If your use of our Services exceeds the amounts prepaid by you or of if you fail to pay any amounts due by you under Section 10 of the Agreement, we may suspend our Services associated with your account without prior notice to you. We will have no liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that you may incur with connection with any suspension of our services pursuant to this section.

7. Termination

Mason reserves the right, in its sole discretion, to restrict, suspend, or terminate this Agreement and your access to all or any part of the Site or the Content at any time and for any reason without prior notice or liability. Mason reserves the right to change, suspend, or discontinue all or any part of the Site at any time without prior notice or liability. However, all accrued rights to payment and the terms of Section 4-12 shall survive termination of this TOS.

8. Disclaimer of warranties

8.1 (No Warranty) The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Mason or by third-party providers, or because of other causes beyond our reasonable control. However, the Service, including the site and content, and all server and network components are provided on an “as is” and “as available” basis without any warranties of any kind, and Mason expressly disclaims any and all warranties, whether express or implied, including, but not limited to, the implied warranties of merchantability, title, fitness for a particular purpose, and non-infringement. you acknowledge that Mason does not warrant that the Service will be uninterrupted, timely, secure, error-free or virus-free, nor does it make any warranty as to the results that may be obtained from use of the Services, and no information, advice or services obtained by you from Mason or through the Service shall create any warranty not expressly stated in this TOS.

8.2 (Beta Services) FROM TIME TO TIME, YOU MAY HAVE THE OPTION TO PARTICIPATE IN A PROGRAM WITH MASON WHERE YOU GET TO USE ALPHA OR BETA SERVICES, PRODUCTS, FEATURES AND DOCUMENTATION (“BETA SERVICES”) OFFERED BY US. THESE BETA SERVICES ARE NOT GENERALLY AVAILABLE AND MAY CONTAIN BUGS, ERRORS, DEFECTS OR HARMFUL COMPONENTS. ACCORDINGLY, WE ARE PROVIDING THE BETA SERVICES TO YOU “AS IS.” WE MAKE NO WARRANTIES OF ANY KIND WITH RESPECT TO THE BETA SERVICES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NOTWITHSTANDING ANY PUBLISHED DOCUMENTATION THAT STATES OTHERWISE, MASON DOES NOT WARRANT THAT THE BETA SERVICES WILL BE ERROR-FREE OR THAT THEY WILL MEET ANY SPECIFIED SERVICE LEVEL, OR WILL OPERATE WITHOUT INTERRUPTIONS OR DOWNTIME.

9. Limitation of liabilities

EXCEPT FOR LIABILITY ARISING FROM VIOLATIONS OF SECTIONS 11 (INDEMNIFICATION), UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL MASON BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST DATA, OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES, EVEN IF WE HAD BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT AS DESCRIBED IN THIS SECTION 9, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL MASON BE LIABLE TO YOU FOR ANY DIRECT DAMAGES, COSTS OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID BY YOU DURING THE TWELVE (12) MONTHS PRECEDING THE INCIDENT OR CLAIM.

THE PROVISIONS OF THIS SECTION 9 ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.

10. Ownership and Confidentiality

10.1 (General) As between you and Mason, we exclusively own and reserve all right, title and interest in and to our Services. As between you and Mason, you exclusively own and resver all right, title and interest in Your Applications and the content of any communications sent through integration with our Services.

10.2 (Use of Marks) Subject to these Terms, we both grant each other the right to use and display each other’s name and logo (the Licensor Marks) on our respective websites and in other promotional materials solely in connection with each of our respective activities under these Terms. All of this use of the Licensor Marks will be in accordance with the each other’s applicable usage guidelines and will inure to the benefit of Licensor. The one of us using the other’s Licensor Marks under this subsection will not use, register or take other action with respect to any of the Licensor Marks, except to the extent allowed in advance in writing by the one of us whose Licensor Marks are being used. In using the Licensor Marks under this subsection, the one of us using the other’s Licensor Marks will always use the then-current Licensor Marks and will not add to, delete from or modify any of Licensor Marks. The one of us using the other’s Licensor Marks will not, at any time, misrepresent the relationship between us. The one using the other’s Licensor Marks will not present itself as an affiliate or other legal agent of the one of us whose Licensor Marks are being used. The rights to use and display each other’s Licensor Marks under this subjection will end automatically in the event these Terms terminate.

10.3 (Confidentiality) 'Confidential Information' means any information or data, regardless of whether it is in tangible form, disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential given the nature of the information and the circumstances surrounding disclosure. 'Confidential Information' does not include any information which: (i) is publicly available through no fault of receiving party; (ii) was properly known to receiving party, without restriction, prior to disclosure by the disclosing party; (iii) was properly disclosed to receiving party, without restriction, by another person without violation of disclosing partys rights; or (iv) is independently developed by the receiving party without use of or reference to the disclosing party's Confidential Information.

Each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of this Agreement and it will not disclose such information to any third party without the other party's prior written consent, except as otherwise permitted hereunder. Each party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. Each party may disclose the Confidential Information of the other party, in whole or in part to its employees, representatives, actual or potential investors and subcontractors who have a need to know and are legally bound to keep such information confidential consistent with the terms of this Section. Either party may disclose the Confidential Information of the other party as required by law, upon prior written notice to the other party (where allowed by law); provided that such party will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law.

10.4 (Injunctive Relief) 'The parties expressly acknowledge and agree that no adequate remedy exists at law for an actual or threatened breach of this Section 11 and that, in the event of an actual or threatened breach of the provisions of this Section, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Section.

11. Indemnification

You shall defend, indemnify, and hold harmless Mason from and against any claims, actions or demands, including without limitation reasonable legal and accounting fees, arising or resulting from your breach of this TOS, any of Your Content, or your other access, contribution to, use or misuse of the Service. Mason shall provide notice to you of any such claim, suit or demand. Mason reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting Mason’s defense of such matter.

12. U.S. Government matters

You may not remove or export from the United States or allow the export or re-export of the Services or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the software and documentation installed by Mason on your Equipment (if applicable) are “commercial items” and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this TOS and will be prohibited except to the extent expressly permitted by the terms of this TOS

13. Assignment

You may not assign this TOS without the prior written consent of Mason, but Mason may assign or transfer this TOS, in whole or in part, without restriction.

14. Miscellaneous

If any provision of this TOS is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this TOS will otherwise remain in full force and effect and enforceable. Both parties agree that this TOS and any Additional Terms as applicable, are the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this TOS, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this TOS and you do not have any authority of any kind to bind Mason in any respect whatsoever. In any action or proceeding to enforce rights under this TOS, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this TOS will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.

15. Governing law

This TOS shall be governed by the laws of the State of California without regard to the principles of conflicts of law. Unless otherwise elected by Mason in a particular instance, you hereby expressly agree to submit to the exclusive personal jurisdiction of the federal and state courts of the State of California or the purpose of resolving any dispute relating to your access to or use of the Service.

16. Our use and storage of customer data

You acknowledge that you have read Mason’s Privacy Policy and understand that it sets forth how we will collect, store, and use your Customer Data. “Customer Data" consists of information made available to us through your use of our Services under these Terms, which includes information such as your name, contact information, billing records, call or messaging logs, and traffic routing information, as well as the content of communications sent through or integrated with our Services, such as audio recordings, message bodies, and call recording transcriptions. If you do not agree to Mason’s Privacy Policy, you must stop using our Services.

You further acknowledge and agree that we may access or disclose Customer Data, including the content of communications stored on our systems, if: (i) we believe that disclosure is reasonably necessary to comply with any applicable law, regulation, legal process or government request, (ii) to enforce our agreements and policies, (iii) to protect the security or integrity of our services and products, (iv) to protect ourselves, our other customers, or the public from harm or illegal activities, or (v) to respond to an emergency which we believe in good faith requires us to disclose data to assist in preventing a death or serious bodily injury.

17. DMCA

The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. Mason will promptly process and investigate notices of alleged infringement and will take appropriate actions under the DMCA and other applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement should be emailed to Mason’s Copyright Agent at info@trymason.com (subject line: “DMCA” Takedown Request”). You may also contact us by mail or facsimile at: Attention: Copyright Agent Mason 548 Market St #33713, San Francisco, CA, 94104.

Notice: To be effective, the notification must be in writing and contain the following information:

• a.an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
• b.a description of the copyrighted work or other intellectual property that you claim has been infringed;
• c.a description of where the material that you claim is infringing is located on the Site, with enough detail that we may find it on the Site;
• d.your address, telephone number, and email address;
• e.a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law;
• f.a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner‘s behalf.

Counter-Notice: If you believe that the relevant Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use such Content, you may send a written counter-notice containing the following information to the Copyright Agent:

• a.your physical or electronic signature;
• b.identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
• c.a statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
• d.your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court located within the Northern District of California and a statement that you will accept service of process from the person who provided notification of the alleged infringement.

If a counter-notice is received by the Copyright Agent, Mason will send a copy of the counter- notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at Mason’s sole discretion.

Repeat Infringer Policy: In accordance with the DMCA and other applicable law, Mason has adopted a policy of terminating, in appropriate circumstances and at Masons sole discretion, members who are deemed to be repeat infringers. Mason may also at its sole discretion limit access to the Site and/or terminate the memberships of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.