Calabrio Mobile App

Terms of Use

Last Updated: September 23, 2019

These terms and conditions create a contract between Calabrio, Inc. and You, even if you are using the App on behalf of a company (the “Terms of Use”). Please read the Terms of Use carefully. By downloading, browsing, accessing, or using this Mobile Application (the “App”), you agree to be bound by the Terms of Use. If you disagree with any of the terms stated herein, you must immediately discontinue your use of the App. Your continued use of the App shall constitute your ongoing acceptance of these Terms of Use. If at any time you wish to terminate these Terms of Use, you may do so at any time by closing your account and ceasing use of the App and/or the Services and Software.

1          Scope of Agreement

1.1       Scope. These Terms of Use govern your use of Calabrio’s services (“Services”), through which you have access to certain components of the Calabrio ONE software platform (the “Software”) through the App, which is accessible via a mobile device or other mobile media platform. Your use of the Software is subject to those terms and conditions you entered into with Calabrio or through one of Calabrio’s authorized resellers. Your use of the App is subject to the terms and conditions of these Terms of Use.

1.2       Modifications. Calabrio may, at any time, update these Terms of Use, provided that all material changes to the Terms of Use will be accompanied with notification to you, either through a request for you to accept the updated terms and conditions or a notice within the App. Calabrio hereby agrees that any updates to the Terms of Use shall not be applied retroactively and adherence to the new terms shall commence at the time the updates are released. Your continued use of the App following notification of updates to the Terms of Use shall be deemed your consent to such updates.

2          General Terms

2.1       Your Responsibilities. You shall adhere to the obligations and responsibilities contained within these Terms of Use, as well as with any master services agreements and/or end user licensing agreements governing your use of the Software. You agree to ensure your mobile device has sufficient bandwidth to operate the Software and Services while using the App. You are responsible for ensuring your usernames, passwords, and other login credentials are compliant and consistent with any requirements your company has regarding technology, services, and software. You are responsible for the legality of any data you use in connection with the App. You are responsible for compliance with all federal, state, and local laws, regulations, and ordinances regarding your use of the App and your collection of any personal information while using the Software. You shall ensure your use of the App is in compliance with all applicable data privacy laws. You will reasonably cooperate with Calabrio if you identify any areas of the App which do not conform with the Documentation and/or if you reasonably believe there is any noncompliance with these Terms of Use.

2.2       Abusive or Illegal Activity. You agree that you shall not use the App for any illegal, abusive, threatening, or harmful activity. You shall not use the App to post any libelous, defamatory, obscene, offensive, or other harmful material, nor shall use post any material that infringes any intellectual property right held by a third party. You shall ensure your use of the App is consistent with any additional agreements with Calabrio and/or an authorized reseller of Calabrio.

2.3       Right of Access. Calabrio reserves the right to limit your use (including by terminating or suspending your use) of the App or related Services if Calabrio believes, in its sole discretion, you are (i) not in compliance with these Terms of Use (ii) misusing the App or the Services, or (iii) in violation or any applicable laws.. Calabrio will use best efforts to ensure notice is provided to you as soon as reasonably practicable following Calabrio’s restriction of your access, including a reasonable time to cure any noncompliance. Promptly upon confirming you have cured noncompliance, Calabrio will reinstate your access to the, App.

2.4       Your Account and Data. Your account belongs to you, even if your use of the App is subject to an arrangement between Calabrio and your employer. Notwithstanding the foregoing, your employer obtained the right for you to use the App through a master agreement with Calabrio or an authorized reseller of Calabrio and, as such, your employer has all of the rights provided to it under that master agreement, as evidenced by the documentation finalized by the parties prior to making the Services and Software available.

2.5       Privacy. Calabrio will adhere to its Privacy Policy for any information accessed, stored, or processed while using the App.

2.6       Service Availability. Calabrio may update, modify, upgrade, discontinue, or otherwise change any aspect of the App, including the Services provided. Calabrio does not make any warranties regarding current or future functionalities of the components of the Services within the App. You understand that the App is made available through your mobile connections. Calabrio makes no representations or warranties that the App will run error-free or that the Services will be uninterrupted.

3          Intellectual Property

3.1       Title. Calabrio retains sole and exclusive right to, title in, and interest to, the Services, Software, the App, and any content and/or documentation related thereto. Except for any other rights contained in these Terms of Use, you will have no right in any part of the App. All right, title, and interest in or to any copyrights, trademarks, or other proprietary rights relating to the App and any related logos and product names are reserved. You shall not obscure, alter, or modify any copyright, trademark, or other proprietary right notice on or related to the App. You hereby provide Calabrio with a perpetual, non-cancelable, worldwide, non-exclusive right to utilize any usage data, for any legitimate business purposes, provided that Calabrio will comply with any and all legal restrictions regarding the use and disclosure of such information.

3.2       Restrictions. You shall not: (i) access or use any portion of the App except as expressly permitted in these Terms of Use; (ii) disassemble, decompile, or otherwise reverse engineer all or any portion of the App; (iii) use the App for any unlawful purposes; (iv) export the App or use the App in violation of applicable laws or regulations; or (v) modify, adapt, or use the App to develop any software application intended for resale which uses the App in whole or in part. You shall not take any action that imposes an unreasonable or disproportionately large load on the App or its infrastructure. You shall not interfere with or attempt to interfere with the operations of the App or any activities conducted on the App, nor shall you bypass any measures Calabrio utilizes to prevent or restrict access to the App.

3.3       Third Party Content. To the extent you utilize any apps or content are responsible for complying with any terms and conditions established by third parties in any content or applications intended to be compatible with your use of the App or the Service. Any third party apps are subject to their own terms and condition for use. To the extent permissible by law, Calabrio shall have no responsibility or liability for any third party apps or terms of use for such apps.

4          Disclaimer; Limitation of Liability

4.1       Disclaimer. Calabrio provides  the App to you on an “As-Is” basis, without warranty of any kind. For clarity, to the fullest extent permissible by law, Calabrio hereby disclaims all implied warranties (including the implied warranties of merchantability, fitness for a particular purpose, non-infringement, and accuracy of data). Calabrio does not guarantee the App will operate uninterrupted or error-free.

4.2       Limitation of Liability. Under no circumstances shall Calabrio be liable for special, indirect, punitive, incidental, consequential, or similar damages, whether an action is in contract or tort, and regardless of the theory of liability. Calabrio shall not be liable for (a) error or interruption of use or for loss or inaccuracy or corruption of any data; (b) cost of procurement of substitute goods, services, or technology; (c) loss of business or lost profits; or (d) any matter beyond Calabrio’s reasonable control. In no instance shall Calabrio’s liability for direct damages under these Terms of Use exceed the lesser of (i) the fees paid by your employer for the services for the year in which the cause of action occurred or (ii) $100,000.

5          Termination Rights

5.1       Termination. You may terminate the Terms of Use at any time by discontinuing your use of the App and closing your account with Calabrio. Calabrio may terminate these Terms of Use at any time by providing notice to you. At the time of termination by either party, you shall stop use of the App and Services. You and Calabrio agree that the following terms and conditions shall survive any termination of the Terms of Use: (1) Section 3, “Intellectual Property,” (2) Section 4, “Disclaimer; Limitation of Liability; (3) Section 6, “Confidential Information,” (4) Section 7, “Governing Law,” and (5) Section 8, “Miscellaneous”)

6          Confidential Information

6.1       Confidential Information. It is expected that one Party (disclosing Party) may disclose to the other Party (receiving Party) certain information which may be considered confidential and/or trade secret information (“Confidential Information”).  Confidential Information shall specifically include the App, the Services, and the Software.  Confidential Information shall not include information which:  (i) is or becomes public knowledge through no fault of the receiving Party; (ii) was in the receiving Party’s possession before receipt from the disclosing Party; (iii) is rightfully received by the receiving Party from a third party without any duty of confidentiality; (iv) is disclosed by the disclosing Party without a duty of confidentiality on the third party; (v) is independently developed by the receiving Party; or (vi) is disclosed with the prior written approval of the disclosing Party. Confidential Information of disclosing Party may be disclosed in response to a valid court order or other legal process, only to the extent required by such order or process and, if allowed by law, only after the recipient has given the owner written notice of such court order or other legal process promptly and the opportunity for the owner to seek a protective order or confidential treatment of such Confidential Information.  The Parties agree to hold Confidential Information of the other Party in confidence and to protect the disclosed Confidential Information by using the same degree of care to prevent the unauthorized use, dissemination or publication of the Confidential Information as they use to protect their own Confidential Information of a like nature but in no event with less than reasonable care.  The Parties agree not to make Confidential Information of the other Party available in any form to any third party except as required to exercise the licenses granted in the Agreement (or otherwise expressly permitted therein) or to use Confidential Information of the other Party for any purpose other than for the Permitted Use of the SaaS or for fulfilling its obligations under the Agreement.  The Parties agree to restrict disclosure of the Confidential Information to those who have a “need to know” and to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed in violation of the provisions of the Agreement.  Further, the Parties agree that its breach of any obligation herein may cause irreparable damage to the other Party and that the other Party shall be entitled to seek equitable remedies, in addition to other remedies hereunder or at law, in the event of such breach.

6.2       Your Feedback. Calabrio’s obligation of confidentiality set forth in this Section 6 shall not apply to any suggestions and feedback provided by you in connection with any current or future product, service, or functionality.

6.3       Future Functionality. You acknowledge your use of the App is not contingent on any future functionality or features, nor is it dependent on any oral or written statements of Calabrio on its vision for future functionalities or features.

7          Governing Law

7.1       European Users. If you reside with the European Union or EMEA, you agree that your use of the App shall be governed by the laws of England and Wales, excluding conflicts of laws rules. All claims or disputes shall be resolved within the courts of England and each party hereby agrees to personal jurisdiction of the English courts.

7.2       Users outside of Europe. If you reside within the United States of America or any other country outside of the European Union or EMEA, you agree that your use of the App shall be governed by the laws of the State of Delaware. All claims or disputes shall be resolved within the courts of Kent County, Delaware and each party hereby agrees to personal jurisdiction of the courts within Kent County, Delaware.

8          Miscellaneous 

8.1       Notice. Calabrio will provide notices to you within the App or Service. You agree that all notices to Calabrio shall be delivered to [email protected].

8.2       Headings.  The various Section headings of these Terms of Use are inserted only for convenience of reference and are not intended, nor shall they be construed to modify, define, limit or expand the intent of the parties.

8.3       Severability.  If any provision of these Terms of Use are held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable.  If a court of competent jurisdiction finds that any provision of these Terms of Use are invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed written, construed, and enforced as so limited.

8.4       Waiver of Contractual Right.  The failure of either you or Calabrio to enforce any provision of these Terms of Use shall not be construed as a waiver or limitation of that party’s right to subsequently enforce and compel strict compliance with every provision of these Terms of Use.

8.5       Entire Agreement.  These Terms of Use set forth the entire understanding of the Parties with respect to the subject matter herein, and supersede any and all prior oral and written understandings, quotations, communications and agreements.

8.6        Force Majeure.  Calabrio shall not be liable for any failure or delay in the performance of its obligations hereunder on account of strikes, terrorist activity, shortages, riots, insurrection, fires, floods, power outages, storms, cybercrime, explosions, war, governmental action, labor conditions, earthquakes, terrorism, supplier bankruptcy or default, failure, delay or interruption by third parties, including without limitation, communications providers, or any other cause which is beyond Calabrio’s reasonable control.