Tekata.io Terms of Use

Welcome to Tekata.io.  Tekata LLC  (“Tekata” or “Company’”) is the owner of the websites located at https://tekata.io and any other associated sites owned or operated by or for the Company (each a “Site’) and provides through its Sites certain proprietary online tools and applications to assess and improve workplace performance for project teams.  Tekata products and services include its initial tool, Tekata, for identification of necessary team member skill sets and improvements,  and such other products or services as may be offered by Tekata now or in the future and whether as a downloaded software program, on a SaaS basis or as a mobile application (each, a Service”).

1.       Legal Agreement

Thank you for registering to be a user of Tekata. These Terms of Use apply to You, a user of the Service, and create a binding, legal agreement (“Agreement”) between You, as an individual, or if You are purchasing or using the service as part of Your job responsibilities, the company or other legal entity that You represent, and Tekata, LLC.

Please read all the terms and conditions of this Agreement carefully. By registering for and/or using the Service, You agree that You are bound by the terms and conditions of this Agreement, and You represent and warrant that You have full power, authority and legal capacity to enter into this Agreement.  Certain features of the Service may be subject to additional guidelines, terms, or rules, which will be posted on the Service in connection with such features. All such additional terms, guidelines, and rules are incorporated by reference into this Agreement. Please contact us at privacy-requests@tekata.io if You have any questions about this Agreement.

Tekata reserves the right, in its sole discretion, to modify or change this Agreement at any time by notifying You or by posting the changes to the Service or Site.  By continuing to use the Site or Service following notification or posting of such changes, You agree to  the changes.   Tekata will use reasonable commercial efforts to provide notice of material changes to You. 

2.     Definitions

You” or “Customer” means the individual or entity subscribing to the Service. 

Data” means the information, data and other content provided by You in connection with and through use of the Service.

Documentation” means Tekata’s online user guides, help manuals and other information relating to use of the Service as provided and updated by Tekata from time to time, as accessible via the Service.

Professional Services” means the professional, consulting and/or advisory services provided to You by Tekata, which may include training services, consulting services or other professional services, as agreed and included on Your Registration or pursuant to a statement of work or other agreement between the parties.

Registration” means an order form or registration completed by You, whether online or any other process, when purchasing the Service and any Professional Services.

Results” means the results and information generated via the Service, including through processing and use of the Data.

Software” means Tekata’s proprietary software, and all updates and associated documentation thereto made available as a part of a Service pursuant to this Agreement. 

Subscription Period” means the period for which You subscribe for use of the Service.  Unless otherwise as set forth in Your Registration, all subscriptions are monthly, and will automatically renew. 

3.     Service.

3.1           Subject to the terms of this Agreement, including Your payment of all applicable fees, if any, Tekata will provide the Service on a subscription basis to You during the Subscription Period. Your rights to use the Service are non-exclusive and non-transferable.  You may use the Service only for Your own internal business purposes, and not for the benefit of any other third party.

3.2           As part of the Service and as part of the standard support, Tekata will provide reasonable technical support to You via e-mail during Tekata’s regular business hours.  Tekata will use commercially reasonable efforts to make the Service available on a 24/7/365 basis, subject to downtime for scheduled and emergency maintenance purposes.  Tekata will, to the extent practicable, make reasonable efforts to schedule maintenance downtime outside of regular business hours, as may be further defined and stated on the Site.

3.3           Tekata may from time to time modify the Site and the Service and add, change, or delete features of the Service in its sole discretion, without notice to You.  Your continued use of the Service after any such changes to the Service means You accept these changes.  Tekata will use commercially reasonable efforts to post information on the Site or Service regarding material changes to the Service.

3.4           The Service may be used and accessed for Your internal business purposes and by Your employees and independent contractors which are identified as project team members (“Authorized Users”).  Third parties may not use and access the Service provided to You for their own or for another person’s benefit.  You will not charge any fees to Authorized Users for use of the Service. Each Authorized User will use the Service only in accordance with the terms of this Agreement.    

3.5           You agree that all user information provided to Tekata by You and/or the Authorized Users, such as for purposes of obtaining a user name and password, will be accurate and complete in all respects.  You also agree to promptly notify Tekata of any changes to any user information.  You understand and agree that You are solely responsible for: (a) all use of the Service made using Your user names and passwords, and (b) maintaining the confidentiality of Your user names and passwords.  Only one individual may access the Service at the same time using the same user name and password.  You agree to notify Tekata immediately of any unauthorized use of an Authorized User’s email address, user name or password, or any other breach of security regarding the Service of which You become aware. You understand and agree that certain information regarding You and the Authorized Users may be viewable by Your other Authorized Users.

3.6           You are not allowed to and warrant and agree not to:

  • Violate any local, state, national or international law or regulation in connection with use of the Service, or otherwise use the Service in any way that is in furtherance of criminal, fraudulent, or other unlawful activity
  • Interfere with or disrupt the Service or servers or networks connected to the Service
  • Violate any codes of conduct, requirements, terms of use, policies or regulations of networks connected to the Service
  • Interfere with or attempt to interfere with any other person’s use of the Service
  • Gain access to or attempt to gain access to any account, computers or networks related to the Service without authorization or access another customer’s Data without such customer’s consent
  • Use the Service to send or otherwise make available any viruses, Trojan horses, worms, corrupted files, or any other similar software that may damage the operation of another’s computer or property
  • Use the Service in a manner that results in excessive bandwidth usage, as determined in Tekata’s sole discretion
  • Impersonate any other person or entity, or misrepresent Your affiliation with any other person or entity
  • Forge headers or otherwise manipulate identifiers in order to disguise the origin of any content or communication transmitted through the Service.

3.7           Tekata has no obligation to monitor Your use of the Service, or any other customer’s use of the Service.  However, Tekata reserves the right to access, acquire, use, monitor, remove, retain or disclose any information, including Data, as necessary to satisfy any applicable law, rule or regulation or to respond to legal process or law enforcement and government requests, and You hereby authorize such action.

4.     Referrals You understand and agree that in connection with Your use of the Service, Tekata may provide to You referrals, including by links or registration forms made available on the Service, to third party service providers and vendors and employment or staffing agencies (“Third Party Providers”).  You understand and agree that Tekata may be paid by the Third Party Providers, including for the referral of customers.  You further understand and agree that Tekata makes no recommendation, warranty, promise or other representation that any Third Party Provider service or product or candidates will meet Your specific needs or purposes.  Tekata does not act as a representative or agent for either You or the Third Party Provider and if You purchase any products or services from a Third Party Provider or enter into any agreement with a Third Party Provider, Tekata is not a party to the transaction which will be solely between You and the Third Party Provider, even if the Third Party Provider’s services or products are made available through the Service. You will be responsible for paying any applicable fees to the Third Party Provider.  You agree that if You purchase a Third Party Provider service or product, Tekata may provide certain personally identifiable information regarding You or Your Authorized Users to such Third Party Provider as disclosed in connection with Your purchase of such service or product.

5.     Intellectual Property; Data

5.1           You agree that Tekata and its licensors own all intellectual property rights in and to the Service, the Software, and the Site, and all enhancements, modifications and improvements, including but not limited to the look and feel, structure, organization, design, algorithms, templates, data models, logic flow, text, graphics, logos, and screen displays associated therewith. You will not reverse engineer, decompile or disassemble the Software, or otherwise attempt to reconstruct or discover the source code for the Software.  You agree not to resell, lease, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party.  You may not use any page-scraper, spider, robot or other automatic device or methodology to access, acquire, copy or monitor any data or Results or other information provided on or through the Service.  Tekata reserves all rights in the Service not expressly granted to You hereunder. 

5.2           You shall retain ownership of the Data You provide in connection with the Service. You hereby grant to Tekata the right to copy, modify, analyze, archive, display and use Your Data solely for the purposes of and as necessary for the provision of the Service.  Tekata may also derive and compile from Your usage of the Service certain aggregated and/or analytical information, so long as the aggregated or analytical information does not include any identifying information about You or any individual. The aggregated data and metadata may be used for Tekata’s own purposes without restriction, including, but not limited to, using the data in conjunction with data from other sources to improve Tekata’s products and services and create new products.

5.3           Tekata may use or incorporate into the Service any suggestions, ideas, enhancement requests, feedback, or other information provided by You or any Authorized User relating to the Service, without any obligation, consideration or attribution to You or any Authorized User.

5.4           Tekata’s trademarks include TEKATA and such other trademarks and logos as used by Tekata now and in the future in connection with its products and services. You shall not use any Tekata trademarks without the prior written consent of TEKATA.  Any other company or product names used on the Site or in connection with the Service are the property of the respective trademark owner. 

6.     Fees and Expenses

6.1           Tekata may offer the Service to individual users without charge, but You understand that Tekata may at any time establish user or other fees for the Service.  If Tekata establishes usage fees, You understand that You will be obligated to pay the fees for continued use of the Service or Your use of the Service shall terminate.  Tekata may, as set forth on the Site or Service, charge fees for subscription use for an organization, corporation or other business.  In this event and if You meet the requirements for these fees, You agree to pay Tekata the applicable fees associated with the Service as set forth in the Site and/or Registration.  All payments are non-refundable and, unless otherwise agreed, shall be made in United States dollars.  Past-due payments will be subject to late payment charges of the lesser of: (a) one and one-half percent (1 ½ %) per month, or (b) the maximum rate allowed by law.  The fees and rates under this Agreement are subject to change by Tekata on at least thirty (30) days written notice, and Tekata may give notice by posting the updated fees and rates on the Site or applicable Service.  You shall be responsible for all applicable taxes, however designated, incurred in connection with this Agreement, including but not limited to state and local privilege, excise, sales, VAT, and use taxes and any taxes or amounts in lieu thereof paid or payable by Tekata, but excluding taxes based upon the net income of Tekata.

6.2           You understand and agree that You will be solely responsible for all equipment costs and any internet and wireless access required to use the Service and for the cost of all carrier and data charges imposed by Your service provider.

7.     Confidentiality and Security

7.1           “Confidential Information” means any information or data that is disclosed by one party to the other party in connection with this Agreement that is marked as confidential.  In addition, Your Confidential Information includes the Data and Results, and Confidential Information of Tekata (whether or not marked) includes the Service and Software, as well as the structure, organization, design, algorithms, templates, data models, logic flow, and screen displays associated with the Service and Software.  Confidential Information does not include information that the receiving party can show: (a) is or becomes publicly known or available without breach of this Agreement; (b) is received by a receiving party from a third party without breach of any obligation of confidentiality; or (c) was previously known by the receiving party as shown by its written records.

7.2           A receiving party agrees: (a) to hold the disclosing party’s Confidential Information in confidence, and to protect the disclosing party’s Confidential Information in the same manner that it protects the confidentiality of its own similar confidential information (but in no event using less than reasonable care); and (b) except as expressly authorized by this Agreement, not to, directly or indirectly, use, disclose, copy, transfer or allow access to the disclosing party’s Confidential Information.  Without limiting the foregoing, You shall disclose and allow access to the Service only for the purpose of supporting and augmenting Your use of the Service.  Notwithstanding the foregoing, a receiving party may disclose Confidential Information of the disclosing party as required by law, applicable regulatory authorities, or court order; in such event, such party shall use its best efforts to inform the other party prior to any such required disclosure.

7.3           Each party acknowledges and agrees that any violation of this Section 7 may cause the disclosing party irreparable injury for which the disclosing party would have no adequate remedy at law, and that the disclosing party shall be entitled to preliminary and other injunctive relief against the receiving party for any such violation.  Such injunctive relief shall be in addition to, and not in limitation of, all other remedies or rights that disclosing party shall have at law or in equity.

7.4           Tekata will take reasonable security measures designed to protect Your Confidential Information, including Your Data.  These measures will include the use of reasonable physical, administrative, and technical security techniques and systems designed to prevent unauthorized access and disclosure, maintain data accuracy, and ensure appropriate use of Your Confidential Information. 

7.5           You agree to the terms of Tekata’s privacy statement, which is located at https://tekata.io/privacy and is incorporated herein by reference (including any changes to Tekata’s privacy statement made in accordance with its terms).

7.6           Upon termination or expiration of this Agreement, the receiving party will return to the disclosing party or destroy all Confidential Information delivered or disclosed to the receiving party (including, with respect to You as receiving party, any downloaded Software), together with all copies in existence thereof at any time made by the receiving party; provided that return of Data or Results by Tekata to You is covered by Section 8.4 below.

8.     Term and Termination

8.1           This Agreement will be effective as of the Effective Date and, unless terminated earlier as permitted below, will continue for the initial Subscription Period.  After the initial Subscription Period, this Agreement shall automatically renew for successive renewal periods (each renewal term being the same length as the initial Subscription Period) based on Tekata’s then-current fees, unless either party provides notice of its intent to terminate this Agreement at the end of the then current Subscription Period, either through the Service or via email.

8.2           Either party may terminate this Agreement upon thirty (30) days prior written notice if the other party materially breaches any of the terms and conditions of this Agreement and such material breach is not cured within the thirty (30) day period.  Tekata will have the right to suspend Your, or any Authorized User’s, use of or access to the Service in the event Tekata determines in its sole discretion that You, or an Authorized User, have breached this Agreement. If a payment becomes ten (10) business days or more overdue, Tekata reserves the right to suspend Your access to the Service without liability to You, until payment is made in full.  If any payment becomes thirty (30) days or more overdue, Tekata may terminate this Agreement upon notice to You.  Tekata may terminate this Agreement without cause upon at least sixty (60) days prior written notice.  In such event, You will be entitled to a refund of any prepaid amounts for Service not delivered. 

8.3           The terms provided in Sections 5, 7, 8.3, 8.4, 10.2, 10.3, and 11-14 of this Agreement shall survive any termination of this Agreement.  In addition, upon termination You shall promptly pay Tekata all outstanding amounts due to Tekata under this Agreement.  If this Agreement is terminated by Tekata due to Your breach, or if You terminate this Agreement without cause prior to the end of the then-current Subscription Period, then all fees unpaid for the remainder of the current Subscription Period shall become immediately due and payable by You to Tekata as liquidated damages, without any further demand by Tekata. The parties acknowledge that Tekata’s actual damages arising from such termination would be difficult to determine with accuracy and, accordingly, have agreed to the foregoing liquidated damages, which the parties acknowledge is a reasonable estimate of Tekata’s potential losses.

9.     Independent Contractors

The parties are and intend to be independent contractors with respect to the services contemplated hereunder.  Tekata agrees that neither it, its employees nor its contractors shall be considered as having an employee status with You. No form of joint employer, joint venture, partnership, or similar relationship between the parties is intended or hereby created.

10.  Warranties; Disclaimers

10.1         You and Tekata each warrant that they have full authority to enter into this Agreement and are not bound by any contractual or legal restrictions from fulfilling their obligations hereunder.  You represent and warrant that all Data provided to Tekata in connection with Your use of the Site and the Service: (i) is owned by You, or You have the full right to provide the Data to Tekata; (ii) does not infringe or misappropriate any copyright, trademark, trade secret or other intellectual property right; (iii) does not violate any person’s right of privacy or publicity; and (iv) does not contain any unlawful, obscene, defamatory or libelous material.  You further represent and warrant that Your use of Data on the Site or in connection with the Service is not in breach of any covenant or obligation of confidentiality that You have to any other person or entity. You are solely responsible for the Data, and acknowledge that Tekata has no responsibility or intent to review or monitor any Data.

10.2         You shall be solely responsible for Your use of the Service. You acknowledge and agree that the Service is strictly a tool to be used in conjunction with good and reasonable business judgment by competent personnel.  Tekata does not warrant that the Service will operate without interruption or error-free.  While Tekata takes commercially reasonable measures to protect the security of the Service and Your Data, You understand that Tekata cannot guarantee  that the Service will be totally secure.  Under no circumstances will Tekata be held liable for any loss, corruption, deletion of or failure to store any Data or Results.  TEKATA DOES NOT WARRANT THAT THE SERVICE, ANY RESULTS OR ANY THIRD PARTY PROVIDER SERVICES OR PRODUCTS WILL BE FIT FOR YOUR PURPOSES, BE COMPLETE OR ACCURATE, OR BE SUITABLE FOR YOUR NEEDS.  EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, TEKATA MAKES NO WARRANTIES, EXPRESS OR IMPLIED, RELATING TO THE SERVICE OR ANY RESULTS, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTIES ARISING AS A RESULT OF CUSTOMER USAGE IN THE TRADE OR BY COURSE OF DEALING. TEKATA IS NOT RESPONSIBLE FOR ANY DECISIONS MADE OR ACTIONS TAKEN OR NOT TAKEN BY YOU OR ANY OTHER PERSON IN RELIANCE ON THE DATA OR RESULTS OR YOUR USE OF THE SERVICE OR ANY REFERRALS FOR THIRD PARTY PROVIDERS. 

11.  Indemnification

You, at Your expense, shall indemnify, defend and hold Tekata and its officers, directors, owners, employees, and affiliates harmless from and against all liability, damages, injuries, losses, costs and expenses (including attorney’s fees) arising out of or relating to Your use of the Service, including but not limited to liability, damages, injuries, losses, costs and expenses arising from any claims relating to: (a) Your breach of any representations, warranties, or covenants in this Agreement, (b) Your compliance (or failure to comply) with applicable laws and regulations, and (c) the Data or Your use of any Results.  Tekata shall provide You with prompt written notice of any such claim.

12.  Liability

12.1         The limit of Tekata’s liability (whether in contract, tort, negligence, strict liability in tort, or by statute or otherwise) to You or to any third party concerning performance or non‑performance by Tekata, or in any manner related to this Agreement or the Service, for any and all claims shall not exceed in the aggregate the greater of: (i) any Subscription Fees paid by You to Tekata hereunder with respect to the Service at issue during the three (3) months prior to the date that the relevant cause of action accrued and (ii) $100. 

12.2         In no event shall either party be liable for special, consequential, incidental, indirect or punitive loss, damage or expenses whether arising in contract or tort (including but not limited to lost profits, loss of data, or the cost of recreating lost data), even if it has been advised of their possible existence. 

12.3         The allocations of liability in this Section represent the agreed and bargained‑for understanding of the parties and Tekata’s compensation reflects such allocation.  These limitations of liability will apply notwithstanding any failure of essential purpose of any limited remedy.

13.  Dispute Resolution

13.1         The parties agree to work together in good faith to resolve any dispute regarding this Agreement internally and by escalating it to higher levels of management and optional mediation, prior to resorting to binding arbitration.

13.2         Any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination or invalidity thereof, that cannot be resolved by good faith negotiations shall be finally settled by binding arbitration conducted in the English language in Raleigh, NC (USA), under the commercial arbitration rules of the American Arbitration Association (“AAA”).  The prevailing party shall be entitled to an award of reasonable attorney fees incurred in connection with the arbitration in such amount as may be determined by the arbitrator.  The award of the arbitrator shall be the sole and exclusive remedy of the parties and shall be enforceable in any court of competent jurisdiction.  Notwithstanding anything contained in this Section to the contrary, each party shall have the right to institute judicial proceedings against the other party or anyone acting by, through or under such other party, in order to enforce the instituting party’s rights in and to its intellectual property or confidential information through specific performance, injunction or similar equitable relief. 

13.3         This Agreement shall be interpreted, construed, and governed by the laws of the State of North Carolina, without regard to its conflict of law provisions.  The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.

14.  Miscellaneous

14.1         If You are located in the European Union, You consent to the processing of personal information in the United States by Tekata in connection with the Service and as set forth herein and in the Privacy Policy.  .

14.2         Neither party shall be liable for any failure or delay in the performance of its obligations (except for payment obligations hereunder) due to causes beyond the reasonable control of the party affected, including but not limited to war, sabotage, insurrection, riot or other act of civil disobedience, strikes or other labor shortages, act of any government affecting the terms hereof, acts of terrorism, accident, fire, explosion, flood, hurricane, severe weather or other act of God, failure of telecommunication or internet service providers. 

14.3         This Agreement (including the Registration and any attachments thereto specifically agreed by the parties) and Tekata’s published policies constitutes the entire understanding of the parties with respect to its subject matter, and supersedes all prior or contemporaneous written and oral communications, understandings or agreements with respect to its subject matter.  No waiver of any provision of this Agreement, or of any rights or obligations of any party hereunder, will be effective unless in writing and signed by the party waiving compliance.  The failure by any party to exercise any right provided herein shall not be deemed a waiver or forfeiture of any such right.  Headings used in this Agreement are for convenience of reference only and shall not be deemed a part of this Agreement.

14.4         You shall have no right to assign this Agreement or any of Your rights or obligations hereunder. Tekata may assign this Agreement and any of its rights hereunder to third parties.

14.5         Every provision of this Agreement is intended to be severable. If any section of this Agreement is found to be invalid or unenforceable, then such section will be deemed amended and interpreted, if possible, in a way that renders it enforceable. If such an interpretation is not possible, then the section will be deemed removed from this Agreement and the rest of this Agreement will remain in full force and effect.

14.6         You agree to comply with all relevant export laws and regulations, including, but not limited to, the U.S. Export Administration Regulations and Executive Orders ("Export Controls"). You warrant that You are not a person, company or destination restricted or prohibited by Export Controls ("Restricted Person"). You will not, directly or indirectly, export, re-export, divert, or transfer the Software or Service, any portion thereof or any materials, items or technology relating to Tekata's business or related technical data or any direct product thereof to any Restricted Person.

 

 

Version No. 1

Effective Date: June 8th, 2018