Terms of Service for Sleeek

These Terms of Service for the Sleeek Cloud Service (the “Terms of Service”) is entered into by and between Fixstars Corporation, a Japanese corporation, (“Company”) and the business represented by the user or the individual in the event the user is not representing a business or acting in their capacity as an employee of a business (“Customer”). By using or accessing the Sleeek Cloud Service (the “Service”) Customer is agreeing to be bound by these Terms of Service. If Customer does not agree with any of these terms, Customer is prohibited from using or accessing the Service.

These Terms of Service constitutes a contract between Customer and Company regarding access to and use of the Service. Company recommends that Customer carefully read these Terms of Service before using the Service and do not hesitate to contact Company if Customer has any questions using this contact form https://sleeek.io/contact

Any inconsistencies between these Terms of Service and the Company’s Privacy Policy located at https://sleeek.io (the “Privacy Policy”) shall be resolved by Company in its sole and absolute discretion.

In the spirit of continuously improving its processes and operations, Company reserves the right to modify, at its sole discretion, these Terms of Service or to add new terms and conditions. By accessing and using the Service after amendments to these Terms of Service have been posted, Customer accepts to respect and be bound by such amended terms of these Terms of Service. Company invites Customer to consult these Terms of Service from time to time to be up-to-date.

1. Service

Subject to these Terms of Service, Company shall provide to Customer access to the features and functionality selected by Customer for the Service (the “Order”). From time to time, the parties may add or modify the Order which will be subject to these Terms of Service.

2. Registration

If Customer chooses to register for the Service, Customer shall provide accurate information and to keep such information up-to-date. Customer is responsible for (i) maintaining the confidentiality of passwords; (ii) any activity carried on under Customer’s user name; and (iii) exiting Customer’s account at the end of each session. Customer undertakes to notify Company in writing of any unauthorized use of Customer’s user name or password as soon as Customer is aware of such activity, by email or otherwise. Customer is responsible for any losses or damages incurred until the time of the written notice.

3. Fees and Billing

3.1 Fees and Fee Revisions. Customer shall pay all fees due according to the Order. Company may revise Service fees after the initial Order term with prior notice to Customer via email or posting on Company’s website. If Customer does not terminate its use of the Service before the effective date of the fee change, such new fees shall apply to Customer’s use of the Service.

3.2 Billing and Payment Terms. Unless otherwise indicated in the applicable Order, Company shall invoice Customer periodically in advance for fees for the Service, and payment of fees will be due. All payments must be made in U.S. dollars. Late payments hereunder will accrue interest at a rate of 1.5% per month, or the highest rate allowed by applicable law, whichever is lower.

3.3 Taxes. All payments required by these Terms of Service exclude all sales, value-added, use, on other taxes and obligations, all of which Customer will be responsible for and will pay in full, except for taxes based on Company’s' net income.

4. Customer's Obligations

4.1 Compliance with Law. Customer shall comply with all applicable laws in connection with its use of the Service. Customer acknowledges that Company exercises no control over the content of the information passing through Customer’s websites, systems, servers and network, and that it is the sole responsibility of Customer to ensure that the information it transmits and receives complies with all applicable laws and regulations.

4.2 Prohibited Uses of the Service. Customer shall NOT:

-use any "deep-link", "page-scrape", "robot", "spider" or other automatic device, program, algorithm or methodology, or any similar or equivalent manual process, to access, acquire, copy or monitor any portion of the Service or any content therein, or in any way reproduce or circumvent the navigational structure or presentation of the Service, to obtain or attempt to obtain any materials, documents or information through any means not purposely made available through the Service.

-attempt to gain unauthorized access to any portion or feature of the Service, or any other systems or networks connected to the Service or to any Company server, by hacking, password "mining" or any other illegitimate means.

-probe, scan or test the vulnerability of the Service or any networks connected to the Service, nor breach the security or authentication measures on the Service or any network connected to the Service.

-reverse look-up, trace or seek to trace any information on any other user of or visitor to the Service, or any other customer of Company, including any account not owned by Customer, to its source, or exploit the Service or any information made available or offered by or through the Service, in any way where the purpose is to reveal any information, including personal information, other than Customer’s own information, as provided for by the Service.

-take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Service or Company’s systems or networks, or any systems or networks connected to the Service.

-use any device, software or routine to interfere or attempt to interfere with the proper working of the Service or any transaction being conducted on the Service, or with any other person’s use of the Service.

-forge headers or otherwise manipulate identifiers in order to disguise the origin of any message or transmittal Customer sends to Company on or through the Service.

-deploy any kind of destructive software on the Service, such as a virus, computer worm, Trojan horse, time bomb, cancelbot or any other harmful file, program or code designed to interrupt, destroy or limit the functionality of the Service.

-use, reproduce, modify, adapt, translate, download or transmit the Service or any software therein, in whole or in part.

-sell, lease, rent, license or transfer the Service or otherwise allow access thereto to unauthorized persons.

-decompile, disassemble, decrypt, extract or reverse-engineer the Service or its components.

5. Confidential Information

5.1 Confidential Information. Each party acknowledges that it will have access to certain confidential information of the other party concerning the other party's business, plans, customers, technology, and products, including the terms and conditions of these Terms of Service (“Confidential Information”). Confidential Information will include, but not be limited to, each party's proprietary software and developer information. Each party shall not disclose to any third party (except as required by law or to that party’s attorneys, accountants and other advisors as reasonably necessary), any of the other party's Confidential Information and shall take reasonable precautions to protect the confidentiality of such information, except as expressly permitted by these Terms of Service.

5.2 Exceptions. Information will not be deemed Confidential Information if such information: (i) is known to the receiving party prior to receipt from the disclosing party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (ii) becomes known (independently of disclosure by the disclosing party) to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of these Terms of Service by the receiving party; or (iv) is independently developed by the receiving party.

5.3 Investigations and Other Disclosures. Company may disclose any information it has about Customer (including Customer’s identity) if Company determine that such disclosure is necessary in connection with any investigation or complaint regarding Customer’s use of the Service, or to identify, contact or bring legal action against someone who may be causing injury to or interference with (either intentionally or unintentionally) Company’s rights or property, or the rights or property of visitors to or users of the Service, including Company’s other customers. Company reserves the right at all times to disclose any information that Company deems necessary to comply with any applicable law, regulation, legal process or governmental request. Company also may disclose Customer’s information when Company determines that applicable law requires or permits such disclosure, including exchanging information with other companies and organizations for fraud protection purposes. Customer acknowledges and agrees that Company may preserve any transmittal or communication by Customer with Company through the Service or any service offered on or through the Service, and may also disclose such data if required to do so by law or Company determines that such preservation or disclosure is reasonably necessary to (1) comply with legal process, (2) enforce these Terms of Service, (3) respond to claims that any such data violates the rights of others or (4) protect the rights, property or personal safety of Company, its employees, users of or visitors to the Service, and the public.

6. Intellectual Property and Ownership

6.1 “Intellectual Property” means all intellectual property rights of every kind and description, including all U.S. and non-U.S. (a) rights in or to trademarks and service marks (whether or not registered), trade names and other designations of source of origin, together with all goodwill related to the foregoing, (b) patents and patent applications, (c) rights in or to copyrights, whether or not registered, (d) rights in or to trade secrets and confidential information, including know-how, technology methods, ideas and inventions, (e) rights in software and computer code (whether in source code, object code or any other form) and (f) all applications and registrations of any of the foregoing.

6.2 Ownership Rights to Service. Company, its affiliates or its licensors own all right, title and interest, including all Intellectual Property, in and to the Service and all software integrated into the Service. Use of the Service or any other Company services or software shall in no way assign or transfer to Customer any right, license, or claim of ownership of any kind to any Company Intellectual Property. Customer irrevocably waives any and all claims to any and all Company Intellectual Property.

6.3 Third Party Content. Customer may have access to content, software code and technologies owned by third parties (“Third Party Content”) through use of the Service. Customer’s use of such Third Party Content is subject to license agreements and terms established by such third party licensors, including open source licenses.

6.4 Customer Data. Customer Data means all data imported or entered by Customer by any means in connection with the Service. All Customer Data is irrevocably deemed the exclusive property of Customer. Company irrevocably waives any and all claims to any and all Customer Data. Customer agrees that all Customer Data may be removed or deleted by Company upon the termination of these Terms of Service for any reason, including by Company for the non-payment of fees by Customer. Company cannot be held liable for any loss, corruption or damage to Customer Data and by submitting Customer Data to the Service, Customer represents and warrants to Company that such Customer Data:

-does not infringe any intellectual property rights;

-belongs to Customer exclusively, or as the case may be, Customer has obtained the holder’s written permission to submit the Customer Data; and

does not contain any defamatory comment or any obscenity and does not violate a third party’s privacy or publicity rights.

6.5 No Work Product. No work product or work made for hire of any kind is provided or performed by Customer for Company under these Terms of Service or any other agreement. At no time during or after the term of these Terms of Service shall any tangible or intangible property or asset used in connection with the Service exist that could be considered Customer property other than the aforementioned Customer Data.

6.6 Limited License. Customer may take screenshots or pictures of the Service and share such images with project members or other third parties solely for publicizing Customer’s use of the Service. Such images and any intellectual property rights therein to the extent owned by Company may not be used for any other purpose or otherwise be incorporated in any service, application, software or interface.

7. Representations and Warranties

7.1 Warranties by Customer (a) Customer’s Business. Customer represents and warrants that Customer's services, products, materials, data, and information used by Customer in connection with these Terms of Service as well as Customer’s and its permitted customers’ and users’ use of the Service (“Customer’s Business”) does not and will not during the term of these Terms of Service operate in any manner that would violate any applicable law or regulation. (b) Breach of Warranties. In the event of any breach, or reasonably anticipated breach, of any of Customer’s warranties herein, in addition to any other remedies available at law or in equity, Company will have the right to immediately, in Company’s sole discretion, suspend the Service or any related services if deemed reasonably necessary by Company to prevent any harm to Company or its business.

7.2 Warranties and Disclaimers by Company. CUSTOMER EXPRESSLY AGREES THAT THE USE OF THE SERVICE AND THE INTERNET IS AT CUSTOMER’S SOLE RISK.  THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS FOR CUSTOMER’S USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTIBILITY, SATISFACTORY QUALITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE.  COMPANY PROVIDES THE SERVICE ON A COMMERCIALLY REASONABLE BASIS AND DOES NOT GUARANTEE THAT CUSTOMER WILL BE ABLE TO ACCESS OR USE THE SERVICE AT ALL TIMES OR LOCATIONS, OR THAT COMPANY WILL HAVE ADEQUATE CAPACITY FOR THE SERVICE AS A WHOLE OR IN ANY SPECIFIC GEOGRAPHIC AREA. CUSTOMER ACCESS AND USE OF THE SERVICE IS AT CUSTOMER’S OWN DISCRETION AND RISK AND CUSTOMER IS SOLELY RESPONSIBLE FOR ANY DAMAGE TO CUSTOMER’S COMPUTERS, DATA (INCLUDING CUSTOMER DATA), DEVICES, SOFTWARE CODE OR ANY OTHER DAMAGES THAT RESULTS FROM SUCH ACCESS OR USE.

Company makes no warranty regarding the Service and expressly disclaims any warranties or representations that:

-the Service will meet Customer’s needs and expectations;

-the Service will be accurate, complete, reliable or relevant;

-operation of the Service will be uninterrupted, timely, secure, or error-free;

-defects or errors in the Service will be corrected;

-the Service will be free of viruses or harmful elements; OR

-the Service will accurately or reliability indicate the status of Customer’s projects.

If Company experiences technical difficulties with the Service, Customer may be unable to access the Service and Customer’s account details. Company shall use reasonable commercial efforts to advise Customer when the problem will be resolved but makes no express warranties regarding when the Service will be restored. Customer may not rely on any timing guidance provided during technical difficulties—such guidance is to be treated as an informed estimate only.

8. Limitations of Liability

8.1 Exclusions. Company will not be liable to Customer in connection with THESE TERMS OF SERVICE or Customer’s use of the Service for any lost revenue, lost profits, replacement goods, loss of technology, rights or services, incidental, punitive, indirect or consequential damages, loss of data, or interruption of Customer’s business, even if Company is advised of the possibility of such damages, whether under theory of contract, tort (including negligence), strict liability or otherwise.

8.2 Maximum Liability. COMPANY'S MAXIMUM AGGREGATE LIABILITY TO CUSTOMER RELATED TO OR IN CONNECTION WITH THE SERVICE OR THESE TERMS OF SERVICE WILL BE LIMITED TO THE TOTAL AMOUNT PAID BY CUSTOMER TO COMPANY HEREUNDER FOR THE 12 MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY.

8.3 Basis of the Bargain; Failure of Essential Purpose. Customer acknowledges that Company has set its prices and entered into these Terms of Service in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth herein, and that the same form an essential basis of the bargain between the parties. The parties agree that the limitations and exclusions of liability and disclaimers specified in these Terms of Service will survive and apply even if found to have failed of their essential purpose.

9. Customer's Indemnification of Company. Customer shall indemnify, defend and hold Company and its affiliates and their representatives, agents and employees harmless from and against any and all costs, liabilities, losses, and expenses (including, but not limited to, reasonable attorneys' fees) (collectively, “Losses”) resulting from any claim, suit, action, or proceeding (each, an “Action”) brought against Company relating to a violation of these Terms of Service by Customer.

10. Term, Suspension and Termination

10.1 Term. These Terms of Service shall be valid and the Service shall be provided for the applicable Order term. The Service period will automatically be extended for an additional Service period of the same duration unless (i) Customer provides Company with written notice no later than thirty (30) days prior to the end of the applicable Service period of Customer’s intention not to renew the Service, or (ii) Company provides Customer with written notice no later than thirty (30) days prior to the end of the applicable Service period of its intention not to renew such Service.

10.2 Suspension. Company may suspend Customer’s access to, or use of, the Service if Company believe that (a) there is a significant threat to the functionality, security, integrity, or availability of the Service or any content, data, or applications in the Service; (b) Customer is accessing or using the Service to commit an illegal act; or (c) there is a violation of these Terms of Use by Customer.  When reasonably practicable and lawfully permitted, Company will provide Customer with advance notice of any such suspension. Company will use reasonable efforts to re-establish the Service promptly after Company determines that the issue causing the suspension has been resolved. Any suspension under this paragraph shall not excuse Customer’s obligation to make payments under this Agreement.

10.3 Termination. If either party materially breaches a term of these Terms of Service or any Order, and fails to correct the breach within 30 days of written specification of the breach, then the breaching party is in default and the non-breaching party may terminate the order under which the breach occurred.  If Company terminates the Terms of Service as specified in the preceding sentence, Customer must pay within 30 days all amounts that have accrued prior to such termination, as well as all sums remaining unpaid for the Service under the applicable Order plus related taxes and expenses. Customer agrees that if Customer is in default under these Terms of Service, Customer may not use the Service.  

Either party may terminate these Terms of Service if: (i) the other party becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; or (ii) the other party becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within 60 days of filing.

10.4 No Liability for Termination. Customer agrees that Company will not be liable to Customer or to any third party for termination of Customer’s access to the Service or termination of these Terms of Service for any reason. Company is not obligated to provide any refund in any amount in the event Customer cancels these Terms of Service or the Service prior to the term of the Order.

10.5 Effect of Termination. Upon the effective date of expiration or termination of these Terms of Service: (a) Company may immediately cease providing the Service hereunder; (b) any and all payment obligations of Customer under these Terms of Service will become due immediately; (c) within 30 days after such expiration or termination, each party shall return or destroy all Confidential Information of the other party in its possession at the time of expiration or termination and shall not make or retain any copies of such Confidential Information except as required to comply with any applicable legal or accounting record keeping requirements.

10.6 Survival. Provisions that survive termination or expiration of this Agreement are those relating to limitation of liability, warranties and disclaimers, intellectual property and ownership, indemnification, binding arbitration and class action waiver, payment and others which by their nature are intended to survive.

11. Binding Arbitration and Class Action Waiver

Customer and Company agree to arbitrate all disputes relating to these Terms of Service, Customer’s use of the Service or the Privacy Policy, except disputes relating to the enforcement of Company or its affiliates’ Intellectual Property rights. Customer and Company empower the arbitrator with the exclusive authority to resolve any dispute relating to the interpretation, applicability or enforceability of these Terms of Service and the Privacy Policy, including the arbitrability of any dispute and any claim that all or any part of these Terms of Service is void or voidable.  All disputes shall be settled by binding arbitration before a neutral arbitrator whose decision will be final except for a limited right of appeal under the U.S. Federal Arbitration Act.  CUSTOMER IS GIVING UP THE RIGHT TO LITIGATE A DISPUTE IN COURT BEFORE A JUDGE OR JURY.  Arbitration will be administered by the American Arbitration Association (the “AAA”) under its Commercial Arbitration Rules and its Supplementary Procedures for Consumer Related Disputes.  For more information, visit www.adr.org. To start an arbitration proceeding, use the form on AAA’s website (www.adr.org)

Arbitration will take place in Irvine, California, and Customer and Company agree to submit to the personal jurisdiction of the federal or state courts located there, in order to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator.

PROCEEDINGS TO RESOLVE OR LITIGATE A DISPUTE IN ANY FORUM WILL BE CONDUCTED ON AN INDIVIDUAL BASIS.  Neither Customer or Company will seek to have a dispute heard as a class action, private attorney general action, or in any other proceeding in which either party acts or proposes to act in a representative capacity.  No arbitration or proceeding can be combined with another without the prior written consent of all parties to the arbitration or proceeding. If the class action waiver is found to be illegal or unenforceable as to all or some parts of a dispute, those parts will be severed and proceed in a court of law, with the remaining parts proceeding in arbitration.

Customer agrees that any action at law or in equity arising out of or relating to these Terms of Service, the Service or the Privacy Policy that is not subject to arbitration shall be filed, and that venue properly lies, only in the state or federal courts located in Irvine, California and Customer consents and submits to the personal jurisdiction of such courts for the purposes of litigating such action.

Customer also agrees that any violation by Customer of these Terms of Service may constitute an unlawful and unfair business practice, and may cause irreparable harm to Company, for which monetary damages would be inadequate, and Customer consents to Company obtaining any injunctive or equitable relief that Company deems necessary or appropriate in such circumstances. These remedies are in addition to any other remedies Company may have at law or in equity.

12. Miscellaneous Provisions

12.1 Force Majeure. Except for the obligation to pay money, neither party will be liable for any failure or delay in its performance under these Terms of Service due to any cause beyond its reasonable control, including act of war, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure of the Internet, provided that the delayed party: (a) gives the other party prompt notice of such cause, and (b) uses its reasonable commercial efforts to correct promptly such failure or delay in performance.

12.2 Marketing. Customer acknowledges that Company may refer to Customer by trade name and trademark and may briefly describe Customer’s business in Company’s marketing materials and web site. Customer hereby grants Company a license to use any Customer trade names and trademarks solely in connection with the rights granted to Company pursuant to this Section.

12.3 Government Regulations. Customer shall not export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone outside the U.S. in connection with these Terms of Service without first complying with all export control laws and regulations which may be imposed by the U.S. Government and any country or organization of nations within whose jurisdiction Customer operates or does business.

12.4 Governing Law; Dispute Resolution, Severability; Waiver. These Terms of Service is made under and will be governed by and construed in accordance with the laws of the State of California.

12.5 Assignment. Customer may not assign its rights or delegate its duties under these Terms of Service either in whole or in part without the prior written consent of Company, except that Customer may assign these Terms of Service in whole as part of a corporate reorganization, consolidation, merger, or sale of substantially all of its assets. Any attempted assignment or delegation without such consent will be void. Company may assign these Terms of Service and the Services, in whole or part, to third parties, including the development, hosting, customer service and marketing functions relating to the Service. These Terms of Service will bind and inure to the benefit of each party's successors and permitted assigns.

12.6 Notices. Any notice required under these Terms of Service shall be provided to the other party in writing.  If Customer has a legal dispute with Company or if Customer wishes to contact the Company, Customer may send written notice to: Fixstars Corporation, Inc., 9205 Research Drive, 1st Floor, Irvine, CA 92618, or through the contact form at this link- https://sleeek.io/contact. Company may give notices to Customers by means of a general notice on Company’s portal for the Service, and notices specific to Customer by electronic mail to Customer’s email address on record in Company’s account information or by written communication sent by first class mail or pre-paid post to Customer’s address on record in Company’s account information.  Such notice will be deemed to have been given as of the date it is delivered, mailed or sent, whichever is earlier.

12.7 Entire Agreement; Counterparts. These Terms of Service, including all documents incorporated herein by reference, constitutes the complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes and replaces any and all prior or contemporaneous discussions, negotiations, understandings and agreements, written and oral, regarding such subject matter. These Terms of Service may be executed in two or more counterparts, each of which will be deemed an original, but all of which together shall constitute one and the same instrument. In the event these Terms of Service conflict in whole or in part with any and all license agreements between Customer and Company including shrink-wrap or click-wrap agreements, these Terms of Service shall prevail.

Version: April 16,2019