Terms of Service

 

These Ajito Service Terms (“Agreement”) govern your (“you”, “your”, or “Client”) use of and access to the Ajito LLC. (“Ajito”) services outlined in a statement of work, order form, or purchased through an online order portal offered or provided by Ajito that state they are governed by the terms of this Agreement. Access to and use of the Services are subject to your acceptance of the terms of this Agreement. You agree to abide by the terms of this Agreement by your continued access to and use of the Ajito website, application, or platform (the “Site”).
 

We reserve the right to update, change, or replace any part of the terms of this Agreement by posting updates and/or changes to the Site. It is your responsibility to check this page periodically for changes. If you object to any such modifications, your sole recourse shall be to cease using the Site and the Services. Your continued use of or access to the Site following the posting of any changes constitutes acceptance of those changes.  Ajito and Client, each, a “Party,” and together, the “Parties”.
 

Unless permitted by law or as otherwise expressly permitted in this Agreement, you must not (nor may you encourage, authorize or assist any third party to):
 

1. rent, lease, distribute, license, sublicense, sell, transfer, assign, distribute or otherwise provide access to the Site to a third party;

2. reproduce, modify, adapt, or create derivative works of, the Services or remove or tamper with any disclaimers or other legal notices in the Site;

3. reverse engineer, disassemble, decompile, transfer, exchange or translate the Site or otherwise seek to obtain or derive the source code or API;

4. incorporate the Site into any service that you provide to a third party; or

5. use the Site to provide services, or to create a service that competes with the Site.

You must promptly notify Ajito in writing of any breach of the above conditions of use. You are solely responsible for ensuring that any desktop, mobile telephone or handheld device (Devices) and systems are compatible with the Site and meet any minimum requirements specified by us.
 

I. Accounts
 

1. You must register for an account on the Site in order to access or receive the Services and to receive notices and information from Ajito (Customer Account).

2. You may specify one or more administrators who may elect to have password-protected rights to access administrative account(s) (Admin Account(s)) to administer the Services and End User Accounts.

3. All End Users must establish a named account to access the Services (End User Account). Each End User Account must not be shared.

4. Ajito’s Services are not directed at, nor to be used by, persons under the age of eighteen. You are responsible for ensuring that all End Users meet the age requirement.

5. You must provide all relevant disclosures to, and obtain all relevant consents from, End Users to allow us to provide the Services to End Users, including Ajito’s use, collection and sharing of information in accordance with our Privacy Policy.

6. You are responsible for all actions taken through your Customer Account, all End User Accounts and Admin Accounts under your Customer Account (together, Your Accounts). Your responsibilities include:

   • maintaining the confidentiality of the passwords associated with each of Your Accounts;

   • ensuring that only those individuals authorized by you have access to Your Accounts; and

   • ensuring that all activities that occur in connection with Your Accounts comply with this Agreement.

7. If you are an End User, your account is managed by the Admin Account(s) (and not you). The Admin Account(s) can control your use of the Subscription Services, including adding or removing you from accessing the Subscription Services, enabling or disabling certain features or functionality within the Subscription Services, and deleting or re-assigning ownership of Your Data and Your Modifications. You acknowledge that your End User Account may become managed by the entity that owns or controls the email address domain (such as your employer) with which your account was established (such as your work email address). Ajito is not responsible for any actions taken by Account Admin(s).

 

II. Services

​

The Services include: (i) cloud-based, software-as-a-service solutions; (ii) related support services; and (iii) any other products or services Ajito provides to you as specified in an Order, but excludes:

​

1. any data, information, templates, content, code, video, images or other materials or information of any type that you upload to the Site, generate by using features of the Site or otherwise provide to Ajito in connection with the Services (Your Data); and

2. any connector/s built or modified by any party other than Ajito or its subcontractors.

 

Ajito reserves the right to make changes to the Services in its sole discretion from time to time, including the functionality, features, performance, user interface, and usability, and you agree that this Agreement will apply to any changes or updates to the Subscription Services. Ajito will notify you of any change to the Subscription Services that reduces its functionality or features in any material respect or if it discontinues any Service and is not replaced by a substantially equivalent function or feature. If Ajito has notified you under this section (3)(b), you may terminate the affected Services upon providing notice to Ajito within 30 days after the date of such notice, and Ajito will refund any prepaid, unused Fees in respect of any terminated Subscription Services. Nothing in this section (3)(b) limits Ajito’s ability to discontinue any Service or to make changes as required to comply with applicable law, address a material security risk, or avoid a substantial economic or technical burden.

​

Compliance with Laws; Restrictions

​

1. Restrictions on Use of Services. Client shall not use the Services, whether accomplished through electronic mail or otherwise, to: (i) send Spam (as defined below) or otherwise duplicative or unsolicited messages or posts in violation of applicable laws, including but not limited to sending messages to purchased or rented lists or other recipients who have not specifically opted in to receive such messages; (ii) send or store infringing, obscene, threatening, libelous, harassing or otherwise unlawful or tortious material, including material harmful to children or which violates a third party’s privacy rights; or (iii) send or store material containing software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents, or programs.
   
   “Spam” means: (1) an electronic message as to which: (a) the recipient’s personal identity and context are irrelevant because the message is equally applicable to many other potential recipients; and (b) the recipient has not verifiably granted deliberate, explicit, and still-revocable permission for it to be sent; or (2) any message the sending of which would violate U.S. or non-U.S. laws or regulations governing sending of emails to multiple recipients, including but not limited to the U.S. CAN-SPAM Act, the Canadian Anti-SPAM Legislation know as Telecom Regulatory Policy CRTC 2012-183, Council Directive 2002/58/EC, of the European Parliament and of the Council of 12 July 2002 Concerning the Processing of Personal Data and the Protection of Privacy in the Electronic Communications Sector (Directive on Privacy and Electronic Communications) (as amended by Council Directive 2009/136/EC), and Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation)(“GDPR”).

​​

III. Fees and Payment Terms

 

Initial Term 

 

The term of this Agreement shall commence on the Effective Date and expire at the end of the term set forth in the Subscription Proposal entered into contemporaneously with this Agreement (the “Initial Term”). On expiration of the Initial Term, this Agreement shall automatically renew for additional period(s) for the same duration as the Initial Term (each a “Renewal Term”), unless earlier terminated as set forth in Section 4.2 below or as set forth in any Subscription Proposal.

​

1. Client shall pay Ajito the fees stated in any applicable Subscription Proposal (the “Fees”). All Fees or other terms related to Fees are Confidential Information, and Client agrees not to disclose them to any third party, except its attorneys and/or accountants, as warranted. Client acknowledges and agrees that the Fees may be updated at any time by Ajito upon thirty (30) days prior written notice to Client.

 

Payment Terms

 

All Fees shall be due and payable as set forth in any applicable Subscription Proposal. Except in the event of a good faith dispute over Fees, which is evidenced in writing by notice from Client to Ajito within thirty (30) days of Ajito’s invoice therefor (a “Good Faith Claim”), any Fees received by Ajito after the due date shall be subject to a late fee equal to one and one-half percent (3%) per month, or, if less, the maximum amount allowed by applicable law. Client shall also be responsible for any and all collections fees, including reasonable attorney’s fees, costs of suit, expert fees, deposition fees and court costs, incurred by Ajito to collect any sums due hereunder. In the event of a Good Faith Claim, Client shall promptly make payment on all Fees under the applicable invoice not subject to the Good Faith Claim, and proceed diligently to resolve the dispute with Ajito, including elevation of the issue to executive-level authorized representatives of Client. Unless otherwise agreed in writing, Ajito’s acceptance of partial payments shall not waive any of Ajito’s rights to full payment or other remedies.

​

IV. Term and Termination

​

Initial Term 

 

The term of this Agreement shall commence on the Effective Date and expire at the end of the term set forth in the Subscription Proposal entered into contemporaneously with this Agreement (the “Initial Term”). On expiration of the Initial Term, this Agreement shall automatically renew for additional period(s) for the same duration as the Initial Term (each a “Renewal Term”), ”), unless a party provides notice of termination in writing (including by e-mail) at least sixty (60) days prior to the expiration of the current Term. Pricing for Renewal Terms may be increased by up to three percent (5%) over the pricing for the prior term, at Ajito’s discretion.

​

1. Notwithstanding the foregoing, Ajito may terminate this Agreement, effective only upon the expiration of the then-current Term, by notifying Customer in writing at least thirty (30) days prior to the end of the current Term, or as set forth in any Subscription Proposal.

​​

Termination

​

1. For Cause. Either Party (the “Non-Breaching Party”) may terminate this Agreement, or any placement that is affected by a material breach, in the event that the other Party (the “Breaching Party”) has materially breached this Agreement, and such breach has continued for fifteen (15) days (the “Cure Period”) after written notice is provided to the Breaching Party by the Non-Breaching Party. Any such notice provided must describe the alleged material breach in sufficient detail to put the Breaching Party on notice.

​​

V. Client Content; Security

​

Client Content

 

As between Client and Ajito, Client shall retain all rights, title, and ownership in the Client Content (as defined below). Client, not Ajito, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and ownership or right to use all Client Content, and Ajito shall not be responsible or liable to monitor, correct, delete or restore any Client Content that has been created, damaged, destroyed or lost by Client, or that Client has failed to properly save or store, in its use of the Services. “Client Content” means any data, information, or material provided or submitted by or on behalf of Client. Client Content input data typically includes, but is not limited to, first name, last name, street address, city, state, and postal code.

​

Security

 

Client understands that data minimization is an information security best practice. Therefore, Client agrees to only submit personally identifiable information (“PII”) to Ajito where necessary for performance of the Services. Ajito shall comply with all applicable statutes, regulations, ordinances and official governmental directives for protecting the privacy of PII in Client Content. “PII” means any information that alone, or in combination with other information that the organization has, or is likely to have access to, can or does identify a living person, or can be directly linked to a living person. Examples of PII include, but are not limited to: name; name of parents or other family members, including maiden name of the person’s mother; address of the person or their family; telephone number; and indirect identifiers, including date of birth, place of birth, email, social media address or other electronic address. In the case of any legal or regulatory obligation of Ajito to disclose Client Content, to the extent permitted by law, Ajito shall (i) promptly notify Client; (ii) limit any disclosure to the minimum required by law; and (iii) to the extent possible, request that such information be kept confidential.

​

Sensitive PII

 

Client hereby represents, warrants, and covenants that the Client Content shall not contain any Sensitive PII. “Sensitive PII” means categories of PII that are subject to specific requirements under U.S. or non-U.S. law and that applicable laws either define as sensitive or consider sensitive because unauthorized disclosure could cause serious harm to the person who is the subject of the PII. Examples of Sensitive PII include, but are not limited to: Social Security, Driver’s License, Taxpayer Identification, Passport, or other government identification numbers; any information regarding an individual’s medical history, mental or physical condition, or medical treatment or diagnosis by a health care professional (including genetic data); financial account information, including checking/savings account, credit or debit card numbers, or other information that would permit access to a person’s financial account or resources; health insurance policy or subscriber identification number; and race or ethnic origin.

​

Security of Client Content  

 

Ajito agrees to implement the technical and organizational measures set forth in Ajito’s Privacy Policy to ensure the security of Client Content while it is held, stored or used by Ajito.

Ajito further agrees that it will monitor and test its data safeguards from time to time, and further agrees to adjust its data safeguards from time to time in light of relevant circumstances or the results of any relevant testing or monitoring. If Ajito suspects or becomes aware of any unauthorized access to any Client Content by any unauthorized person or third party, or becomes aware of any other security breach relating to Client Content data held or stored by Ajito under this Agreement or in connection with the performance of the services performed under this Agreement, Ajito shall immediately notify Client in writing and shall fully cooperate with Client at Ajito’s expense to prevent, mitigate, rectify or stop such data breach (“Data Breach”). In the event of such Data Breach, Ajito shall fully and immediately comply with applicable laws and shall take the appropriate steps to remedy such Data Breach.

All Client Content to which Ajito has access under this Agreement, as between Ajito and Client, will remain the property of Client. Client hereby consents to the use, processing and/or disclosure of Client Content only for the purposes described herein and to the extent such use or processing is necessary for Ajito to carry out its duties and responsibilities under this Agreement, or as required by law. All Client Content delivered to Ajito shall be stored in the United States and shall not be transferred to any other countries or jurisdictions without the prior written consent of Client.
 

Limitation of Liability; Indemnification

​

1. Ajito’s Indemnification Obligations. In the event of (a) any material breach by Ajito of this Agreement, or (b) the gross negligence or willful misconduct on the part of Ajito or its employees, agents, or representatives, Ajito agrees to indemnify Client and hold Client harmless from any and all damages, claims, and/or losses resulting from or related to any such breach, or gross negligence or willful misconduct, including, without limitation, reasonable attorneys’ fees and expenses, incurred by Client.

2. Client’s Indemnification Obligations. In the event of any breach by Client of this Agreement, or in the event of negligence or willful misconduct on the part of the Client or its employees, agents or representatives, Client agrees to indemnify Ajito and its officers, directors, employees, and agents (hereafter the “Representatives”) and hold Ajito and its Representatives harmless from any and all damages, claims, costs, or losses resulting, directly or indirectly, from or related to any such breach, or negligence or willful misconduct, including, without limitation, reasonable attorneys’ fees and expenses, incurred by Ajito.

3. Limitation of Liability. Except as specifically set forth herein, in no event shall either party be liable to anyone for any indirect, punitive, special, exemplary, incidental, consequential, or other damages of any type or kind (including cost of cover, business interruption, loss of data, revenue, profits, use, or other economic advantage) arising out of, or in any way connected with the Services provided hereunder, including but not limited to the use or inability to use the Services, or for any content obtained from or through the Services, any interruption, inaccuracy, error, or omission, regardless of cause in the content, in connection with or arising out of the furnishing, performance or use of Services or deliverables, whether alleged as a breach of contract or tortious conduct, including negligence, even if the party from which damages are being sought or such party’s licensors have been previously advised of the possibility of such damages. Notwithstanding anything to the contrary in this Agreement, Ajito’s total liability in any event is limited to the amount, if any, actually paid for use of the Services in the three (3) months preceding the claim, and Client hereby releases Ajito and its Representatives (as defined below) from any and all obligations, liabilities, and claims in excess of this limitation.

​​

VI. Warranties; Disclaimers

​

Warranties 

 

The Services provided by Ajito pursuant to the terms of this Agreement shall be performed in a professional and workmanlike manner in accordance with recognized industry standards. In the event that Services provided hereunder fail to conform to the foregoing warranty, company’s sole obligation, and Client’s sole remedy, in addition to Client’s right to terminate in accordance with IV, shall be for Ajito to use commercially reasonable efforts to correct such nonconformity.

​

DISCLAIMERS

 

AJITO EXERCISES NO CONTROL WHATSOEVER OVER THE CLIENT CONTENT OR ANY OTHER INFORMATION PASSED THROUGH THE SERVICES BY CLIENT, OR OVER PROVIDERS OF THIRD-PARTY SERVICES WHO CAN VIEW, MODIFY, OR ACCESS THE SERVICES WITH OR WITHOUT CLIENT’S AUTHORIZATION. AJITO DOES NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS OBTAINED BY CLIENT OR USERS IN USING THE SERVICES, OR THAT THE USE OF THE SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED, OR ERROR-FREE, OR THAT THE SERVICES WILL OPERATE IN COMBINATION WITH HARDWARE, SOFTWARE, SYSTEMS, OR DATA, OR THAT THE SERVICES WILL MEET CLIENT’S OR ANY USER’S REQUIREMENTS.

​​

VII. Confidentiality.

 

During the Term of this Agreement, either Party (as the "Disclosing Party") may disclose or make available to the other Party (as the "Receiving Party") information about its business affairs and services, confidential information and materials comprising or relating to Intellectual Property, trade secrets, third-party confidential information, and other sensitive or proprietary information, as well as the terms of this Agreement, whether or not marked, designated or otherwise identified as "confidential" (collectively, "Confidential Information") Any and all such information obtained by either shall be deemed to be confidential and proprietary information. Both Parties hereby agree to hold such information in strict confidence and not to disclose such information to third parties or to use such information for any purposes whatsoever other than the providing of Services under this Agreement without the express written consent of the other Party.

​

VIII. Governing Law and Venue. 

 

This Agreement shall be governed by and construed under the laws of North Carolina, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any other jurisdiction. Venue for all purposes shall be in the appropriate courts located in Wake County, North Carolina and each party hereby consents to the jurisdiction of such courts.

​

IX. Disputes.

 

The parties shall attempt to resolve any and all disputes or claims arising out of this Agreement through mutually cooperative negotiation in good faith. If negotiation is unsuccessful, the matter may then be submitted to mediation.  If mediation is unsuccessful, the matter shall be fully and finally settled by arbitration with a recognized Alternative Dispute Resolution (“ADR”) group in Wake County, North Carolina by an arbitrator chosen in accordance with the ADR rules, and the judgment upon award may be entered in any court having jurisdiction thereof.  The attorneys’ fees and costs of dispute resolution shall be borne by the losing party unless the parties stipulate otherwise or in such proportions as the mediator or arbitrator shall decide.

​

X. Miscellaneous

​

1. Successors and Assigns. The benefits of this Agreement shall inure to the respective successors and assigns of the Parties and their Representatives, and the obligations and liabilities assumed in this Agreement by the Parties shall be binding upon their respective successors and assigns.

2. Independent Contractors. The Parties each acknowledge and agree that they are entering into this Agreement as independent contractors and nothing in this Agreement shall be construed as creating a partnership, joint venture, agency, fiduciary, or employment relationship between Ajito and Client.

3. Force Majeure. Ajito will not be responsible for failure or delay in fulfilling its obligations to Client hereunder if such failure or delay is due to labor disputes and strikes, fire, riots, war, acts of God or any other causes beyond control of Ajito.

4. Notices. Any notice intended for either party shall be deemed to be validly given if it is in writing and is sent by mail or courier service or hand-delivered to such party's address as set forth in a Subscription Proposal, or to any other address which the party in question may have indicated in writing to the other party. A copy of any notice sent by e-mail shall also be sent whenever possible.

5. No Waiver. No delay or failure by either party in exercising, protecting or enforcing any of its rights, interests or remedies hereunder, and no course of dealing or performance with respect thereto, shall constitute a waiver thereof. The express waiver by a party of any right, interest or remedy in a particular instance shall not constitute a waiver thereof in any other instance.  All rights and remedies shall be cumulative and not exclusive of any other rights or remedies. Ajito shall not be required to give notice to enforce strict adherence to all terms of this Agreement.

6. Severability. If any provision of this Agreement is declared to be invalid or unenforceable, the validity and enforceability of the remaining provisions will not be affected. The invalid or unenforceable provision will be deemed modified to the extent necessary to render it valid and enforceable, and if no modification may render so, this Agreement will be construed as if not containing such provision.

7. Entire Agreement; Amendment. This Agreement contains the entire agreement and understanding among the parties hereto with respect to the subject matter hereof and supersedes all prior agreements with respect to the subject matter hereof. No waiver by either party of any default shall be deemed as a waiver of prior or subsequent default of the same or other provisions of this Agreement.

8. Titles and Headings. Titles and headings used in this Agreement are for convenience only and shall not be used to limit, expand or interpret the language used thereunder.

9. Authority. The Parties affirm that the individuals executing this Agreement have the authority to bind the Parties to the terms hereof.