These Terms of Service (the “Terms”) describe your legal rights and responsibilities when using the online shared inbox and productivity tools and services provided by ListenUp! (the “Services”).
These Terms create a legal and binding agreement between ListenUp! (“ListenUp!” or “we”) and the Customer (as further described below) agreeing to be bound by these Terms.
A Customer may be referred to herein as the “Customer” or as “you.” Those persons who access the Services using Customer’s account are referred to herein as the “End Users.”
When you sign up for a ListenUp! account, purchase subscriptions, or accept an invitation to use the Service in conjunction with an individual or team who already has a ListenUp! account, you are agreeing to these Terms on behalf of the organization you represent.
If you are an individual not formally associated with an organization (for example an entrepreneur working with a couple of associates prior to the formation of your company), then you are entering into this Agreement on your own behalf, you are the “Customer” and you will be assigned as the administrator of your account.
If you register for the Service using your corporate email domain, then your organization is the “Customer” and can modify or re-assign roles within your account and otherwise exercise the rights granted to the Customer pursuant to these Terms.
If your organization, in its role as the Customer, elects to replace you as the administrator of its account, we will provide you with notification of such action and you agree to take any actions reasonably necessary and requested by ListenUp! or Customer to facilitate such transfer of authority.
IMPORTANT NOTICE: THESE TERMS OF SERVICE CONTAIN A BINDING ARBITRATION CLAUSE (SEE SECTION 16b) THAT GOVERNS HOW CLAIMS YOU HAVE AGAINST LISTENUP! WILL BE RESOLVED. PLEASE READ THIS PROVISION CAREFULLY.
1.1. Access. To access the Services, You must register for a ListenUp! account by providing your full legal name, a valid email address, and any other information required to complete the registration process.
As a general rule, your login details may be used up to a maximum of five concurrent sessions; provided, however, that ListenUp! may lower this limit at its discretion to address known or suspected issues of inappropriate license sharing. Access to the Services may sometimes be procured via an order form entered into between you and ListenUp! (an “Order Form”).
You are responsible for ensuring that each of your End Users abides by these Terms at all times in connection with their use of the Services.
It is your responsibility to: (a) inform your End Users of any relevant policies, practices and settings that you elect to enforce related to your End Users’ use of the Services; (b) obtain any rights, permissions or consents from your End Users that are necessary for your lawful use of the Service and the collection and processing of Customer Content (as defined in Section 2 below) by ListenUp! in connection with your use of the Services; and (c) respond to and resolve any dispute between you and any of your End Users related to or based on Customer Content and/or your use of that Customer Content in connection with your use of the Services.
You, and not ListenUp!, are responsible for your End Users’ compliance with your internal policies and procedures.
The Services are not intended for use by those under the age of 16 and You are responsible for ensuring that all End Users are at least 16 years of age.
You and your End Users are responsible for all login credentials, including user names and passwords and ListenUp! shall not be liable for any damages or losses that may occur as a result of your failure, or the failure of your End Users, to maintain the confidentiality of their login credentials.
You are responsible for notifying us at email@example.com if you become aware of any unauthorized use of or access to your account.
ListenUp! may communicate with you via email or pushed notifications regarding your account, system updates, or other issues related to your account and may assume that any communications we receive under your account have been submitted by you.
1.2 Acceptable Use. All End Users must comply with the following rules regarding acceptable use of the Services. End Users may not:
End Users may not utilize the Services to carry out, promote or support:
In addition to any other remedies that may be available to us, ListenUp! reserves the right to take that remedial action we deem necessary, including the immediate suspension or termination of an End User or Customer’s account, upon notice and without liability to ListenUp! should Customer or any of its End Users fail to abide by these acceptable use provisions or, if in ListenUp!’s sole discretion, such action is deemed necessary to prevent disruption to the Services or harm to others. If you are an End User, ListenUp! reserves the right to notify your organization and/or the administrator associated with your account with respect to any violation of these Terms.
End Users may create, process, upload, submit, store, send and receive content in connection with their use of the Services (the “Customer Content”).
As between Customer and ListenUp!, Customer retains all ownership and intellectual property rights in and to that Customer Content and ListenUp! shall not be responsible for the Customer Content or the way Customer or its End Users choose to use the Services to store or process any Customer Content.
Subject to these Terms, you (on behalf of yourself and your End Users) hereby grant to ListenUp! a worldwide, limited, non-exclusive and non-transferrable (except in connection with the sale or transfer of its business) license to access, use, copy, reproduce, process, adapt, distribute, publish, transmit, export and display the Customer Content as reasonably necessary (a) to provide, maintain and update the Services; (b) to prevent or address service, security, support and technical issues; (c) as required by law; and (d) as expressly permitted by Customer in writing.
ListenUp! makes various third-party applications and services available for use in connection with the Services (the “Third Party Services”). Your use of such Third Party Services, and any exchange of data between You and the provider of such Third Party Service is solely between you and the third-party service provider.
ListenUp! does not warrant or support any Third Party Service or other non-ListenUp! product or service, regardless of whether such Third Party Service, is promoted or made available through our Service or is designated by ListenUp! as “certified” or “working with” the ListenUp! Service.
Customer acknowledges that providers of such Third Party Services may have access to Customer Content in connection with the interoperation and support of such Third Party Services with the Service and that, as between Customer and ListenUp!, Customer is solely responsible for reviewing such Third Party Service provider’s practices and policies to ensure that they meet the legal and business requirements of Customer.
To the extent Customer authorizes the access or transmission of Customer Content through a Third Party Service, ListenUp! shall not be responsible for any use, disclosure, modification, or deletion of such Customer Content by the Third Party Service provider or for any act or omission on the part of such Third Party Service provider.
4.1 Fees. The Service is provided on a tiered subscription basis with fees calculated based on your total number of Imported Captures as detailed on the pricing page on our website.
Unless a substitute payment mechanism has been agreed to by ListenUp!, a valid credit card is required to subscribe to the Service and Customer authorizes ListenUp! to charge such fees using Customers selected payment method.
Fees are billed in advance and are non-refundable. The number of Imported Captures subscriptions purchased under a subscription cannot be decreased during the applicable term.
No credits or refunds will be issued for usage that is less than the purchased number of licenses.
No adjustments are made for unused time on licenses.
The subscription term for your Imported Captures begins on the date on which you sign up and pay for the Service (the “Subscription Start Date”), regardless of the date on which you provision your individual End User accounts.
4.2 Auto Renewal. Customer agrees that its subscription to the Services will automatically renew on an annual or monthly basis (the “Renewal Date”) depending on the term chosen by Customer when subscribing to the Service.
Customer hereby authorizes ListenUp! to automatically charge Customer the applicable fees on or after each such Renewal Date unless Customer’s subscription to the Service has been terminated or cancelled as set forth in Section 5 below.
4.3 Calculation of Fees. Fees are based on annual or monthly periods that begin on Customer’s Subscription Start Date and end on the annual or monthly anniversary thereof (depending on whether Customer chooses an annual or monthly subscription).
Customers are required to purchase a subscription for each End User and may add additional End Users to their account at any time by adding licenses through the application or notifying ListenUp! at firstname.lastname@example.org. ListenUp! reserves the right to review the total number of Imported Captures associated with Customer’s account from time to time and, if the number of Imported Captures exceeds Customer's current subscription, then ListenUp! reserves the right, upon notice to Customer, to invoice Customer for any additional Imported Captures on a pro rata basis for the remaining period of Customer’s subscription term.
ListenUp! reserves the right to revise fees associated with the Service at any time upon not less than twenty (20) days prior notice to Customer, with such revised fees to be applied to Customer upon Customer’s next monthly or annual subscription term (as the case may be) and with respect to any additional Imported Captures added to Customer’s subscription during the then current monthly or annual subscription term. XXX
4.4 Taxes. All fees are exclusive of all taxes, levies, or duties or similar assessments of any nature, including for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively “Taxes”). Customer shall be responsible for payment of all such Taxes associated with its purchase of access to the Service, excluding only those taxes that are based on ListenUp!’s net income. Should you be required to withhold any Taxes upon payment to ListenUp!, you will reimburse ListenUp! for such withholding.
4.5 Trial Subscriptions. ListenUp! may, at its option, offer new customers a limited free trial of the Service, subject to these Terms. Notwithstanding anything to the contrary herein, ListenUp! shall have the right to terminate a Customer free trial at any time and for any reason. No organization or individual is entitled to receive more than one (1) free trial of the Service.
4.6 Late Payment. If you fail to make payments (not disputed in good faith) when due under these Terms, and after continued non-payment for a period of fifteen (15) days after we provide you with written notice and an opportunity to cure, we may suspend provision of the Service until payment is received and may charge you a late fee on the overdue amount from the date such amount became due at the lesser rate of 1.5% per month or the maximum rate permitted by applicable law, together with our costs incurred in collecting such payment. We are entitled to withhold performance and suspend provision of the Service until all undisputed amounts due are paid in full.
These Terms shall remain in full force and effect until all Customer subscriptions to the Service have expired, have been terminated or are cancelled. Either party may terminate Customer’s subscription to the Service if the other party: (a) is in material breach of these Terms and fails to cure such breach within twenty (20) days following written notice by the non-breaching party; or (b) ceases its business operations or becomes subject to insolvency proceedings and such proceedings are not dismissed within sixty (60) days. Customer may cancel its subscription to the Service by notifying ListenUp! at email@example.com no later than thirty (30) days prior to the Renewal Date.
Upon expiration, termination or cancellation of Customer’s subscription, ListenUp! may immediately deactivate Customer’s account; provided, however, that in no event shall any such deactivation relieve Customer of any obligation to pay fees accrued or payable to ListenUp! or of any liability pertaining to Customer’s use of the Service prior to such expiration, termination or cancellation. The following sections shall survive any expiration or termination of these Terms: Sections 7, 8, 10, 13 and 16.
If Customer Content includes personal data defined by EU Regulation 2016/679 (the General Data Protection Regulation or “GDPR”), if such Customer Content is transferred outside the European Economic Area or Switzerland to any country not deemed by the European Commission as providing an adequate level of protection for personal data, and/or if Customer Content includes personal information as defined by the California Consumer Privacy Act of 2018 (the “CCPA”), then the terms of the ListenUp! Data Processing Addendum shall apply to such personal data and be incorporated into these Terms upon the execution and submission of the ListenUp! Data Processing Addendum by Customer in accordance with its terms.
Confidential information does not include information that: (a) is or becomes publicly available without breach of these Terms by the receiving party; (b) was known to the receiving party prior to its disclosure by the disclosing party; (c) is or was independently developed by the receiving party without the use of any Confidential Information of the disclosing party; or (d) is or was lawfully received by the receiving party from a third party under no obligation of confidentiality.
The receiving party may disclose the disclosing party’s Confidential Information to its employees, affiliates, consultants, subcontractors, agents, or advisors (“Representatives”) who have a strict need to access the Confidential Information for the purpose of performing under these Terms and only to those who are obligated to maintain the confidentiality of such Confidential Information under terms that are at least as protective as the terms set forth in these Terms. Either party may disclose these Terms to potential parties to a bona fide fundraising, acquisition, or similar transaction solely for the purposes of the proposed transaction, provided that any such potential party is subject to written non-disclosure obligations and limitations on use that are no less protective than those set forth herein.
Receiving party will furnish only that portion of the Confidential Information that is legally required to be disclosed, and any Confidential Information so disclosed shall maintain its confidentiality protection for all purposes other than such legally compelled disclosure. If ListenUp! is compelled by law to access or disclose Customer’s Confidential Information as part of a civil proceeding to which Customer is a party, Customer will reimburse ListenUp! for the reasonable costs of compiling and providing secure access to such Confidential Information.
As between ListenUp! and Customer, ListenUp! owns all intellectual property rights in and to the Service (excluding only the Customer Content) and all trademarks, logos and service marks utilized by ListenUp! in connection with the delivery of the Service.
ListenUp! grants You a non-sublicensable, non-transferrable, non-exclusive, limited license to use the object code version of the Service solely as necessary to use the Service in accordance with these Terms. All rights not expressly granted by this license are hereby retained by ListenUp! and you may not copy, modify, adapt, reproduce, distribute, reverse engineer, decompile, or disassemble any aspect of the Service.
We appreciate and welcome feedback from our customers. By submitting any feedback or suggestions regarding the Service, or sharing such feedback with any representative of ListenUp!, You grant to ListenUp! an unlimited, irrevocable, perpetual, sub-licensable, transferable, royalty-free license to use such feedback or suggestion(s) for any purpose and without any obligation or compensation to You, any End User, or any other Customer personnel.
EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, THE SERVICE AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND LISTENUP! EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON- INFRINGEMENT. CUSTOMER ACKNOWLEDGES THAT WE DO NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, SECURE, OR ERROR-FREE.
OTHER THAN IN CONNECTION WITH A PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER: (A) IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, HOWEVER, CAUSED, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) NEITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS OR CUSTOMER’S USE OF THE SERVICE WILL EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER DURING THE TWELVE (12) MONTHS PRECEDING THE LAST EVENT GIVING RISE TO LIABILITY.
The provisions of this Section 10 allocate the risk between the parties under these Terms, and the parties have relied on these limitations in determining whether to enter into these Terms.
The Service, operated by ListenUp!, may be subject to the export laws and regulations of the United States, the European Union, and other jurisdictions due to its international hosting and service provision. The Customer represents that neither it nor any of its End Users are named on any U.S. government denied-party list or similar lists enforced by the European Union or other jurisdictions. The Customer agrees not to permit any End User to access or use the Service in any country or region subject to embargo by the United States, the European Union, or any other applicable jurisdiction, nor in violation of any applicable export law or regulation.
Given the global distribution of our services, including servers located in the United States (AWS eu-west-3) and France, as well as other locations worldwide (Vercel), the Customer and its End Users are required to comply with all local and international laws pertaining to export controls and sanctions. This includes, but is not limited to, not using the Service to export, re-export, transfer, or make available, directly or indirectly, any regulated item or information to anyone outside the respective country of residence without first complying with all export control laws and regulations that may be imposed by the U.S. Government, the European Union, and any country or organization of nations within whose jurisdiction the Customer operates or does business.
The Service is controlled and operated by ListenUp!, with hosting services located in the United States, France, and various other global locations. Employees of ListenUp! may work remotely from the European Union and other regions.
Except as explicitly set forth herein (and in the Data Processing Agreement, if such an agreement is entered into by the parties), ListenUp! makes no representations that the Services are appropriate or available for use in jurisdictions outside of the United States or the European Union.
Those who access or use the Service from other jurisdictions do so at their own volition and are responsible for compliance with local laws. ListenUp! may offer services in other jurisdictions that are subject to different terms and conditions. In instances where the Customer's use of the Service occurs from within such a jurisdiction, the ListenUp! terms and conditions governing that non-U.S. and non-E.U. jurisdiction shall take precedence over any conflicting provisions in these Terms with respect to the Customer's use of the Service from within such foreign jurisdiction.
[Note: Legal advice from a qualified professional specializing in international trade and internet law is strongly recommended to ensure compliance and adequacy of these terms.]
This section states Customer’s sole liability with respect to, and the ListenUp! Parties’ exclusive remedy against Customer for, any such claim.
Notwithstanding the foregoing, ListenUp! shall not be required to indemnify Customer hereunder to the extent the claim against Customer arises from (a) Customer or any Customer End User’s use of the Service in a manner that violates these Terms; or (b) use of the Service in a modified form or in combination with any third party product, service or content not furnished to Customer by ListenUp!.3. Potential Infringement. If the Service becomes, or in ListenUp!’s reasonable judgment is likely to become, the subject of a claim of infringement, then ListenUp! may in its sole discretion: (a) obtain the right, at ListenUp!’s expense, for Customer to continue using the Service; (b) provide a non-infringing functionally equivalent replacement; or (c) modify the Service so that it is no longer infringing. If ListenUp!, in its sole and reasonable judgment, determines that none of the above options are commercially reasonable, then ListenUp! may suspend or terminate Customer’s use of the Service, in which case ListenUp!’s sole liability (in addition to its indemnification obligations above) shall be to provide Customer with a pro-rated refund of prepaid but unused fees applicable to the remaining portion of Customer’s current subscription term. Subsections (b) above and this subsection (c) state ListenUp!’s sole liability with respect to, and Customer Parties’ exclusive remedy against ListenUp! for, any infringement claim.
Indemnification Process. The party seeking indemnification shall provide prompt notice to the indemnifying party concerning the existence of an indemnifiable claim and shall promptly provide the indemnifying party with all information and assistance reasonably requested and cooperate fully with the indemnifying party in defending the claim.
Failure to give prompt notice shall not constitute a waiver of a party’s right to indemnification and shall affect the indemnifying party’s obligations under these Terms only to the extent that the indemnifying party’s rights are materially prejudiced by such failure or delay. The indemnifying party shall have full control and authority over the defense of any claim; provided, however, that any settlement requiring the party seeking indemnification to admit liability or make any financial payment shall require such party’s prior written consent, not to be unreasonably withheld or delayed.
ListenUp! reserves the right to update or modify these Terms from time to time as our business evolves by posting an updated version of these Terms on our website.
This includes the right to modify the services included on Free Trial. If, in our sole discretion, we believe that the modifications being made are material, we will notify You (email to suffice) prior to the change taking effect. By continuing to utilize the Service after the effective date of any update to these Terms, Customer will be deemed to have accepted such update.
Select Customers may be invited to participate in the review and testing of pre-release versions of new tools and Service enhancements which may be identified as “beta,” “early access,” “evaluation,” “preview,” “test,” “pre-release,” or similar term (. Customer acknowledges and understands that its participation in such pre-release testing is not required and is at Customer’s own risk, are made available “as is” basis, and may be subject to additional terms related to their use.