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Terms of Use

One Tusk User Terms of Use

Effective Date: February, 2020

These User Terms of Service (the “User Terms”) govern your access and use of our online workplace productivity tools and platform (the “One Tusk Services”). Please read them carefully. Even though you are signing onto an existing workspace, these User Terms apply to you as a user of the One Tusk Services.

Section 1

These User Terms are Legally Binding

These User Terms are a legally binding contract between you and us. As part of these User Terms, you agree to comply with the Acceptable Use Policy, below. If you access or use the One Tusk Services, or continue accessing or using the One Tusk Services after being notified of a change to the User Terms, you confirm that you have read, understand and agree to be bound by these User Terms. “We”, “our” and “us” currently refers to the applicable One Tusk entity in the Contract (defined below).

Section 2

Customer’s Choices and Instructions

An organization or other third party that we refer to in these User Terms as “Customer” has invited you to a workspace (i.e., a unique domain where a group of Users may access the One Tusk Services). If you are joining one of your employer’s workspaces, for example, Customer is your employer. If you are joining a workspace created by your friend using her personal email address to work on her new startup idea, she is our Customer and she is authorizing you to join her workspace.

Section 3

What This Means for You—and for Us

Customer has separately agreed to our Customer Terms of Service or entered into a written agreement with us (in either case, the “Contract”) that permitted Customer to create and configure a workspace so that you and others could join (each invitee granted access to the Services, including you, is an “User”). Defined terms in these Terms of Use that are not otherwise defined in these Terms of Use have the meaning as described in the Contract. The Contract contains our commitment to deliver the One Tusk Services to Customer, who may then invite Users to join its workspace(s). When a User (including, you) submits content or information to the Services, such as messages or files (“User Content”), you acknowledge and agree that the User Content is owned by Customer and the Contract provides Customer with many choices and control over that User Content. For example, Customer may provision or deprovision access to the One Tusk Services, enable or disable third party integrations, manage permissions, retention and export settings, transfer or assign workspaces, share channels, or consolidate your workspace or channels with other workspaces or channels, and these choices and instructions may result in the access, use, disclosure, modification or deletion of certain or all User Content.

Section 4

The Relationship Between You, Customer and Us

AS BETWEEN US AND CUSTOMER, YOU AGREE THAT IT IS SOLELY CUSTOMER’S RESPONSIBILITY TO (A) INFORM YOU AND ANY USERS OF ANY RELEVANT CUSTOMER POLICIES AND PRACTICES AND ANY SETTINGS THAT MAY IMPACT THE PROCESSING OF USER CONTENT; (B) OBTAIN ANY RIGHTS, PERMISSIONS OR CONSENTS FROM YOU AND ANY USERS THAT ARE NECESSARY FOR THE LAWFUL USE OF USER CONTENT AND THE OPERATION OF THE ONE TUSK SERVICES; (C) ENSURE THAT THE TRANSFER AND PROCESSING OF USER CONTENT UNDER THE CONTRACT IS LAWFUL; AND (D) RESPOND TO AND RESOLVE ANY DISPUTE WITH YOU AND ANY USER RELATING TO OR BASED ON USER CONTENT, THE ONE TUSK SERVICES OR CUSTOMER’S FAILURE TO FULFILL THESE OBLIGATIONS. ONE TUSK MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, TO YOU RELATING TO THE ONE TUSK SERVICES, WHICH ARE PROVIDED TO YOU ON AN “AS IS” AND “ AS AVAILABLE” BASIS.

Section 5

Acceptable Uses and Acceptable Use Policy

You Must be Over the Legal Age

To the extent prohibited by applicable law, the One Tusk Services are not intended for and should not be used by anyone under the age of thirteen. You represent that you are over the age of thirteen and are the intended recipient of Customer’s invitation to the Services. You represent that you are not a resident of the European Union and that you are not accessing the One Tusk Properties and the One Tusk Services from the European Union. You may not access or use the One Tusk Services for any purpose if any of the representations in the preceding sentences are not true. Without limiting the foregoing, you must be of legal working age.

Acceptable Use Policy

To help ensure a safe and productive work environment, all Users must comply with our Acceptable Use Policy, below, and any applicable policies established by Customer. If you see inappropriate behavior or content, please report it to your employer.

One Tusk Acceptable Use Policy

Required User actions

• comply with all User Terms of Use, including the terms of this Acceptable Use Policy;

• comply with all applicable laws and governmental regulations, including, but not limited to, all intellectual property, data, privacy, and export control laws, and regulations promulgated by any government agencies, including, but not limited to, the U.S. Securities and Exchange Commission, and any rules of any national and other securities exchanges;

• upload and disseminate only User Content to which Customer owns all required rights under law and under contractual and fiduciary relationships (such as proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements) and do so only consistent with applicable law;

• use commercially reasonable efforts to prevent unauthorized access to or use of the One Tusk Services;

• keep passwords and all other login information confidential;

• monitor and control all activity conducted through your account in connection with the One Tusk Services;

• promptly notify us if you become aware of or reasonably suspect any illegal or unauthorized activity or a security breach involving your accounts or teams, including any loss, theft, or unauthorized disclosure or use of a username, password, or account; and

• comply in all respects with all applicable terms of the third party applications, including any that Customer elects to integrate with the One Tusk Services that you access or subscribe to in connection with the One Tusk Services.

Prohibited User activities

• permit any third party that is not a User to access or use a username or password for the One Tusk Services;

• share, transfer or otherwise provide access to an account designated for you to another person;

• use the One Tusk Services to store or transmit any User Content that may infringe upon or misappropriate someone else’s trademark, copyright, or other intellectual property, or that may be tortious or unlawful;

• upload to, or transmit from, the One Tusk Services any data, file, software, or link that contains or redirects to a virus, Trojan horse, worm, or other harmful component or a technology that unlawfully accesses or downloads content or information stored within the One Tusk Services or on the hardware of One Tusk or any third party;

• attempt to reverse engineer, decompile, hack, disable, interfere with, disassemble, modify, copy, translate, or disrupt the features, functionality, integrity, or performance of the One Tusk Services (including any mechanism used to restrict or control the functionality of the Services), any third party use of the One Tusk Services, or any third party data contained therein (except to the extent such restrictions are prohibited by applicable law);

• attempt to gain unauthorized access to the One Tusk Services or related systems or networks or to defeat, avoid, bypass, remove, deactivate, or otherwise circumvent any software protection or monitoring mechanisms of the One Tusk Services;

• access the One Tusk Services in order to build a similar or competitive product or service or copy any ideas, features, functions, or graphics of the One Tusk Services;

• use the One Tusk Services in any manner that may harm minors or that interacts with or targets people under the age of thirteen;

• engage in activity that incites or encourages violence or hatred against individuals or groups;

• impersonate any person or entity, including, but not limited to, an employee of ours, an “Administrator”, an “Owner”, or any other User, or falsely state or otherwise misrepresent your affiliation with a person, organization or entity;

• use the One Tusk Services to provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act or other laws and regulations concerning national security, defense or terrorism;

• access, search, or create accounts for the One Tusk Services by any means other than our publicly supported interfaces (for example, “scraping” or creating accounts in bulk);

• send unsolicited communications, promotions or advertisements, or spam;

• place any advertisements within a One Tusk client;

• send altered, deceptive or false source-identifying information, including “spoofing” or “phishing”;

• abuse referrals or promotions to get more credits than deserved;

• sublicense, resell, time share or similarly exploit the One Tusk Services;

• use the One Tusk Services for consumer purposes, as Jamm is intended for use by businesses and organizations;

• access or use the One Tusk Services on behalf of, or for the benefit of, any patent assertion entity;

• use contact or other User information obtained from the One Tusk Services (including email addresses) to contact Users outside of the One Tusk Services without their express permission or authority or to create or distribute mailing lists or other collections of contact or user profile information for Users for use outside of the One Tusk Services; or

• use contact or other User information obtained from the One Tusk Services (including email addresses) to contact Users outside of the One Tusk Services without their express permission or authority or to create or distribute mailing lists or other collections of contact or user profile information for Users for use outside of the One Tusk Services; or

• authorize, permit, enable, induce or encourage any third party to do any of the above.

Section 6

You Are Here At the Pleasure of Customer (and Us)

These User Terms remain effective until Customer’s subscription for you expires or terminates, or your access to the One Tusk Services has been terminated by Customer or us. Please contact Customer if you at any time or for any reason wish to terminate your account, including due to a disagreement with any updates to these User Terms.

Section 7

Limitation of Liability

If we believe that there is a violation of the Contract, User Terms, or any of our other policies that can simply be remedied by Customer’s removal of certain User Content or taking other action, we will, in most cases, ask Customer to take action rather than intervene. We may directly step in and take what we determine to be appropriate action (including disabling your account) if Customer does not take appropriate action or we believe there is a credible risk of harm to us, the One Tusk Services, Users, or any third parties. IN NO EVENT WILL YOU OR WE HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNLESS YOU ARE ALSO A CUSTOMER (AND WITHOUT LIMITATION TO OUR RIGHTS AND REMEDIES UNDER THE CONTRACT), YOU WILL HAVE NO FINANCIAL LIABILITY TO US FOR A BREACH OF THESE USER TERMS. OUR MAXIMUM AGGREGATE LIABILITY TO YOU FOR ANY BREACH OF THE USER TERMS IS ONE HUNDRED DOLLARS ($100) IN THE AGGREGATE. THE FOREGOING DISCLAIMERS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW AND DO NOT LIMIT EITHER PARTY’S RIGHT TO SEEK AND OBTAIN EQUITABLE RELIEF.

Section 8

Application of Consumer Law

The One Tusk service Jamm is a workplace tool intended for use by businesses and organizations and not for consumer purposes. To the maximum extent permitted by law, you hereby acknowledge and agree that consumer laws do not apply. If however any consumer laws (e.g., in Australia, the Competition and Consumer Act 2010 (Cth)) do apply and cannot otherwise be lawfully excluded, nothing in these User Terms will restrict, exclude or modify any statutory warranties, guarantees, rights or remedies you have, and our liability is limited (at our option) to the replacement, repair or resupply of the One Tusk Services or the pro-rata refund to Customer of pre-paid fees for your subscription covering the remainder of the term.

Section 9

Survival

The sections titled “The Relationship Between You, Customer, and Us,” “Limitation of Liability,” and “Survival,” and all of the provisions under the general heading “General Provisions” will survive any termination or expiration of the User Terms.

Section 10

General Provisions

Email and One Tusk Messages

Except as otherwise set forth herein, all notices under the User Terms will be by email, although we may instead choose to provide notice to Users through the One Tusk Services. Notices to One Tusk should be sent to contact@jamm.app. A notice will be deemed to have been duly given (a) the day after it is sent, in the case of a notice sent through email; and (b) the same day, in the case of a notice sent through the One Tusk Services. Notices under the Contract will be delivered solely to Customer in accordance with the terms of that agreement.

Privacy Policy

Please review our Privacy Policy for more information on how we collect and use data relating to the use and performance of our products.

Modifications

As our business evolves, we may change these User Terms. If we make a material change to the User Terms, we will provide you with reasonable notice prior to the change taking effect either by emailing the email address associated with your account or by messaging you through the One Tusk Services. You can review the most current version of the User Terms at any time by visiting this page. Any material revisions to these User Terms will become effective on the date set forth in our notice, and all other changes will become effective on the date we publish the change. If you use the One Tusk Services after the effective date of any changes, that use will constitute your acceptance of the revised terms and conditions.

Waiver

No failure or delay by either party in exercising any right under the User Terms, including the Acceptable Use Policy, will constitute a waiver of that right. No waiver under the User Terms will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver.

Severability

The User Terms, including the Acceptable Use Policy, will be enforced to the fullest extent permitted under applicable law. If any provision of the User Terms is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of the User Terms will remain in effect.

Assignment

You may not assign any of your rights or delegate your obligations under these User Terms, including the Acceptable Use Policy, whether by operation of law or otherwise, without the prior written consent of us (not to be unreasonably withheld). We may assign these User Terms in their entirety (including all terms and conditions incorporated herein by reference), without your consent, to a corporate affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of our assets.

Governing Law; Venue; Fees

The User Terms, including the Acceptable Use Policy, and any disputes arising out of or related hereto, will be governed exclusively by the same applicable governing law of the Contract, without regard to conflicts of laws rules or the United Nations Convention on the International Sale of Goods. The courts located in the applicable venue of the Contract will have exclusive jurisdiction to adjudicate any dispute arising out of or relating to the User Terms, including the Acceptable Use Policy, or its formation, interpretation or enforcement.

Each party hereby consents and submits to the exclusive jurisdiction of such courts. In any action or proceeding to enforce rights under the User Terms, the prevailing party will be entitled to recover its reasonable costs and attorney’s fees.

Entire Agreement

The User Terms, including any terms incorporated by reference into the User Terms, constitute the entire agreement between you and us and supersede all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. To the extent of any conflict or inconsistency between the provisions in these User Terms and any pages referenced in these User Terms, the terms of these User Terms will first prevail; provided, however, that if there is a conflict or inconsistency between the Contract and the User Terms, the terms of the Contract will first prevail, followed by the provisions in these User Terms, and then followed by the pages referenced in these User Terms (e.g., the Privacy Policy). Customer will be responsible for notifying Users of those conflicts or inconsistencies and until such time the terms set forth herein will be binding.

Section 11

Dispute Resolution By Binding Arbitration

PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.

a. Agreement to Arbitrate

This Dispute Resolution by Binding Arbitration section is referred to in this Terms of Use as the “Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between you and One Tusk, whether arising out of or relating to this Terms of Use (including any alleged breach thereof), the One Tusk Services, any advertising, any aspect of the relationship or transactions between us, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into this Terms of Use, you and One Tusk are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.

b. Prohibition of Class and Representative Actions and Non-Individualized Relief

YOU AND ONE TUSK AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND ONE TUSK AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S), EXCEPT THAT YOU MAY PURSUE A CLAIM FOR AND THE ARBITRATOR MAY AWARD PUBLIC INJUNCTIVE RELIEF UNDER APPLICABLE LAW TO THE EXTENT REQUIRED FOR THE ENFORCEABILITY OF THIS PROVISION.

c. Pre-Arbitration Dispute Resolution

One Tusk is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing customer support at contact@jamm.app. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to One Tusk should be sent to contact@jamm.app (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If One Tusk and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or One Tusk may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by One Tusk or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or One Tusk is entitled.

d. Arbitration Procedures

Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Consumer Arbitration Rules (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, http://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, http://www.adr.org/consumer_arbitration. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms of Service as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under the Terms of Use and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.

Unless One Tusk and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If your claim is for $1,000 or less, One Tusk agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $1,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.

e. Costs of Arbitration

Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. If the value of the relief sought is $7,000 or less, at your request, One Tusk will pay all Arbitration Fees. If the value of relief sought is more than $7,000 and you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, One Tusk will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, One Tusk will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys’ fees will be governed by the AAA Rules.

f. Confidentiality

All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.

g. Severability

If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the subsection (b) titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of subsection (b) above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” are invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void, unless such provisions are deemed to be invalid or unenforceable solely with respect to claims for public injunctive relief. The remainder of the Terms of Use will continue to apply.

h. Future Changes to Arbitration Agreement

Notwithstanding any provision in this Terms of Use to the contrary, One Tusk agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a User of the One Tusk Services, you may reject any such change by sending One Tusk written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted these Terms of Use (or accepted any subsequent changes to these Terms of Use).

i. Judicial Reference

WITHOUT INTENDING IN ANY WAY TO LIMIT THE PARTIES’ AGREEMENT TO WAIVE THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY, if the above waiver of the right to a trial by jury is not enforceable, the parties hereto agree that any and all disputes or controversies of any nature between them arising at any time shall be decided by a reference to a private judge, mutually selected by the parties (or, if they cannot agree, by the Presiding Judge of San Francisco County, California Superior Court) appointed in accordance with California Code of Civil Procedure Section 638 (or pursuant to comparable provisions of federal law if the dispute falls within the exclusive jurisdiction of the federal courts), sitting without a jury, in San Francisco County, California; and the parties hereby submit to the jurisdiction of such court. The reference proceedings shall be conducted pursuant to and in accordance with the provisions of California Code of Civil Procedure §§ 638 through 645.1, inclusive. The private judge shall have the power, among others, to grant provisional relief, including without limitation, entering temporary restraining orders, issuing preliminary and permanent injunctions and appointing receivers. All such proceedings shall be closed to the public and confidential and all records relating thereto shall be permanently sealed. If during the course of any dispute, a party desires to seek provisional relief, but a judge has not been appointed at that point pursuant to the judicial reference procedures, then such party may apply to the San Francisco County, California Superior Court for such relief. The proceeding before the private judge shall be conducted in the same manner as it would be before a court under the rules of evidence applicable to judicial proceedings. The parties shall be entitled to discovery which shall be conducted in the same manner as it would be before a court under the rules of discovery applicable to judicial proceedings. The private judge shall oversee discovery and may enforce all discovery rules and orders applicable to judicial proceedings in the same manner as a trial court judge.

j. Scope of Authority.

The parties agree that the selected or appointed private judge shall have the power to decide all issues in the action or proceeding, whether of fact or of law, and shall report a statement of decision thereon pursuant to California Code of Civil Procedure § 644(a). Nothing in this paragraph shall limit the right of any party at any time to exercise self-help remedies or obtain provisional remedies. The private judge shall also determine all issues relating to the applicability, interpretation, and enforceability of this paragraph.

Contacting One Tusk

Please also feel free to contact us if you have any questions about One Tusk’s User Terms of Use or Terms of Service. You may contact us at contact@jamm.app or at our mailing address below:

One Tusk, Inc.
2694 Kinney Drive
Walnut Creek, CA 94595