Last updated: September 2021
Walnut Tech Inc. (“Walnut“, “us“, “our“, or “we“), a company incorporated in the State of Delaware, has developed a platform for management of sales demos (“Platform“). These Terms of Service (“Terms“) govern the access and use of the Platform and the services available thereon (“Services“) by Walnut’s customers (“Customer“) and their authorized personnel (“Authorized Users“). Walnut’s Privacy Notice (“Privacy Notice“) governs Walnut’s collection, processing and transfer of any Personal Data (as such term is defined in the Privacy Notice). “You” means a Company (as defined below) using the Services and/or any Authorized User using the Services on behalf of a Company.
Clicking on the button marked “I agree” signifies your assent to these Terms on your own behalf and as an Authorized User on behalf of an entity or company (“Company“) that is a Customer.
Changes may be made to these Terms from time to time and continued use of the Services following any changes to these Terms signifies assent to the amended Terms.
During the Term (as defined below) and subject to the terms and conditions hereof, Walnut shall provide Customer with a limited, revocable, non-exclusive, non-transferrable right to use the Platform and Services, solely for internal business purposes.
2. Account Registration
2.1. Customer may designate certain of its personnel as “Authorized Users” who will have access to the Customer’s account on the Platform. In order to access the Platform and Services, each Authorized User will be required to register an account to be linked to the Customer’s account. One of the Customer’s Authorized Users shall be designated as an “administrator” and shall be able to add and remove Authorized Users and shall have access to certain features or Services that are not available to the Customer’s other Authorized Users. Use of the Platform and Services by Authorized Users will be subject to these Terms and the Privacy Notice, as may available within the Platform from time to time.
2.2. During the Term, Customer may register accounts for up to the total maximum number of Authorized Users as selected as part of the registration process. To the extent that the Customer provides any personal data to Walnut as part of the process of registration of Authorized Users, Customer represents that (i) it has obtained all necessary consents required under applicable law to provide such personal data to Walnut and to allow Walnut to process and share such data for the provision of the Services, and (ii) it shall ensure that a record of such consents is maintained, all as required under applicable law.
2.3. Any individual registering on behalf of a Company, hereby represents that he or she is authorized to enter into, and bind the Company to these Terms and register as a Customer for use of the Services. Such individual is solely responsible for ensuring that these Terms are in compliance with all laws, rules, and regulations applicable to the Company. The right to access the Services is revoked where these Terms or use of the Services is prohibited.
2.4. Customer and each Authorized User undertake to notify Walnut immediately in the case of any unauthorized use of an Authorized User’s account or password. Customer shall be fully and solely responsible for the security of any computer system and/or mobile device used by any Authorized User and all activity on any Authorized User’s account, even if such activities were not committed by the Authorized User. Walnut will not be liable for any losses or damage arising from unauthorized use of the Services, and Customer and each Authorized User agree to indemnify and hold Walnut harmless for any unauthorized, improper or illegal use of Authorized User accounts and any charges and taxes incurred, unless Walnut has been notified via e-mail that the relevant account has been compromised and has requested that access to it be blocked.
3. Service Levels
3.1. Walnut shall use reasonable commercial efforts to diagnose and correct verifiable and reproducible technical issues in the Platform within a reasonable period of time when reported to Walnut on Business Days during Business Hours (both as defined below), in accordance with the response table below. Customer shall make best efforts to assist Walnut in resolution of the problem. Any issues should be reported to email@example.com.
3.2. Walnut does not guarantee that the Platform will be available at all times or during any down time
(a) caused by outages to any public Internet backbones, networks or servers;
(b) caused by any actions of Customer or any third party or by failures of Customer’s software, equipment, systems, other technology, or local access services;
(c) previously scheduled for purposes of system maintenance, backup and upgrade functions for the Services (“Scheduled Downtime“);
(d) relating to events beyond Walnut’s reasonable control such as strikes, fires, floods, war, governmental action, labor conditions, natural disasters, interruptions in a third-party processor’s systems or any services not controlled by Walnut or related problems thereto.
5. Representations and Warranties
5.2. Walnut Representations. Walnut represents and warrants that (a) it is a company duly organized under applicable law, (b) it has the authority to enter into these Terms; (c) the execution and performance of these Terms does not conflict with any contractual obligations it has to any third party or legal requirement; and (d) it will use commercially reasonable efforts to provide the Services faithfully, diligently, and with skill and ability in accordance with industry standard.
5.1. Customer Representations. Customer represents and warrants that (a) it is a company duly organized under applicable law, (b) it has the authority to enter into these Terms; (c) the execution and performance of these Terms does not conflict with any contractual obligations it has to any third party or legal requirement; (d) it shall at all times use the Platform and Services in compliance with applicable law; (e) it has all right, license and consent required under applicable law to provide Walnut with the Customer Materials (as defined below); and (f) any materials that it provides, including in the Customer Materials do not and will not infringe the intellectual property, privacy, publicity, moral, or any other rights of any third party and Walnut’s use thereof in accordance with the terms of these Terms does not and will not infringe upon any third party’s right.
5.3. Authorized User Representations. Each Authorized User represents and warrants that (a) any and all registration information Authorized User submits is truthful and accurate; (b) Authorized User will maintain the accuracy of such information; (c) Authorized User is 18 years of age or older, and has the ability to form a binding contract; (d) the execution and performance of these Terms does not conflict with any contractual obligations it has to any third party or legal requirement; (e) Authorized User shall at all times use the Platform and Services in compliance with applicable law; (f) any User Content (as defined below) that it provides (i) complies with applicable law; (ii) does not infringe any third-party’s rights; and (iii) it has all necessary rights needed to submit such User Content.
6. User Content
6.1. Customer and Authorized Users will be permitted to upload certain content, including but not limited to images, pictures, and/or feedback on or through the Platform, referred to herein as “User Content“.
6.2. Walnut does not endorse any User Content or any opinion, recommendation, or advice expressed in any User Content and expressly disclaims any and all liability in connection with the User Content. Walnut disclaims all liability, regardless of the form of action, for the acts or omissions of any and all users (including unauthorized users) that are not solely due to Walnut’s gross negligence or willful misconduct, whether such acts or omissions occur during the use of the Services or otherwise.
6.3. Walnut has no obligation to accept, display, or maintain any User Content. Moreover, Walnut reserves the right to remove and permanently delete any User Content, without notice and for any reason. Customer and Authorized User are fully and solely responsible for any User Content that uploaded by Customer and/or Authorized User, as applicable, to the Platform.
6.4. Without limiting the foregoing, Customer and Authorized User agree that Customer and /or any Authorized User on its behalf will not transmit, submit or upload any User Content or act in any way that:
6.4.1. restricts or inhibits use of the Services;
6.4.2. violates the legal rights of others, including defaming, abuse, stalking or threatening users or individuals;
6.4.3. infringes (or results in the infringement of) the intellectual property, moral, publicity, privacy, or other rights of any third party;
6.4.4. is (or should be reasonably be believed to be) in furtherance of any illegal, counterfeiting, fraudulent, pirating, unauthorized, or violent activity, or that involves (or should be reasonably be believed to involve) any stolen, illegal, counterfeit, fraudulent, pirated, or unauthorized material;
6.4.5. does not comply with all applicable laws, rules and regulations;
6.4.6. posts, stores, transmits, offers, or solicits anything that contains the following, or that contains links to the following or to locations that in turn contain links to the following:
6.4.7. material that Walnut determines to be offensive (including material promoting or glorifying hate, violence, bigotry, or any entity (past or present) principally dedicated to such causes or items associated with such an entity),
6.4.8. material that is racially or ethnically insensitive, material that is defamatory, harassing or threatening,
6.4.9. pornography or obscene material,
6.4.10. any virus, worm, trojan horse, or other harmful or disruptive component; or
6.4.11. anything that encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law or regulation or is otherwise inappropriate or offensive.
6.5. Walnut may, at its sole discretion, choose to monitor User Content for inappropriate or illegal behavior, including through automatic means, provided however, that Walnut reserves the right to treat User Content as content stored at the direction of users for which Walnut will not exercise editorial control except when violations are directly brought to Walnut’s attention.
Customer shall not and shall not allow any Authorized User or any third party to (attempt) to (a) decipher, decompile, disassemble, or reverse-engineer any of the software used to provide the Platform and/or Services; (b) circumvent, disable, or otherwise interfere with features of the Platform and/or Services related to security or access; (c) use any robot, spider, search or retrieval application, or any other manual or automatic device or process to retrieve, index, data-mine, or in any way reproduce or circumvent the navigational structure or presentation of the Platform and/or Services; (d) harvest, collect or mine information about users of the Platform and Services; or (e) use or access other user’s account or password without permission. Except as expressly permitted herein, Customer and Authorized Users may not and may not allow any third party to copy, modify, duplicate, distribute, display, perform, sublicense, republish, retransmit, reproduce, create derivative works of, transfer, sell, further develop, download, or otherwise use the Platform, Services or any content thereon or use the Platform, Services, or content thereon in any manner not permitted by these Terms. Customer will not remove, alter or conceal any copyright, trademark, service mark or other proprietary rights notices incorporated in the Platform or Services.
8. Intellectual Property Ownership
8.1. Walnut IP. Walnut and its licensors, as the case may be, own all rights, title, and interest in the Platform and Services and all software and technical innovations that provide them, as well as in all modifications, enhancements, and updates thereto and all worldwide intellectual property rights, and the trademarks, service marks, and logos contained therein, whether registered and unregistered (“Walnut IP“). Customer and Authorized Users may not remove, alter or conceal any copyright, trademark, service mark or other proprietary rights notices incorporated in the Platform or other materials, if any. All trademarks are trademarks or registered trademarks of their respective owners. Except as expressly granted herein, nothing in these Terms grants Customer or any Authorized User any right to use any trademark, service mark, logo, or trade name of Walnut or any third party. Nothing in these Terms shall be interpreted to provide Customer or any Authorized User with any rights in the Walnut IP, the Platform or Services except the limited right to use the Platform and to receive the Services subject to the terms and conditions hereof. During the Term, Customer or Authorized Users may provide Walnut with feedback regarding the Platform and Services, which Walnut may use in any manner it deems appropriate, including for commercial purposes and as part of improved and/or future Services. Walnut shall not be subject to any non-disclosure or non-use obligations in respect of such feedback.
8.2. Customer IP. As between the parties, any content created or provided by Customer and/or its Authorized Users through the Platform, including any User Content and any demos created through the Platform, excluding the Walnut IP (“Customer Materials“) shall be the sole property of the Customer.
8.3. IP License. Customer hereby grants Walnut and its successors and assignees a perpetual, irrevocable, transferrable, worldwide, royalty-free, fully paid-up and non-exclusive license under any of its intellectual property, moral or privacy rights to use, copy, distribute, display, modify and create derivative works of any Customer Materials for the provision of the Services and for improvement of the Services and the Platform, in accordance with these Terms.
9. Confidential Information
9.1. Each of Customer and Walnut (each, a “Recipient“) may have access to certain non-public or proprietary information of the other party (each, a “Disclosing Party“) including any technical or non-technical information related to the other party’s business and current, future and proposed products, services, and (prospective) customers in each case whether or not specifically designated as “confidential” or “proprietary” (“Confidential Information“). Any feedback Customer or its Authorized Users may provide Walnut with regard to the Platform and/or Services shall be considered the Confidential Information of Walnut.
9.2. Nondisclosure Obligations. Except as permitted herein, Recipient may not use, disseminate, or in any way disclose the Confidential Information except for purposes of providing or receiving the Services or in furtherance of the relationship of the parties hereunder. Recipient may use the Confidential Information solely for the purposes set out in these Terms. Recipient shall treat all Confidential Information with the same degree of care as it accords to its own Confidential Information but in any event with a high degree of care. Recipient shall disclose Confidential Information only to those of its employees or representatives (including when Recipient is the Customer, its Authorized Users) who have a need to know the information in order for Recipient to perform its obligations under these Terms and which are bound by non-disclosure and non-use obligations no less restrictive than those set out herein. Without derogating from the aforesaid, Recipient shall bear full responsibility for any harm caused to Disclosing Party by disclosure to its employees or representatives. The obligations set forth in this section shall survive termination of these Terms for any reason.
9.3. Exclusions. Recipient’s obligations hereunder do not apply to any Confidential Information that Recipient can demonstrate by written records (a) was in the public domain at or subsequent to the time the Confidential Information and was received by Recipient through no act or omission of Recipient; (b) was rightfully in Recipient’s possession free of any obligation of confidence at or subsequent to the time the Confidential Information was communicated to Recipient by Disclosing Party; or (c) was independently developed by Recipient without use of, or reference to, any Confidential Information. A disclosure of any Confidential Information by Recipient in response to a law, regulation, or governmental or judicial order (“Order“) will not be considered to be a breach of these Terms or a waiver of confidentiality for other purposes; provided, however, that Recipient, to the extent permitted by such Order (a) provides prompt prior written notice thereof to Disclosing Party of such Order; (b) reasonably cooperates with Disclosing Party in opposing such disclosure, (c) only discloses to extent required by such Order.
10. Data Retention
Customer acknowledges and agrees that Walnut is not a data retention service. Customer must create backups of its data, and Walnut shall have no responsibility or liability in respect of any loss off or damage to any Customer data, including but not limited Customer Material.
11.1. Walnut shall defend, indemnify and hold harmless Customer (and its officers, directors and employees, including any Authorized Users) from and against any and all damages, costs, losses, liabilities or expenses (including court costs and reasonable attorneys’ legal fees) that Customer may suffer or incur in connection with any actual or threatened claim, demand, action or other proceeding by any third party arising from or relating to a claim that the Platform infringes any patent or copyright or misappropriates any trade secret, provided however, that Walnut shall have no responsibility or liability for any claim to the extent resulting from or arising out of (a) the use of the Platform not in compliance with these Terms or applicable law; (b) the combination of the Platform with any services not provided by Walnut; (c) the modification of the Platform by any party other than Walnut; or (d) the use of any version of the Platform that is not the most up-to-date version.
11.2. Customer and each Authorized User shall defend, indemnify and hold harmless Walnut, its licensors (and their respective officers, directors and employees) from and against any and all damages, costs, losses, liabilities or expenses (including court costs and reasonable attorneys’ legal fees) that Walnut may suffer or incur in connection with any actual or threatened claim, demand, action or other proceeding by any third party arising from or relating to (i) any breach of these Terms by the Customer, its Authorized Users, or anyone on their behalf; (ii) use or misuse of the Platform and/or Services by the Customer or any of its Authorized Users; or (iii) infringement of a third party’s intellectual property or other rights, including but not limited to materials included in the Customer Materials.
11.3. Either party claiming indemnification under this Section (“Indemnitee“) shall: (i) provide the other party (“Indemnifying Party“) with written notice of a claim promptly upon becoming aware thereof, (ii) allow Indemnifying Party to control the defense and settlement of the claim, provided that no settlement may be entered into without the consent of Indemnitee if such settlement would require any action on the part of Indemnitee and further provided that Indemnitee may engage its own counsel at its own expense; and (iii) reasonably cooperate with Indemnifying Party, at Indemnifying Party’s expense, in the defense and settlement of the claim.
12. DISCLAIMER OF WARRANTY
THE PLATFORM AND SERVICES ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS. WALNUT EXPRESSLY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS IN RESPECT OF THE PLATFORM AND SERVICES INCLUDING, WITHOUT LIMITATION, EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
13. LIMITATION OF LIABILITY
IN NO EVENT SHALL WALNUT OR ITS LICENSORS OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR CONSULTANTS HAVE ANY LIABILITY FOR ANY CONSEQUENTIAL, INDIRECT, DIRECT, SPECIAL OR PUNITIVE DAMAGES, ARISING OUT OF OR RELATING TO THE PLATFORM AND SERVICES OR THE ARRANGEMENTS CONTEMPLATED HEREIN, INCLUDING IN RESPECT OF LOST PROFITS, LOST BUSINESS OPPORTUNITIES, OR LOST DATA. WALNUT’S OR ITS LICENSORS’ MAXIMUM CUMULATIVE LIABILITY UNDER THIS AGREEMENT AND/OR ANY CAUSE OF ACTION IS LIMITED TO FEES ACTUALLY RECEIVED BY WALNUT FROM THE CUSTOMER IN RESPECT OF THE TWELVE (12) MONTHS IMMEDITALY PRECEDING THE CLAIM OR CAUSE OF ACTION. AS SUCH, IF CUSTOMER HAS MADE NO PAYMENTS DURING THE TERM, WALNUT SHALL HAVE NO LIABILITY IN RESPECT THEREOF.
14. Term and Termination
14.1. These Terms will be in effect with respect to a Customer as of the date they are accepted by the Customer and for a period of 12 (twelve) months (“Initial Subscription Term“) and shall renew automatically for successive 12 (twelve) month periods (each, a “Renewal Subscription Term“), unless terminated in accordance with the terms hereof. Either party may provide notice of its intention not to renew these Terms at least sixty (60) days prior to the applicable Renewal Term.
14.2. Notwithstanding the above, these Terms may be terminated with respect to any Customer as follows: (i) either Walnut or Customer may terminate these Terms by providing seven (7) days prior written notice to the other party, in the case of breach by the other party; (ii), either Walnut or Customer may terminate these Terms with immediate effect upon written notice to the other party, in the event the other party: (i) makes a general assignment for the benefit of its creditors; (ii) applies for, consents to, or acquiesces to the appointment of a receiver, trustee, custodian, or liquidator for its business or assets; (iii) files, or consents to or acquiesces in, a petition seeking relief or reorganization under any bankruptcy or insolvency laws.
14.3. Upon the expiration or termination of these Terms for any reason, Walnut shall terminate Customer’s Authorized Users’ accounts and, other than as set forth below, Customer’s Authorized Users shall have no further access to the Platform or Services or content available thereon and all Authorized Users shall delete the Platform from any devices on which they have been installed.
14.4. In addition, Walnut may suspend or terminate any Authorized User account with immediate effect and may take any other corrective action it deems appropriate upon occurrence of any of the following events: (i) termination, suspension or expiration of Walnut’s engagement with the applicable Customer; (ii) violation of the letter or spirit of these Terms, (ii) fraudulent, harassing or abusive behavior, (iii) behavior that is illegal or harmful to other users, third parties, or the business interests of Walnut. If an Authorized User account is terminated, such Authorized User may not rejoin Walnut again without express permission.
14.5. Sections 5-9, 11-13, 14.5, and 17 shall survive the expiration or termination of these Terms for any reason.
During the Term, Walnut may refer to Customer as a customer of Walnut, including by displaying Customer’s name and logo on Walnut’s website and other marketing materials.
16. Force Majeure
No party will be liable for any default or delay in its performance of its obligations under these Terms to the extent caused by, and only for the duration of, a natural disaster, act of God, act of war or terrorism, riot, third-party labor strike, pandemic or other similar occurrence beyond its reasonable control provided that the affected party make all reasonable efforts to comply with its obligations despite the occurrence. The party affected by any such occurrence shall, as soon as reasonably practicable, notify the other party of the occurrence and its expected duration and impact on such affected party’s performance. It is clarified that noncompliance with payment obligations may be delayed but will not be excused.
Any required notices pursuant to these Terms may be sent by registered mail or email transmission (with electronic confirmation of delivery) to the addresses of the parties hereto set out herein or provided upon registration, as applicable, and any such notice shall be deemed to have been received one (1) business day after delivery by courier, four (4) business days after delivery by registered mail and one (1) business day after email transmission and written confirmation receipt of such transmission.
These Terms set forth the entire agreement between the parties regarding the subject matter hereof and supersedes all other agreements or understandings between the parties regarding such matters. No amendments or waivers shall be effective unless in writing and executed by both parties. Walnut may assign all of its rights and obligations under these Terms to a purchaser of all or substantially all of Walnut’s assets or share capital. Customer and Authorized Users may not assign any rights or obligations under these Terms to any third party and assignments in violation of the foregoing shall be void. Nothing in these Terms creates any agency, employment, joint venture, or partnership relationship between the parties. These Terms shall be governed by the laws of the State of Delaware without regard to conflicts of law provisions thereof. The parties agree that the competent courts in the State of Delaware shall have exclusive jurisdiction regarding all disputes hereunder, and the parties expressly consent to such jurisdiction. If any part of these Terms is found invalid or unenforceable by a court of competent jurisdiction, such part shall be interpreted to give maximum effect to its terms as possible under applicable law, and the remainder of these Terms shall remain in effect.